For decades, they have been the poster boys of everything that’s corrupt, inefficient and depraved. Today, under pressure from civil society, as they take a major step in correcting that image, the question top most in my mind is whether they will swing totally the other way and enact a law that is as bad as not having one – or whether they will display some semblance of maturity in dealing with the issue on hand.
There is widespread dissent within the intelligentsia about certain provisions of the JLP. Some of the major ones are:
Anyone and everyone who understands how democratic institutions work knows that combining investigation, prosecution and powers of adjudication all under one organization is akin to extending an invitation to a future demagogue. And yet, that is what Anna is demanding. There is an attempt to confuse the issue – but the text of the JLP is very clear. It seeks the powers of passing orders as well. I have written about this in the recent past. Kiran Bedi was misleading the public when she said the Lokpal doesn’t have adjudication powers. Many panelists on TV talk shows obviously haven’t read the JLP – so they are arguing in a vacuum. “The Investigation officers of the Lokpal will have all the powers of police officers under the Prevention of Corruption Act and the CrPC and of the Director of Enforcement under FEMA or Prevention of Money Laundering Act. Further, members of Lokpal will have the powers of a civil court trying a suit under the Code of Civil Procedure.” This is the exact word-to-word statement taken from the JLP. Need more proof: “After completion of investigation, the Lokpal can impose punishment of dismissal, removal or reduction in rank against government servants. Here’s more: Lokpal may punish a public servant with imprisonment up to 6 months or fine or both – if he fails to comly with its order. And lastly: The Lokpal can issue search warrants. A warrant shall for all purposes be deemed to be a warrant issued by a court under section 93 of the Code of Criminal Procedure. Further, the JLP intends to control the judiciary as well as is clear from this text from the JLP: The order of the Lokpal will be subject to the writ jurisdiction of the HC under Article 226 of the Constitution. Ordinarily, the HC shall not stay the order. If it does, it must decide within 2 months; else the stay would be deemed to be vacated after two months and no further stay can be granted. So the Lokpal is the boss of the HC. Wow.
The second obscene provision relates to the Lokpal assuming powers of the law making.
Lokpal will also prepare a sentencing policy for the offences under the Prevention of Corruption Act and revising it from time to time. So now the Lokpal decides what the penalties will be. They may well decide one day that the penalty for corruption should be death. Sounds a little fanatical? It is.
There is a way out though. There is definitely merit in the Lokpal having its own investigative wing. Without that, it would be a toothless tiger. So by all means give it its own investigative wing. Maybe half the CBI’s investigative officers can be assigned to the Lokpal. And they would report to the Lokpal. The other half would continue under the Government and be used for the several other cases they handle. Lest people forget, the CBI also handles cases doled out by the HCs and the SC; as well as by state governments. But if the Lokpal is given its own investigative wing, then the powers to prosecute and pass orders must be taken away. The Lokpal can investigate and gather conclusive evidence. It must then be put up to a separate Directorate of Prosecution or some such body. And of course, all cases must be heard only by the judiciary.
The third major problem I have with the Lokpal is its status. It cannot be an independent body reporting to no one. Either it has to be a Constitutional authority reporting to the whole of Parliament, or it has to be a statutory body reporting to the concerned ministry. Since I am assuming the latter is unacceptable to all, the former it must be.
Also, I am uncomfortable with the selection committee proposed for the Lokpal members. It has to be a political body that selects them. The only control we the people have is over the elected members. By design, the Constitution vests authority in our elected authorities. Let there be balance amongst ruling party and opposition members by all means, but there is simply no case to allow it to be laden with unelected and self-annointed protectors of morality!
One last point. There has to be a good debate in Parliament on the pros and cons of the bill. The pressure put by Team Anna should not curtail the discussions. The last time this happened in Parliament – when a Sense of the House resolution was rushed through – has itself created more bad blood now. That’s what always happens when decisions are rushed through. If Anna wants to go on fast, no one can stop him. Frankly, I wouldn’t bother too much about it.
The real truth is that I am really worried the politicians will take the wrong call on the Lokpal today and in the next few days. It wont help anyone. This is a time for holding a level head – and deciding with intellect rather than by emotion. What will our politicians do?