Tag Archive | Lokpal

Defence Bribery Affair Underscores Need For Appointing Lok Pal – By Mukesh Jhangiani

                                                                                                                               March 18, 2001

Defence Bribery Affair Underscores Need For Appointing Lok Pal

By Mukesh Jhangiani
United News of India

Indian Prime Minister Morarji Desai in New Del...

Morarji Desai who suggested in 1966 creating an ombudsman or Lok Pal became India’s first non-Congress Prime Minister 1977-79 (Photo: Wikipedia)

New Delhi (UNI) – The videotaped defence bribery affair has underscored a long-recognised need over which the authorities have vacillated while scandal after scandal has rocked the nation’s political life– appointing a Lok Pal, India’s much-heralded anti-corrupt ombudsman conceived 35 years ago but still nowhere in sight.

Last heard of, the Lok Pal bill was the subject of second thoughts: whether or not Members of Parliament be placed under its purview. This, notwithstanding the fact that a broad cross-section of MPs themselves has voiced support for that and several other measures aimed at promoting accountability.

The MPs’ support is reflected in responses already in to an appeal sent out some weeks ago by Lok Sevak Sangh, a Non-Governmental Organisation, and its sister NGO, Transparency-International India. Both groups have said they will embark on a Satyagraha if the Lok Pal bill is not introduced in this session of Parliament.

”If the bill is not introduced during the session ending on March 23 or if MPs are excluded from its jurisdiction, we shall resume the postponed Satyagraha on April 16, when Parliament reassembles after recess to continue the budget session,” LSS-TII Chairman Shambu Dutta Sharma told UNI.

The groups deferred Satyagraha last November after announcement of plans to introduce the bill during the winter session.

For decades, the authorities have let the grass grow under their feet while corruption has gone on unbridled– scam after scam bursting forth on the nation’s political stage, eroding public values, chipping away at public morale and cynicising public mind.

The concept of Lok Pal– inspired by Sweden’s Ombudsman– grew out of an interim report on the Problem of Redressal of Citizens Grievances submitted in 1966 by the Administrative Reforms Commission headed by Morarji Desai. The very thought of someone to whom an Indian citizen could turn with a complaint of corruption or administrative excesses against the mighty of the land was a whiff of fresh air.

Two years later, the Lok Pal and the Lokayuktas Bill, 1968 was introduced in the 4th Lok Sabha, when late Mrs Indira Gandhi was Prime Minister. It was considered by a joint committee of the two Houses of Parliament and passed by the Lok Sabha in 1969. It was pending in the Rajya Sabha when the Lok Sabha was dissolved. The bill lapsed.

Over the years, with political and public life getting increasingly mired in scandalous goings-on and some governments at the Centre or in States even losing office over issues involving integrity– Bofors, Hawala, Fodder, Urea, Telecom, to name just a few controversies– the need for Lok Pal and other reforms has got more and more acute.

But resistance to the bill appears manifest in the fact that even after being tabled six more times– in 1971, 1977, 1985, 1989, 1996 and 1998, the last time by Prime Minister Atal Bihari Vajpayee– it has never again been put to vote.

English: People taking part in protests in sup...

Protesters demanding Lokpal (Photo: Wikipedia)

The concern was echoed by the Prime Minister while opening a conference of Lokayuktas or State Ombudsmen some weeks ago. As Mr Vajpayee put it, rampant corruption over the past few decades and the failure to catch and punish the corrupt has bred contempt for the law and led to widespread cynicism among the people, causing a decline in moral values in Indian society.

“Experience has shown that our efforts to strengthen probity in civil service and the polity cannot yield desired results without extending the norms of accountability to the judiciary. The inability of our judicial system to deliver speedy justice has itself become the source of much injustice. It has also eroded the credibility of our judiciary in the eyes of the public,” Mr Vajpayee told delegates.

Noting that corruption was detrimental to development, he announced that a Group of Ministers was putting together a new draft of the Lok pal Bill, which “will be introduced in Parliament soon.”

On his part, Mr Vajpayee volunteered to submit to its jurisdiction by vesting the Lok Pal ”with adequate powers to deal with charges of corruption against anyone, including the Prime Minister.”

Authorities acknowledge that even the implementation of Lokayuktas in states has not been satisfactory. Lokayuktas exist in barely 15 states and do not have uniform jurisdiction over Chief Ministers or Members of State Legislatures. Nor is the system entirely effective.

For instance, between 1986 and 2000, the Karnataka Lokayukta ordered investigation in 2,840 cases, of which 1,677 were charge-sheeted but only six percent cases ended in conviction. The bulk– 1,118– were pending trial.

