A. P. LEGAL SERVICES PVT. LTD.
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23-04-2011

Drafting lok pal bill: How to go about?

Corruption like monopoly price hike and inflation is a cancerous growth: Corruption in any form distorts law, contracts, the natural public and private household budgets, market prices and incomes and in effect affecting and distorting the savings and investments and growth rates.  It poses a threat to the orderly growth and political stability of the country.  Every effort is needed to remove/ minimize, if necessary with heavy criminal liabilities and punishments and without sparing any "public body" and lokpal bill should work toward that direction but within the separation of powers legal structure to protect the system and citizens

Public rights and protection of public interest should have corresponding legal remedies: Public right, public interest, in contrast with private rights and interests are provided with totally inadequate legal remedies in our legal system.  The Supreme Court has devised what is called public interest litigation in cases of violations of public rights/interest resulting in public injury and corruption in high places and abuse of governmental or public powers for political or private gain and also in case of deprived sections to enforce the rights in their favour because of poverty and similar reasons.  But with it is a rising trend of complaints of corruption and misuse of judicial power by some judges is also being heard and with it the demand for judicial accountability.

Govt Lokpal bill 2010(http://ibnlive.in.com/news/lokpal-bill-to-cover-pm/135533-3.html):The proposed govt. lokpal bill 2010 is inherently defective and does not serve the purpose of protecting the public interest or prevention of corruption in public life, rather increase the same and likely to abused affecting the direction and growth prospects of country.

Political party heads as main sources of corruption in public life:  National commission 2001 report exempting the PM point blank from the purview of lokpal is also not a good idea taking the historical global experience.  The mode of selection and appointment and removal proposed in lokpal bill is also wrong without sense of purpose and direction.  The prior sanction of speaker is obnoxious except against arrest while in session.  The vice president, Prime Minister, opposition leader etc as members of committee is repugnant to the idea of prevention of corruption in public life as the persons holding such offices are the main source of corruption and is the reason for the bill since they are the holders of office of political party heads and governmental bodies both legislative and Executive heads in our system of constitutional governance.

We need an altogether new direction on the lines of personal separation of powers advocated by Montesquieu applied to Indian conditions as a part of bringing about uniformity with leading progressive constitutional practices like in US , in an environment of India playing an important role in globalized economic and political world.

The first principle to be remembered is that no two powers to be entrusted to the same body of person over the same subject matter and it should be applicable lokpals.

Recent public anger and Anna Hazare:  The complaints that the governments wants to protect corrupt on political grounds than punish and punish only those who are not towing the line of ruling party in power and incase of compromise with opposition to suppress the complainants and votaries of public interest and therefore the credibility deficit, galoring complaints of discontent against the government handling corruption in high places and public interest complaints before the courts and distrust against all political parties have found their expression in recent public anger protests under the leadership of Anna Hazare.

Younger generation:  Are the Prime Minister, Sonia Gandhi, opposition leaders and political party heads in states and centre are really honest in their public statements to go with Anna Hazare in lokpal bill? and if so which direction? to frustrate it or to operationalise it to its desired purpose?. Public and younger generation have become more vigilant to assert the democratic reforms towards transparency and accountability, to synchronize the country legal system with the new global challenges and opportunities for their own survival and for that are ready to use the new tools of social networking.

Three problems and possible solution:   There are three problems afflicting our constitutional and legal system touching corruption in public life.

1.Lack of independence and autonomy to investigation and prosecution agencies like CBI,CVC and ED etc from political executive.

2. lack of separate appropriate speedy independent judicial machinery to protect public interest matters including the prevention of corruption in public life and by public servants.

3. Executive heads combining in themselves both legislative and executive powers and also heads of political parties under the constitution which is breeding the corruption and lack of transparency in public life.

The executive control over the police in all its functions is reminiscent of British colonial legacy not consistent with democratic system of governance with protection of citizens from arbitrary and tyrannical exercise of power with little constitutional remedies ineffective in the face of such power

The police functions under the home ministry have to divided in to three separate categories. 1. law and order2.investigation and 3. prosecution.

Home ministry:  The law and order is to be properly belonging to the home ministry to maintain its primary duty of maintenance of law and order.  And it should continue to be with home both at centre and state government levels.

Law and justice ministry:  The other two wings are to investigate the complaints of breaches of law and its investigation and prosecution as part of law and justice enforcement which include both IPC offences and non IPC offences under various enactments are to brought under law and justice ministry.

Equality before law:  Breaches of law both by state agencies, police and constitutional functionaries are as equal before law as any citizen and all accused are equal before law and law courts

The investigation of breeches of law and their prosecution where sufficient evidence to establish the offence are found require different exercise and qualifications and therefore they should also be separated but under one ministry with two directorates i.e. under the ministry of law and justice with autonomous status in its functioning .

