Jan Lok Pal – Caveat Emptor
Anna Hazare has announced that he intends to fast unto death until the Jan Lokpal bill is adopted. He has disallowed all politicians from approaching him. According to him and his supporters, this is a “non violent non political” movement. Prominent supporters of this ‘non political’ movement are Kiran Bedi (Magasaysay – we will come to that shortly), Arvind Kejriwal (also Magasaysay), Medha Patkar, Aamir Khan, Madhur Bhandarkar, Shekar Kapur, among others. Sure enough tonight various media outlets NDTV, CNN-IBN and others hopped on to this bandwagon. Civil Society it appears is feeling good about this bill.
It pains me to see thousands of young and impressionable Indians being sold snake oil.
It is important to separate the two issues here :
- The Draft Jan Lokpal Bill itself.
- The voluntary assembly of Indians unaffiliated to any political outfit all outraged by high corruption.
The second point first. Such voluntary and spontaneous assembly of Indians is something to be proud of. This is a great event for sure. I have highest respect for Anna Hazare which makes this post a bit difficult to write.
The real purpose of this blog post.
Top 5 reasons why I think the Draft Jan Lokpal Bill is the most hare brained piece of document ever produced.
A Microsoft Word document of the draft bill can be found here. You can also search “Jan Lokpal Bill” on Google and use the Google Document Viewer.
5. Comparison with Hong Kong ombudsman bill is incorrect
Many supporters of the Draft Jan Lok Pal Bill are quick to drop Hong Kong as a reference. This is invalid because the Hong Kong Ombudsman has 1) no powers of prosecution 2) only produces a report and submits to the Chief Executive (like our PM) 3) is appointed by politicians. The first thing I did after being confronted with the Hong Kong Ombudsman parallel was to read the whole Hong Kong Ombudsman act. I suspected a bluff. I simply could not believe that other countries could allow civil society nominees to actually initiate prosecution against citizens. I was right.
4. Reckless in its promise and scope
An example is Section 10.2
(2) Lokpal, after getting such enquiries and investigations done as it deems fit, may take one or more of the following actions:
a. Close the case if prima facie, the complaint is not made out or
b. Initiate prosecution against public servants as well as those private entities which are party to the act
c. Order imposition of appropriate penalties under CCS Conduct Rules Provided that if an officer is finally convicted under Prevention of Corruption Act, major penalty of dismissal shall be imposed on such government servant.
d. Order cancellation or modification of a license or lease or permission or contract or agreement, which was the subject matter of investigation.
e. Blacklist the concerned firm or company or contractor or any other entity involved in that act of corruption.
In other words, from dismissing a case outright to cancellation to blacklisting a firm – the Lokpal has unbridled powers. We can only appeal to the merciful benevolence of its members.
3. Police and court all rolled into one
It does not matter that Lokpal members are not trained to be policemen, but I invite you to read Sec 12.
We are police.
12. Lokpal to be a deemed police officer: (1) For the purposes of section 36 of Criminal Procedure Code,
the Chairperson, members of Lokpal and the officers in investigation wing of Lokpal shall be deemed to be police officers.
(2) While investigating any offence under Prevention of Corruption Act 1988, they shall be competent to
investigate any offence under any other law in the same case.
We are also court.
See Section 10.2
(2) For the purpose of any such investigation (including the preliminary inquiry) the Lokpal shall
have all the powers of a civil court while trying a suit under the Code of Civil Procedure, 1908 , in respect
of the following matters, namely:-
(a) Summoning and enforcing the attendance of any person and examining him on oath;
(b) Requiring the discovery and production of any document;
(c) Receiving evidence on affidavits;
(3) Any proceeding before the Lokpal shall be deemed to be a judicial proceeding with in the
meaning of section 193 of the Indian Penal Code.
2. The all important selection policy
Jan Lokpal Bill is open ended and confers unlimited powers. So it goes without saying that selecting the Lok Pal Members is the single most important task. There are no checks and balances at all in the bill that would make it idiot member proof. In other words, if the mainstream institutions have been compromised, there is NOTHING in the bill that would prevent the Lokpal from being compromised too. It gets worse because of two reasons.
- The mainstream institutions (CVC, CBI, CAG, etc) can be turned around by people power every 5 years. That it doesnt seem to happen is due to there not being enough free agent voters in the system. We can hope for a 20-25% increase in free agent voters which will straighten these institutions in short time.
- A compromised Lokpal will wreak havoc and lay to waste the other institutions. There is no chance of getting them voted out.
Let me try to make it clearer.
If Indian citizens wanted to get a compromised Lok Pal off their backs – this is what they have to do. Study hard, do great research, win a Nobel Prize or work hard on social issues and win a Magasaysay Prize. Then and only then do you get to have a say in who the Lokpal members are. Experience has taught us that such a system is bound to fail. Very quickly such an immune and isolated group congeal around a particular social or ideological position.
Adhoc selection criteria without rhyme or reason very prone to dilution hence ruining spirit of the bill
Here is who gets to select the Lokpal members.
5. A selection committee consisting of the following shall be set up:
a. The Chairpersons of both Houses of Parliament
b. Two senior most judges of Supreme Court
c. Two senior most Chief Justices of High Courts.
d. All Nobel Laureates of Indian Origin
e. Chairperson of National Human Rights Commission
f.Last two Magsaysay Award winners of Indian origin
g. Comptroller and Auditor General of India
h. Chief Election Commissioner
i.Bharat Ratna Award winners
j. After the first set of selection process, the outgoing members and Chairperson of
The adhoc ness of this list will immediately lead to its dilution. Why on earth should Nobel Prize Winners of Indian origin , who are citizens of other countries get to decide the Lokpal members ? What is great about the “last two” Magasaysay award winners (Kejriwal) ? Why not last ten ? Why not Padmasri Winners ?
These awards cannot possibly confer powers to put other people in jail.
1. Unelected people cant dont put people in jail
I simply do not want unelected people to have the power to put other Indian citizens in jail.
What I want
Lokpal should be stripped of its prosecution powers, Lokpal members cannot have a police rank, Lokpal cannot blacklist or seize private property, cannot conduct judicial hearings.
Lokpal should promote the democratic way of addressing corruption.
- Highlighting exemplary work done by people like Subramanian Swamy. Who would incidentally be ineligible for Lokpal, Chandan Mitra (also ineligible), various government servants and professionals (all ineligible because you have to quit everything).
- Promoting the wisdom that politicizing corruption is the democratic way. If you are corrupt we gonna vote your ass out. No bullshit about “larger issue of systemic ingrained structural defects”.
- Be a true ombudsman like your Hong Kong counterpart. Time for me to turn it around. By all means accept complaints, investigate, gather evidence, and produce a report to the public and to the state. We bloggers will pick it up.