Originally, the Lok Pal bill was to place under scrutiny the conduct of all public functionaries and political leaders, including the Prime Minister, the Members of the Cabinet, as well as all members of both Rajya Sabha and Lok Sabha. It would have MPs and members of their immediate family declare personal assets each year they remain in office.

The bill was scheduled to be introduced for the eighth time in November 2000, but the move appears to have bogged down because of demands to leave MPs out of its sway.

An argument advanced for excluding MPs from its ambit is that Lok Pal should only mind the affairs of those wielding government and ministerial office who take decisions affecting citizens and therefore have the potential to abuse it for personal gain.

But activists for MPs’ inclusion point out that legislators exercise enormous influence in shaping laws, policy and decisions which is fundamentally important and has potential for abuse.

“MPs are also empowered to take decisions such as spending constituency development funds,” the LSS-TII spokesman said. “A few MPs have been known to accept bribes and misuse government property and ever increasing facilities and perquisites for personal benefit.”

A well known example is the acquittal of four Jharkhand Mukti Morcha MPs who allegedly voted for the Narasimha Rao government in return for monetary consideration. The magic words that got them off were written into Article 105 of the Indian Constitution: “no member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof… ”

The episode has occasioned calls to change such provisions. Law Commission Chairman Justice B P Jeevan Reddy recently sought to kick off a public debate by suggesting that bribe-taking legislators should be liable for prosecution. He suggested including a new clause requiring that “nothing… should bar the prosecution of a Member of Parliament under the Prevention of Corruption Act etc, if they take money for voting in Parliament”.

Another argument advanced by those seeking to exclude MPs from Lok Pal’s purview has been that MPs are accountable to Parliamentary Ethics Committees, and do not need additional supervision.

But in its appeal to MPs, the LSS-TII pointed out that even bipartisan ethics committees in the United States “have not really been effective in controlling the wrongful conduct of the Senators and Representatives there. It is not likely to do better in India. It will be a case of you scratch my back and I will scratch yours.”

The letter pointed out that “the argument that the MPs would not like their conduct to be adjudicated by any outside agency, is untenable… Nobody should seek to be a judge in his own cause.”

It cited the Rajya Sabha Ethics committee’s quietness when the national press and the Chief Election Commissioner in the last biennial election raised grievous doubts about some Rajya Sabha candidates trying to bribe the MLAs.

“So far as Lok Sabha Ethics Committee is concerned its Chairman and (former) Prime Minister Chandra Shekhar is facing proceeding re(garding) his large Bhondsi campus in a public interest petition filed by advocate Dr (B L) Wadhera.”

“We request that the Lok Pal legislation should not be delayed further on any ground whatsoever,” the LSS-TII said, adding that “thirty-three years are enough for our political leadership to put in place an effective Lok Pal.”

Appointing Lok Pal is one of seven measures the LSS has been stressing to further the cause of probity in public life. The others include enacting laws giving citizens access to information, plugging loopholes to discourage defections, requiring declaration of political parties’ assets and accounts audit, debarring corrupt and criminal citizens from contesting elections, speedy trial of erring politicians and forfeiture of illegally acquired property, most of which have been under legislative consideration for years, even decades.

The MPs who have stepped forward cutting across the party lines to support the measures include Leader of the Opposition in Rajya Sabha, Dr Manmohan Singh, and leading attorney and Congress leader, Kapil Sibal, as well as ruling Bharatiya Janata Party veterans such as B P Singhal, Kailash Joshi and Vijay Kumar Malhotra.

They also include Debabrata Biswas of All India Forward Bloc, Nagendranath Ojha of Communist party of India, Sunil Khan and Subodh Roy of Communist party of India (Marxist), Chandra Vijay Singh of Akhil Bharatiya Lok Tantrik Congress, Tarlochan Singh Tur of Shiromani Akali Dal, Ananda Mohan Biswas of Trinamool, Prof M Sankaralingam of Dravida Munnetra Kazhgaham, Peter Alphonse of Tamil Manila Congress, Ashok Mohol of Nationalist Congress Party, Arun Kumar and Mahendra Baitha of Janata Dal United, Prabhat Kumar Samantaray of Biju Janata Dal, Prof A Lakshmisagar of Janata Dal, Dr S Venugopal of Telugu Desam Party, Ram Prasad Singh of Rashtriya Janada Dal, Ravi Prakash Verma of Samajwadi Janata Party and S D Shariq of National Conference.

Independent Member S Roy Choudhary and nominated Members writer K S Duggal, journalist Kuldip Nayar and jurist Fali S Nariman, all noted in their respective fields, have also voiced their support.

