Now Kiran Bedi misinforms the public…..on Lokpal’s judicial powers

Kiran Bedi was asked a pointed question by Arnab on Times Now last night. The essence of the question was that most people were opposed to one body having powers of investigations, prosecution and passing orders under it. Kiran Bedi said something to the effect “Where does the Lokpal have judicial powers? It doesn’t”. At a different point in the interview, she pushed the point that the JLP was already ready for Parliament to pass with minor modifications. I have quoted from the JLP itself in the past to prove that the Lokpal as recommended by Team Anna does indeed have all powers vested with itself. Why then Kiran Bedi say what she did?

A quick recap may be relevant here. The below portion has been taken from my post of two days back:

“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:

1. After completion of investigation, the Lokpal can impose punishment of dismissal, removal or reduction in rank against government servants.
2. Lokpal may punish a public servant with imprisonment up to 6 months or fine or both – if he fails to comly with its order.
3. Lokpal can attach property and assets acquired by corrupt means and to confiscate them in certain cases.
4. 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.
5. 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).
6. The Lokpal can monitor phone calls, the internet etc
7. 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.”

What is your understanding of this text? That the Lokpal does or does not have powers to pass orders against the accused? The first three points as well as the fifth one clearly qualify as “passing orders”. The fourth point makes it even clearer: that the Lokpal will have powers of police officers as well as those of a civil court. The seventh point is even more disastrous. In no democratic country can warrants be issued by the investigating agency. That is the preserve of the judiciary.

So Kiran Bedi is wrong. The Lokpal as envisaged by her team clearly wants it to have all powers vested with it – including the powers to pass orders.

So why was she misinforming the public? Honestly, she is not the only one who has been doing this. I pointed out yesterday how Arvind Kejriwal did the same on the “Sense of the House” resolution – the resolution never stated that the three demands of Anna mentioned in it would all be part of a single Lokpal Act. And yet he made that assertion.

In any case, I am willing to give the benefit of doubt to Kiran Bedi. Maybe the wording of the JLP got jumbled up. Maybe the JLP itself has been amended since the time it was first posted. Is Team Anna willing to make those corrections now? Are they willing to remove all judicial powers from the Lokpal? If that is acceptable to them, I would be more than happy with the CBI being under the Lokpal. If that’s not acceptable, then the CBI must remain independent. And the courts must decide the punishment.

There are a couple of other powers that need to be trimmed. Lokpal will also prepare a sentencing policy for the offences under the Prevention of Corruption Act and revising it from time to time. This is unacceptable because the Lokpal would then be taking over the powers of Legislature. The other objectionable power is again one related to the judiciary: 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. It is not acceptable that the Lokpal can have the power to rule over the courts.

Let’s not forget that the way the Lokpal has been designed to be set up in the JLP, it is a largely nominated body. Unlike elected Parliamentarians, the Lokpal is not accountable to the people. It’s improper to vest so much authority in such a body. Further – even if a fraction of this authority is going to be given to the Lokpal – it should be definitely made into a Constitutional authority – so that it is responsible collectively to the Parliament. In an extreme situation, the elected reps should have the power to remove a demagogue.

Checks and balances are the essence of democracy. That much is enshrined in our Constitution. By making the Lokpal the way the JLP does it, we are removing all checks and balances. I fully support the need for the CBI to be made independent – but it cannot be given to the Lokpal to run. If it has to be under a civilian authority, it could be made into a Constitutional Body reporting collectively to Parliamentarians. It should be India’s premier investigations body to which many institutions other than the Lokpal can refer cases for investigation – most notably the Supreme Court and the High Courts. It is hardly fair that this body should be put under the Lokpal.

One of the comments on my earlier post mentioned that the same Lokpal member wouldn’t have all the powers. Different people would look at investigation, prosecution and adjudication. But that’s still not acceptable. Under an overall boss, directions could still be given to all three different members to act in a particular way. We are seeing today how Chidambaram apparently used his position as Home Minister to help a previous client of his by asking the investigating agency (the Delhi Police in this case) to withdraw the FIRs against him. This is bad enough. But imagine if he also had the powers over the judiciary – he would have ordered it to “rubber stamp” his decision so that it looked like a judicial decision rather than an Executive one.

One other comment I received was that in government departmental inquiries, the investigation and orders are passed by people in the same department. Again, that is different. For one, there is no criminal charges investigated in this manner. If a jail has to be ordered, the matter has to go to the courts. Secondly, there is no public interaction in an intra-departmental action. In the case of corruption cases, there is the public involved. Imagine if the Lokpal ordered a complainant to be put in jail…..that would be bizarre.

The real truth is that Kiran Bedi is spreading misinformation about the JLP. Media must expose such things. The truth must be put before everybody so that they can decide on the merits of the case.