License Raj, Police Raj….now get ready for the draconian Lokpal Raj….

We’ve suffered under the License Raj for several decades after independence. We continue to suffer under Police Raj. And now – the way things are going – we might as well get ready to be subjected to the tyranny of the Lokpal Raj. For if the government agrees to put the CBI under the Lokpal that is what we will become.

This post of mine is not a political post. It’s not about the BJP or the Congress or any other party. Yes, there is opportunistic politics being played on the Lokpal issue; dangerous grandstanding being done. But I want to stay out of all that – and appeal to readers to evaluate the proposals of the JLP on merits…..and stop it from being adopted as a law.

There is also nothing new in what I am writing today. Many have written on these points; yet I feel adequate attention hasn’t been paid to them. The debate raging today is on whether the CBI’s anti-corruption wing should be put under the Lokpal. I am strongly against this. If this were done, we would be no different from Libya in the days of Gaddafi.

There are two reasons for this. Firstly, the Jan Lokpal Bill creates the institution of the Lokpal with entirely non-elected members. Those who do not represent the views of the people. Those who the people cannot throw out if they are unhappy with. The Lokpal comes with a fixed tenure of five years. The impeachment of the Lokpal is an extremely tedious process. Secondly, this non-elected body with no accountability to the people is sought to be vested with Hitleresque authority. The single authority of the Lokpal is to be vested with powers of investigation, prosecution and passing judgments. In no part of the civil and democratic world is this ever done.In all dictatorships, this is the rule.

Usually – in the democratic world – the powers to investigate and prosecute are separated and the powers to adjudicate are further separated out. It is well known that tyranny starts when there is a concentration of power. By giving all three powers to one single institution, tyranny is exactly what we will be getting from the Lokpal.

Take how the matter is handled presently in any part of the world. The power to investigate a crime is with the police (or similar authorities under different acts). The power to prosecute is with a separate prosecution set-up…..say the district attorney’s office. The prosecution makes sure that the police work as per laws and evidence is gathered in accordance of law. The power to punish – if proven guilty – is with the judiciary. The judiciary also acts as the protector of those who are not guilty, treating everyone as innocent unless proven otherwise. Under no condition can the police decide the punishment. We can well imagine what tyranny there would be if the police were authorized to pronounce judgment as well. In fact, the police does sometimes pronounce the judgment – though not officially – by keeping people locked up; by beating them up during investigation to extract confessions; by encounter killings; etc. In such cases, the police do in effect pronounce the verdict. We know what happens when the police behave like this. Now, if the Lokpal act is passed in the shape of the Jan Lokpal Bill – we will be legalizing such draconian conduct. Only this time, the police will be called the Lokpal.

If the anti-corruption wing of the CBI has to be put under the Lokpal – then the rights to prosecute and pronounce judgments must be taken away from it. But the JLP is very specific – it wants all the powers to itself. The wording of the JLP is very clear – and very scary. Here are some nuggets:

• After completion of investigation, the Lokpal can impose punishment of dismissal, removal or reduction in rank against government servants.
• Lokpal may punish a public servant with imprisonment up to 6 months or fine or both – if he fails to comly with its order.
• Lokpal can attach property and assets acquired by corrupt means and to confiscate them in certain cases.
• 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.
• The Lokpal can transfer a government servant if he is likely to destroy or tamper with evidence or influence witnesses (such decisions are normally taken by the judiciary).
• The Lokpal can monitor phone calls, the internet etc
• 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.

All of these take together show that the Lokpal will be one supreme authority which can receive complaints, investigate charges, prosecute the accused and pass judgments against them. Given the current mood in the country, the masses may well support such a draconian piece of legislation – but little do they know of the tyranny that they will themselves face in the years to come.

The history of tyrants is revealing. When Gaddafi was killed, there was much jubiliation in Libya and around the world. Gaddafi was a certified tyrant. Gaddafi ruled Libya for more than three decades. Today, it is impossible for people to remember or understand that Gaddafi was brought to power – with much love and affection by the people themselves – in much the same way as we are today wanting to bring the Lokpal into power. Gaddafi came to power on the back of a Libyan socialist revolution against King Idris’s rule. In fact, he called himself “The Brother Leader” in the early days and was much loved. Through much of his tenure, he was the face of the suppressed and the impoverished. He was not the traditional ruler; he was the new age reformer. And yet, with all the powers he vested in himself – to investigate, prosecute (soon they did away with this entirely) and punish, and to make laws, he became a tyrant.