The third wing courts and its hierarchy.  You call it lokpal public interest and anti corruption courts with lok pal heading the hierarchy the final court of law with supreme court having the judicial review of final court of public interest under article 141 of constitution of India..

Regular lokpal courts:  This will bring the desired changes in the institutional environment with protection of law, rights and liberties of citizens and public interest providing appropriate mechanism of legal remedies for redressal of grievances in matters of prevention of corruption as well as public interest matters.  In effect the jurisdiction of public interest litigation now gloring with objections of locus and maintainability will stand transferred to regular lokpal courts for close scrutiny on facts and law.

Contempt power:  Lokpals should have contempt power like that conferred on art 223 administrative tribunals.

Then the next step is the procedures for creating institutional environment for judicial independence and autonomy to investigation and prosecution agencies.

Appointment-removal procedures: This brings us to the selection, appointment and removal procedures to lok pal judges and directors of investigation and prosecution.

Selection and appointment procedures to be so devised that checks and balances within the separation of powers framework have to be observed.

The procedures for the selection and appointment of lok pal judges and directors of investigation and prosecution can be common but removal procedures should differ as the nature of function and qualifications differ. Judicial independence from legislative and executive is primacy for judicial powers than other powers.

Therefore, the selection of lokpal judges on recommendation of persons by government search committee comprising of same political heads like vice president, prime minister, speaker of lok sabha ,opposition leaders of both houses of parliament and home and law minister who are in fact the breeding grounds of corruption and lack of transparency as per the public perception and experience is begging the same question, the credibility and trust on the independence of lokpal and directors of investigation and prosecution agencies.

Advise and consent confirmation proceedings: The recommendatory procedure of search committee with representatives of government and other civil society representatives such as the bar council of India, leader of opposition party, retired chief justice of India and Indian chamber of commerce/business representative with secretary ministry of law and justice as the convenor may be a cumbersome procedure.  On the contrary the names selected by government be placed before the upper house of parliament for advise and consent through parliamentary Committee hearings and on confirmation by the upper house of parliament after due debate over the credential of such persons to hold the post , the president to appoint may be the opt method to bring in line with US senatorial confirmation procedure in India, to bring public scrutiny, transparency and independence to the appointee. in case of removal during the tenure period, same procedure as in case of sitting judges under the constitution and for the removal of directors, the previous advice and consent of lokpal.

PM should be covered with immunity from prosecution: So far as the coverage of public persons are concerned, the PM and any other constitutional functionaries like election commissioners, accountant and auditor general, they should be provided immunity from prosecution during their office or till they retire or demit the office and after the event the lokpal or director of prosecution can initiate prosecution on the basis of investigation already made and kept in abeyance due to immunity of the said functionary.  This is necessary so that they are not under constant fear of such frivolous prosecutions affecting their independent judgment on policymaking or requiring their prompt decision making affecting the country interests.

Directors and officers in charge of Public shareholding companies to be covered under lok pal :In defining the scope of public functionary or offices are concerned, it should encompass all private entities having public interest like public shareholding companies and public trusts, societies, cooperative bodies apart from state public undertakings, governmental and local self bodies. And the local hierarchy of lokpal judges should include the judge appointed at the expense of such bodies as an insider with judicial control over them by lokpal judges assisted in public interest violations or corrupt practices by a jury of persons from among the public corporate body and public representatives to assist him in finding of facts and the law and its enforcement .

There shall lie an appeal to lokpal from such findings of fact and law by local lokpal judge and final judicial review by Supreme Court to lay down the law of land under art 141 of constitution of India.

That the lokpal should posses all the judicial powers over the public interest matters to the exclusion of all courts including supreme court in which case the art 226,32 will have to be amended to exclude the public interest matters .

Lokpals should be paid out of corporate and department funds: To minimize the costs of restructuring the judicial remedies and spread the burdens on the sources of complaints of corruption and public interest violations is to obligate all public bodies including the corporate bodies as defined in lokpall bill, to create a judicial post like an ambudsmen within the industry or department and jury members consisting of experts and non experts to assist the judge in the public body and said judge to be under the control of lokpal for transfer and disciplinary control and as court subordinate to lokpal as the final appellate authority subject to supreme court only.

The industry/department lokpal judge be given with power to summon the files and witnesses to examine the complaints of citizens and other public bodies on points of public interest and complaints of discrimination, favourtism and rule of law with the assistance of jury members on questions of fact and give directions to the investigation and prosecution agencies to subject to orders in appeal to lokpal.

Lokpal power to give directions in pending cases: organisation of police in to separate law and order wing under the control of home department and investigation and prosecution under the control of law and justice department within the police department. the independent director- general investigation and director general( public prosecutions) with power to draft personnel from open market and on deputation should be brought under the control of law and justice ministry but subject to the directions from the lokpal on pending cases.