One party from which no response has been received so far is Jharkhand Mukti Morcha.

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Whither Reform ? Time To Audit Law-making ? – By Mukesh Jhangiani

                                                                                                                        February 19, 2006

Whither Reform ? Time To Audit Law-making ?

By Mukesh Jhangiani
United News of India

English: Parliament building in New Delhi (San...

Where Laws Are Made – Sansad Bhavan or Parliament Building (Photo: Wikipedia)

New Delhi (UNI) – Pendency went up 25 per cent – to 30 million cases – as authorities spent 2005 computerising courts, equipping judges with laptops, promoting arbitration and legal literacy and planning nyayalayas across rural India– all the while deferring reforms mostly to 2006. Maybe !

The year had begun with a call in the presence of a senior Supreme Court judge to curtail lawyers’ fees and sieve out those who do not conform to the expectations of a noble calling.
About same time, President A P J Abdul Kalam was questioning a bid to transfer a high court chief justice whose concern over judicious conduct had 25 brother judges attempting a ‘strike.’
And Law and Justice Minister Hans Raj Bhardwaj was announcing moves to strengthen the Judge’s Inquiry Act and a Bill to appoint a Lokpal to ensure accountability in executive, legislature and judiciary– the three key branches of governance.
Those events marked the very first week of 2005.
If such straws in the wind– and a new left-backed United Progressive Alliance at helm– produced hopes of real reforms in delivery of justice and rule of law blowing in soon– the wait did not end with the year.
The Right To Information Act, 2005 which came into force on October 12– cited by Prime Minister Manmohan Singh among key achievements– is seen by experts as a valuable tool to expose corruption.
Legal redress or remedy which include compensating victims and punishing culprits is another matter.
Media ‘stings’ which showed some Members of Parliament virtually vending the privilege of raising questions in the House or spending on development were a rude reminder that accountability was not really round the corner.
Their expulsions notwithstanding, the ‘exposed’ MPs are knocking on the doors of courts for justice.
It refreshes memories of one of the most controversial Supreme Court judgements that the Indian Constitution gives MPs taking bribes an immunity from prosecution ”if they have actually spoken or voted in the House pursuant to the bribe taken by them.”
That judgement allowed the acquittal of four Jharkhand Mukti Morcha MPs who had voted for the Narasimha Rao Government 12 years ago in return for bribes.
Then Law Commission Chairman B P Jeevan Reddy suggested making bribe-taking legislators liable for prosecution.
”Nothing… should bar the prosecution of a Member of Parliament under the Prevention of Corruption Act… if they take money for voting in Parliament.”
Asked about it eleven years later at a news conference in January 2005, the Law Minister acknowledged that steps were yet to be taken to preclude such interpretation– as, indeed, they yet are.
Lokpal to check corruption in public offices itself was conceived four decades ago but is still nowhere in sight. Tired of waiting, activists have announced a People’s Lokpal.
Efforts on Lokpal or to strengthen the law to discipline errant senior judges remain under way.
By proclaiming 2005 as the Year of Excellence in Judiciary and pronouncing the institution ‘clean’– close on the heels of allegedly scandalous behaviour involving some senior judges– then Chief Justice of India Ramesh Chandra Lahoti helped underscore accountability as well as transparency.
Bhardwaj insists that any disciplinary action against senior judges be taken only by their peers and to that end the Judges’ Inquiry Act 1968 needs strengthening.
The Act provides to impeach an errant judge– a step rendered ineffective due to partisan politics the only time it was invoked against Supreme Court Judge V Ramaswamy who had been dubbed ”guilty of wilful and gross misuses of office…”
Authorities have no other way to effectively discipline senior Judges. An in-house mechanism has been adopted in absence of any legislative provisions. But experts say such a mechanism suffers from opacity and uncertainty.
Three years ago, within hours of taking office as CJI, Justice Gopal Ballav Pattanaik stressed in a television interview more powers to tackle corruption in judiciary.
Just a week before, his predecessor, Justice Bhupinder Nath Kirpal had called for ”robust safeguards” to minimise fears of corruption and incompetence in a judiciary appointing itself.
He said, ”the members of the judiciary are also Indian citizens who come from the same aggregate as those in the legislature and the administration, and therefore, there are also instances where corruption and incompetence have also pervaded the judicial establishment that cannot be denied.”
In December 2001, then CJI, Justice Sam Piroj Bharucha told a lawyers’ group in Kerala that ”more than 80 per cent of the Judges in this country, across the board, are honest and incorruptible.
”It is that smaller percentage that brings the entire judiciary into disrepute. To make it known that the judiciary does not tolerate corruption in its ranks, it is requisite that corrupt Judges should be investigated and dismissed from service.”