The Lokpal is nearly certain to become a tyrant. It will not be answerable to the people at all. Just look at the way in which the Lokpal is proposed to be appointed. As per the JLP, the selection of a Lokpal member and the Chairperson will be made by a committee comprising of only 2 elected representatives (those who represent our views and who the people can throw out if they are unhappy) – the PM and the Leader of the Opposition. In addition, it will contain at least six others who owe absolutely no responsibility to the public. These are: two judges of the SC; 2 permanent Chief justices of the HC selected by a collegium of all SC judges; the CEC and the CAG; and all past Chairpersons of the Lokpal (so someone like Gaddafi would choose his successor – nice). Team Anna is misleading the public by suggesting that elected representatives are demons (though some of them certainly are) and that the others are all gods (that’s pure rubbish. All people – including the judiciary and members of civil society are corrupt and political in their own ways). This shows that the Lokpal as an institution – a huge body with huge powers within it – is one that need have no care or concern for the public (even though people today believe that it is being set up for them only).

We must remember that problems with an autocratic body like the proposed Lokpal start only after a decade or so. In the initial years, the sentiment of the people will prevent the Lokpal from abusing its authority. With the passage of time – and once the original bunch of well intentioned people are out – the tyranny starts to set in. This is exactly what happened post independence. The elected representatives of the day were all well intentioned people and visionaries – that’s why we were able to make such a strong Constitution in the first three years of independence. Within a decade however, the signs of decay had started. Today, we blame the entire political class. The same is bound to happen to the Lokpal.

There are already signs of the tyranny that is likely to come with the Lokpal. The JLP draft is replete with hints of what we should expect. The Lokpal – as proposed by Team Anna – will replace the elected government (in addition to the independent judiciary). Here’s something to mull about:

• Lokpal can recommend cancellation or modification of a lease/license/permission/contract or agreement if it was obtained by corrupt means and recommend blacklisting of a firm or company. The public authority shall either comply with the recommendation or reject the same within a month. In the event of a rejection, the Lokpal may approach the appropriate HC for seeking appropriate directions to be given to the public authority (This will bring governance to a total stop – even honest policies will be challenged and stopped).
• Lokpal will also prepare a sentencing policy for the offences under the Prevention of Corruption Act and revising it from time to time. (So the Lokpal may decide that someone who steals Rs 1 lac or more should be hanged. The Lokpal will take over such legislative powers).
• The Lokpal can stay the implementation of any decision. Public authorities can reject the same within 15 days and the Lokpal can approach the HC in appeal. (Again, the Lokpal is taking over the Executive’s role).

Team Anna has also been lying to the public. For eg., the government was derided on its recommendation that a frivolous complaint against a government functionary would attract imprisonment up to 2 years; while the sentence to a person found to be corrupt might  be as small as only 6 months. Guess what is there in the Jan Lokpal Bill? The one who complains against any member of the Lokpal can be sentenced to 1 year in prison for a frivolous complaint or one with malafide intention. Surprised? Don’t be. Here’s one more nugget 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. Wow. The JLP will put restrictions on the judiciary also.

We might as well forget about civil liberties. With the passage of this law, if the Lokpal has passed an order (and the whole pitch of Team Anna is that orders should be passed expeditiously), then the accused will be punished. The accused could be summarily put behind bars. Any relief can only come through appeals to the HC and above – and we know how many years that can take. I would much rather remain an accused and out on bail than a quickly adjudged accused (without the benefit of an independent trial) and held in jail as guilty. This is worse that Gaddafi’s Libya.

I am sorry, but the JLP is a piece of crap which should be burned up and thrown out. It’s a piece of legislation that will take democracy away from India. It will make the Lokpal into a tyrant like Gaddafi. The judiciary hasn’t spoken about the public wranglings on the Lokpal. But retired Chief Justices of the Supreme Court – including Justices Venkatchalliah and Verma – have. They have already warned us of the consequences of enacting the JLP. As Pinaki Mishra of the BJD mentioned on TV last night “We received lots of represenations from all kinds of learned people – and most of them were against the JLP”.

The real truth is that the Lokpal should not be given control of all three – investigation, prosecution and adjudication. If the CBI is put under the Lokpal, then the judicial and prosecutional functions should be removed. In any case, the judicial functions should be removed. We cannot have an un-elected body – unaccountable to the people – rule over the elected representatives (the Executive and Parliament – which is accountable to us) and the judiciary (the protectors of the Constitution). This is not about petty politics. It is about India and its democracy. Down with the JLP…..