Can Lokpal be investigator, prosecutor, jury & judge?

Just 70 days ago, the UPA government succumbed to the pressure exerted by Team Anna, which posed as civil society being supported by advocates and actors, ex-babus , bloggers and twitteratti, swamis and social activists. The high decibel show at Jantar Mantar numbed the government's political and constitutional thinking. 

Foxed by the red herring of Team Anna's popularity, the Manmohan Singh government quickly agreed for a joint committee to draft the Lokpal Bill only to realise the taste of the pudding is in its eating. Public placating of Team Anna was easy, but translating their exasperating demands was legally excruciating. 

Though the Congress has now stressed the government will not succumb to Team Anna's pressures, the draft prepared by both sides, despite their inherent disagreements, has one thing in common. 

Representatives of both Team Anna and government have perceived more or less a Lokpal who will investigate, prosecute and then change cloaks to stand as jury and judge. This all-rolled-into-one power Centre is abhorrent to any democratic system of governance, which gets its legitimacy from a fair system of justice delivery. 

Why did the government first succumb to Team Anna, then criticise it and now question its representatives' character? Does it reflect the vacillating mindset of the two power centres - the PM and the Congress president? Why did ministers rush to discuss with Team Anna on the one hand while on the other, a senior party leader publicly criticised the move? He also went around saying it was time for a young PM? 

The PM will celebrate his 80th birthday on September 26 next year. Rahul Gandhi will turn 42 in June 2012. Singh has not contested a Lok Sabha election, a victory in which transforms a candidate into a people's representative. Rahul has won twice from Amethi. 

It is difficult to judge Singh's feelings on the vacate-the-chair talk from within Congress circles when he is perceived to be engaged in finding solutions to the most trying situations, both political and social. 
But what must be worrying the PM and the entire political class is the confrontational build up between the representatives of people and the 'civil society' to garner space in the legislative arena in the name of participatory democracy. 

Can self-proclaimed representatives of civil society be recognised as harbingers of new legislative framework when the Constitution recognises only the Parliament and Assemblies as law-makers ? 

In the early 1970s, the famous Keshavananda Bharati case was argued before a 11-judge bench of the SC on Parliament's power to amend the Constitution. The Indira Gandhi government had argued that a political party enjoying two-thirds support in both Houses of Parliament could delete all provisions. 

The bench's shock and dismay forced the government to mould its arguments, "Though legally, there is no limitation to the amending power, there are bound to be political compulsions which make it impermissible for Parliament to exercise its amending power in a manner unacceptable to the people at large."

Baba Ramdev returns to Delhi, slams government for police action at Ramlila Maidan

Refuting the police claims that there was no lathicharge during the crackdown, he said Rajbala had injuries on her body. 

NEW DELHI: Three weeks after he was evicted from Delhi, yoga guru Baba Ramdev returned to the Capital and slammed the Manmohan Singh government over the police action at the Ramlila Maidan, where he and his supporters were protesting on the issue of black money. 

"Democracy was murdered at the Ramlila Maidan. The government can't silence us. We will continue to raise our voice against corruption," he said, addressing a press conference here after meeting Rajbala, one of the injured protestors. 

Refuting the police claims that there was no lathicharge during the crackdown, he said Rajbala had injuries on her body. "If the police says there was no lathicharge, then who did it? She is on a ventilator. If she lives, she won't be able to walk again," he said, adding that once her ventilator is removed it would require a miracle to save her. 

"At Ramlila Maidan, the police did not come to arrest me, but wanted to kill me. I won't give any evidence right now, because the case is pending with the Supreme Court," he said. He said the police attacked his supporters when they tried to extinguish the fire on the stage, which had been sparked off in an attempt to kill him. "The government is corrupt and now it has become cruel also," Ramdev said. The yoga guru also lent his support to Anna Hazare's team on the Lokpal bill saying the Prime Minister should be brought under its ambit. Ramdev's return adds to the troubles of the government, which is at loggerheads with Hazare's team. 

The Gandhian has threatened to go on fast if his team's version of the Lokpal bill was not passed in the Monsoon Session of Parliament. 

Ramdev said he does not belong to any political party and only represented people. The police action at Ramlila Maidan had brought the government under attack from the Opposition and large sections of society. Earlier, the government had tried to negotiate with Ramdev on his list of demands to recover black money from tax havens.

Our Lokpal draft real, Team Anna's just a dissent note: Moily

NEW DELHI: Law minister Veerappa Moily on Friday said the government draft on the Lokpal Bill had been "evolved" after the nine meetings of the joint drafting committee and would be one considered for further consultations. The Team Anna draft was "at best a dissent note", he said. 

Moily's statement is significant because so far it was felt the two drafts were parallel initiatives with some points of divergence. This assertion from one of the members of the panel and the law minister is a clear indication that as and when Lokpal Bill is taken up either at the Cabinet or the all-party meeting next month, the government version will take precedence. 