In December 1989, on the eve of retiring as CJI, Justice E S Venkataramaiah told an interviewer that ”judiciary in India has deteriorated in standards because some of the judges are willing to be influenced by lavish parties and whisky bottles.”
However, concern and disquiet voiced over the years has yet to produce a remedy.
The Law Minister suggests ‘formalising’ the in-house mechanism– leaving the task of ensuring accountability still with judges but making clear provisions for punitive measures such as suspension or resignation of errant judges.
With that in mind, India’s Central and State Law Ministers met at Simla in June 2005 and decided to set up a National Judicial Council to ensure judicial accountability.
Such measures may not find favour with some judges.
On the other hand, legislators and the executive– not to mention the judiciary– owe the citizens a transparent and accountable system of justice.
In a broader context, accountability was emphasised by Justice Yogesh Kumar Sabharwal seven months before he became the 36th CJI.
Speaking at the launch of a legal literacy mission by Prime Minister Singh, Justice Sabharwal said, ”We need to set examples of accountability in our governance.”
Three months ago, the Law Commission received a reference on the Judges’ Inquiry Act. This month, the Commission submitted to the Law Minister ”a comprehensive study” on ”the procedure for removal of the judges of the Supreme Court and High Courts.”
As it is, on one hand, judges cannot be disciplined unless their peers so choose– on the other they cannot be criticised without risking six months in jail under the court’s contempt power.
A long-awaited reform has been to allow truth as a defence against the contempt power which ends up silencing, at least discouraging, even fair, healthy and well-meaning criticism.
Last February, a Bill to ”further liberalise the scope to permit a defence of justification by truth on satisfaction as to bona fides of the plea and it being in public interest” was introduced in the Lok Sabha.
Just two days before the year ended did the Manmohan Singh Cabinet approve a ”proposal to proceed further in Parliament (on) the Contempt of Courts (Amendment) Bill 2004.”
An even more basic issue is judges’ strength. Not only it is known to be lower in India than elsewhere, it is further undermined by many vacancies and possible quality issues. Delayed judicial appointments contribute to delayed justice, even though authorities know years before vacancies arise and can set up a pool from which judges are assigned without delay.
So far as making lawyers accountable to litigants is concerned, the Advocate’s Act remains where it was.
Apart from complaints of incompetence, inefficiency and indifference, ethical issues are a major concern in the legal profession.
Lawyers who should look out for clients’ interests, are at times known to mislead them– treating cases as milch cows prolonged through adjournments for years– or even colluding with clients’ opponents.
Victims can complain to statutory Bar Councils. But the Councils are not always prompt in responding, nor can they help litigants recover any losses caused due to members’ misconduct.
One practical remedy might be for courts to keep for litigants’ reference a lawyers’ roster along with any record of complaints of misconduct against each– whether resolved or pending.
As it is, the authorities have not even dusted Law Commission findings since protesting lawyers clashed with police on Parliament Street a few years ago.
Here is an undergraduate textbook extract on the reality of Equality Before Law in actual practice during the erstwhile British rule:
”The principle of equality before law was violated when laws became complicated and beyond the grasp of uneducated poor masses.
They had to engage lawyers who charged excessive fees and preferred to work for the rich. In addition, the prevalence of corruption in the administrative machinery and the police worked against the rights of the masses.”
More than 57 years after the British quit India, the call to simplify the language of laws of the land was given by Prime Minister Singh at the launch of the country’s first nationwide legal literacy mission in March 2005.
”The complex legal language of our statutes acts as a hurdle to legal literacy… compounded by the intricacies of legal language in judicial pronouncements,” Dr Singh told law professionals.
”An attempt should be made to simplify the language of the law so that any one who reads judgements and laws can easily understand their true meaning.”
In November, the cold-blooded killing of Indian Oil Corporation officer Manjunath Shanmugam, who blew the whistle on corrupt petrol outlets, underscored once again the crying need in India for law to protect whistleblowers– insiders who expose corrupt or abusive organisations or employers.
Such laws have existed in and served other advanced societies for decades.
In India, a study was made by the Law Commission and a Draft Bill put together and placed in Parliament more than three years ago.
It was before the MPs when National Highway Authority officer Satyendra Dubey lost his life in November 2003, not to mention when Shanmugam lost his– two years later.
As it is, critics say, officials who appear to find protection in Indian jurisprudence are the sort who acquiesce in or connive at violations.