"The Lokpal drafting committee was constituted with five nominees of the government and five nominees of Anna Hazare with the intention of preparing a suggestive document for the actual process of drafting the Lokpal Bill. Now, after nine meetings, there have been several changes in the government draft compared to the one that was drawn up in 2010. As per the discussions, the Lokpal Bill 2011 has been prepared by the drafting committee. Nobody has rejected it. There was not a word of rejection in any of the meetings. The civil society draft may at best be a dissent note and it will be put to the government and political parties as such," Moily said. 

Moily also released what he called a clause by clause comparison between the government's version and the civil society version. The comparative statement, though, is largely an exercise in proving the superiority of the government draft, especially with respect to the contentious provisions. In fact, under most heads, the provisions of the Jan Lokpal Bill have been replaced by just a line about how the government Bill is better. 

On the matter of the selection committee for the Lokpal - an issue which emerged as a point of divergence in the meeting on June 15 - there is a detailed description of the government proposed selection committee. Where the Jan Lokpal provision should have been, there is a statement about how the government committee is wider, making the selection process "fair" and how the government Bill allows the selection committee greater maneuvering space regarding procedures. 

On the issue of jurisdiction of inquiry, the column for the Jan Lokpal Bill says, "It proposes to have jurisdiction over various functionaries by defining certain expressions. The government Bill widens the jurisdiction of Lokpal to ministers, MPs, group A officers... (and) other bodies under the government or controlled or financed by the government including other association of persons or trusts." 

On some sections like action on inquiry in relation to public servants not being ministers or members of Parliament, or action on inquiry against public servants or ministers and MPs, the Jan Lokpal column simply reads "Provisions differ materially". It is the same for confirmation of attachment of assets and on the power of Lokpal to recommend transfer or suspension of public servant accused of corruption. 

On annual statement of accounts, against the detailed description of the provisions in the government Bill, where the Jan Lokpal provisions should have been, it says, "Detailed provisions are there in the government Bill empowering CAG adequately on this behalf. Sketchy provision is made in Jan Lokpal Bill."

Manmohan Singh calls all-party meeting on Lokpal Bill on July 3

NEW DELHI: After nine meetings with Anna Hazare's team failed to evolve a consensus on the Lokpal bill , the government has called an all-party meeting on July 3 on the issue. 
At the meeting, convened by Prime Minister Manmohan Singh , the government is expected to place both drafts of the bill before the political parties. The Opposition has so far refused to divulge its stands on the contentious issues in the proposed anti-graft bill saying the government should first finalise its draft.

Ahead of the all-party meeting, Hazare's team tried to reach out to the BJP, which had backed the social activist's anti-corruption campaign. A delegation of activists - Kiran Bedi, Arvind Kejriwal and Manish Sisodia - met senior BJP leader LK Advani in Capital on Friday. 

However, Advani refrained from spelling out the party's views on the bill saying the BJP will discuss the issue with them later since party President Nitin Gadkari, leader of Opposition in Lok Sabha Sushma Swaraj and leader of Opposition in Rajya Sabha Arun Jaitley were out of town. He assured the activists that the party would have another meeting with them before July 3. 

The delegation told Advani about the deliberations in the joint draft committee meetings on the bill and the stand taken by Hazare's team. 

Though it said the intention was not to get any promises from the party on backing its version, the activists are hoping to capitalise on the Opposition party's support for the anti-corruption campaign. The bill has to eventually get the Parliament's approval. 

The Left parties have already indicated that they favoured bringing the prime minister's post under the ambit of the Lokpal bill. Although the BJP is yet to make its stand clear, party leaders have been recalling that former prime minister Atal Bihari Vajpayee had favoured the post falling in Lokpal's purview. Party sources said the issue is being examined. They said the BJP will first hear the government's point of view. With the monsoon session being put off to August, the government will have almost a month after the meeting to draft a bill. 

The government is opposed to scrutiny of PM, higher judiciary and the conduct of MPs in Parliament by the Lokpal, a stand which Hazare's team says makes the bill toothless. Hazare has threatened another indefinite fast if the bill fails to satisfy his team. 

Anna Hazare threatens the government to resume his fast-unto-death if his demand for a strong Lokpal Bill is not me

NEW DELHI: Gandhian activist Anna Hazare said on Thursday that he was ready to face bullets to achieve the aim of a stronger Lokpal Bill. He was responding in Pune to comments made a day earlier by Congress general secretary Digvijaya Singh, who said Hazare will be meted out the same treatment as Baba Ramdev.

"Anna is not afraid of death. They can fire bullets and not just use lathis to repress our agitation and the people of this country will decide whether India has a democratic rule or a dictatorship," said Hazare, who will resume his fast-unto-death on the day after the Independence day. Hazare's earlier fast in April successfully channelized the widespread disgust with corruption in India's public life, and forced the government to expedite a long-pending anti-graft legislation.