In case after case– whether petrol pump distribution scam, St Kitts affair, Hawala scam, Bofors scandal or many more– bureaucrat after bureaucrat and politician after politician has found acquittal or escape.
It is dramatically exemplified in manifestations of justice that hit consumers of New Delhi’s municipal and housing services this winter.
Law abiding citizens hailed the drive ordered by the Delhi High Court, urging impartiality and wondering whether– and why– law spared pre-2000 violations or officials on whose watch violations took shape.
Published accounts say three-fourths– perhaps more– of the Capital’s 36,00,000 buildings are illegal. Yet municipal authorities have taken note of only 200,000 of them and acted against barely a thousand.
The ongoing drive targets a mere 18,299 cases detected since 2000.
The court also has ordered the city to ”fix responsibility” and initiate major penalty against engineers and officials ”who allowed or took no notice” of such constructions.
If punitive action has been taken, it has not been made public.
Critics say city bulldozers have been ‘discrete,’ steering wide clear of homes of India’s bigwigs or affluent– entire unauthorised neighbourhoods or localities !
Critics advocate punishing officials who let violations occur and such agencies as the Delhi Development Authority whose policies or actions– why lottery ? for instance– have encouraged and stoked speculation in housing.
They say it all reflects the state of rule of law in India.
Here are some more reflections of it:
— Hundreds of thousands of undertrials have been in custody– many for years, even longer than their convictions might have required them to spend in jail. Why legal attention remains denied is not clear given huge sums spent year after year on legal aid for needy. Former Law Minister Jana Krishnamurthi saw it as a serious flaw that must not be allowed.
— An Indian Society of International Law inaugurated in August 1959 by India’s first Prime Minister Jawaharlal Nehru might have been a guiding force, helping inform and shape public opinion on global law. In 2005, it was sued by its Treasurer over violations of domestic norms.
— The Bar Council of India disclosed two years ago that 131 high court judges– one in four– across India have kin practising in the same court– an arrangement or coincidence forbidden under the law for fear of promoting unfairness in justice. The Council campaigned for transfer of 131 HC judges– in vain.
— But 2005 saw a High Court Chief Justice transferred twice in seven months, each time reportedly on brother judges’ complaints. In February, Justice B K Roy was transferred to Gauhati HC after he had asked some Punjab and Haryana HC judges why they took complimentary membership of an exclusive club, and in September, to the Sikkim HC, after he tried to improve access to justice in the Northeast by assigning Judges to benches in states neighbouring Assam.
— Despite scam after sordid scam sapping public interest, legislators have neither enacted Lokpal nor discarded it as a bad idea unfit for Indian society in the 40 years since it was recommended by the Administrative Reforms Commission set up under Morarji Desai in 1966.
— In November 1996, the Supreme Court found that former Petroleum Minister Satish Sharma favoured 15 petrol pump allottees and fined him Rs 50,00,000. Another Bench overruled this in August 1999. Two years later, an expert group led by Justice Reddy reviewed both orders and said it was ”absolutely essential” and ”urgent” to enact a law making public servants liable– with exemplary damages– for loss caused to the State by their mala fide actions. Last April, the Central Bureau of Investigation explained its failure to file chargesheet in the 15 cases citing a government decision ”not to grant sanction” to prosecute Sharma.
— In 30 years, the Lalit Narain Mishra murder case has been transferred to nine judges, and of seven accused, the statement of only two recorded. A Parliamentary report dubs it ”a classic case” which ”epitomises the lethargic pace at which the Indian legal system operates.”
”We must realise,” Justice Sabharwal said in his Law Day speech in November ”that the end of law must be justice. Law and justice cannot afford to remain distant neighbours. There must be harmony between law and justice.
”We must, in all seriousness, ask ourselves… how far we have been able to fulfil the mission of law to deliver justice and to what extent we have succeeded in using law as a vehicle for ensuring social justice to the large masses of people in the country.”
Experts concede that not just justice, legislation– the process of enacting laws of the land– also suffers from delays.
They say the terribly slow pace of legislating reforms is as constricting and agonising to the society as delay in adjudication is to an individual victim.
In India, the process also suffers from near absence of public participation in so-called public debate– often confined to hearing select speakers in one forum or another with hardly any audience input.
Those are just some of the serious questions that need to be faced. ”It is also perhaps a most ignored aspect of public interest issues by Indian research and scholarship,” a Delhi University Law teacher acknowledges.
Experts concede what is needed is a thorough but quick audit or study of legislative function– to see how it can be made effective in dealing with the needs of transparency, accountability and law in the society.
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