Singh clarified on Thursday that the media misquoted him and he never said Hazare would be handled using police force as in the case of Ramdev. Yoga Guru Ramdev, who attempted a similar protest in Delhi, was evicted from the capital in a midnight police operation that injusred scores of his supporters.

"I am surprised and pained at reports in today's newspapers which quoted me as saying that the treatment given to Ramdev would also be meted out to Anna Hazare," Singh said. Singh said that during his interaction with reporters in Jabalpur on Wednesday, what he said was that the Congress party had nothing to do with how the two were treated as it is always decided by the local administration after assessing the prevailing situation at that moment.

In an apparent dig at Hazare's coterie of activists, Singh suggested that instead of goading the 74-year-old activist to go on an indefinite hunger strike, his younger associates such as Arvind Kejriwal or Prashant Bhushan must go on a fast.

Hazare's fast and his associates' stubbornness in the subsequent negotiations had become a source of embarassment for the government, which was, by virtue of the circumstances, shown up as opposing an anti-graft legislation even when favouring a reasonable position on a number of matters. The frustration with this unlikely coalition with unconventional moral and political strength had permeated through the government and the Congress party as Hazare and associates mounted demands that were seen as extreme, such as death penalty as maximum punishment for graft.

Lokpal Bill: Govt draft misses out several Anna Hazare's proposals

NEW DELHI: Powers to tap phones, issuance of letters rogatory and recommendations for changes in work practices to reduce scope for corruption are among the proposals made by the Anna Hazare team in their Jan Lokpal Bill which do not find a mention in the government draft.

The draft submitted to the joint committee on Lokpal bill by the Hazare team also seeks power to the proposed ombudsman to acquire modern equipment necessary for proper investigation and inquire into the assets declaration statements filed by all MPs.

According to the Jan Lokpal Bill, an approporiate bench of Lokpal shall be deemed to be "designated authority under Section V of the Indian Telegraph Act empowered to approve interception and monitoring of messages of data or voice transmitted through telephones, Internet or any other medium... " In the powers and functions of the Lokpal and its officers section of the civil society's draft, the ombudsman can authorise a bench of the Lokpal to issue letters rogatory in relation to any case pending investigation.

This provision is in contrast to the stand taken by the Hazare team in the fourth meeting of the joint drafting committee held on May 23 when lawyer Shanti Bhushan clarified that the intent was to allow Lokpal to directly approach the court for letters rogatory and not to route such requests through the government. Bhushan's comment came after Home Minister P Chidambaram pointed out that the powers of issuance of letters rogatory was within the domain of the courts.

A letter rogatory is a formal request from a court to a foreign court for some type of judicial assistance. However, the proposed Lokpal will have powers to attach property of public servants accused of corruption and its investigating officers will have rights enjoyed by police like conducting searches, the government draft says.

The Lokpal and investigating officers authorised by it will have powers to attach property if the ombudsman has reason to believe that somebody is in possession of any proceeds of corruption. It can "provisionally" attach property for a period of 90 days.

However, the Lokpal will have to inform the Special Court about the attachment and if the latter feels that the attached property was acquired through corrupt means, then it can confirm the attachment till completion of the proceedings.

Making sense of the differences between Anna Hazare and govt on Lokpal Bill

Should the judiciary be included in the Lokpal's purview?

According to Team Anna, the courts are not doing enough to combat corruption in the judiciary. Which is why they should be under the Lokpal. If the government agrees, says Usha Ramanathan, an independent Delhi-based legal researcher, "It will impact the independence of the judiciary." Countering this the Anna Hazare team says, in the minutes of the 5th meeting of the joint drafting panel, that "there was no question of interfering with the judiciary and that only power for investigation was being sought". The government points out, in the same minutes, that "the Lokpal's decisions are subject to a judicial review. But, if the judges themselves are answerable to the Lokpal, could that create a situation where judges might be unwilling to go against the proposed anti-corruption watchdog?"

What about the prime minister?

Team Anna says existing laws do not prevent or preclude investigations into the post of the prime minister. The government says any investigation of the prime minister would lead to an institutional instability. And that the Lokpal is free to investigate the PM once his tenure ends. Says Congress MP Mani Shankar Aiyar: "I see no reason why the prime minister should not be within the ambit of the Lokpal. But this will have to be a collective decision that has to be first taken by the cabinet and then by Parliament."

What about the conduct of MPs and MLAs in the House?

This demand is partly rooted in the cash-forvotes scam of 2008. But, as Kishore Chandra Deo, who chaired the committee set up by the Parliament to enquire into the matter, the guilty MPs were expelled from the House. MPs, he says, have also been expelled for misusing the MPLADS programme and other offenses. "It's not like the current system is not working," he says. Aiyar says, the chairman of the Rajya Sabha and the Speaker of the Lok Sabha have "ample powers" to rusticate any member. The answer to everything does not lie in the Lokpal, he says. "In a democracy, Parliament is supreme. It cannot surrender its sovereignity."

Should the Lokpal oversee all bureaucracy or only the Joint Secretaries and above?