AnnaPal vs ArvindPal By Pavithran
AnnaPal is Lokpal and Lokayuktas
Bill, 2011. ArvindPal is JanLokpal as drafted by civil societies.
AnnaPal i.e. Lokpal and
Lokayuktas Bill, 2011 was finally passed on
17th December 2013 in the Rajya Sabha and in the Lok Sabha on 18th December
2013. It is going to become an Act. It is a real positive step to put an end to
the corruption prevalent in our government systems.
The pressure built up by Anna’s indefinite fast at his native village had
yielded results apart from the shock created by the debut of Aam Aadmi Party’s
spectacular victory in the recently held Delhi Election. This bill was
supported by all political parties excluding Samajvadi Party and Shiv Sena and
also by by Aam Aadmi Party though having no representation in these houses
whose main agenda is Jan Lokpal. This one year old party was selective in
criticizing Anna, Congress and BJP - leaving other parties and even ignoring
the two parties who had opposed the bill for their own specific reasons which
to my knowledge would not get nods from Aam Aadmi Party.
As far as AAP is concerned, this passed Annabill is a Jokepal or Sarkari
bill or Toothless Bill and it does not reflect and contain major safeguards
envisaged in the Jan Lokpal Bill,
also referred to as the Citizen's Ombudsman Bill, drafted and drawn
up by civil society activists.
This article is to know what
AAP says is correct.
To know the background of this
bill, let us look back and know a little about its past history.
Jan Lokpal bill was
drafted by Justice Santosh Hegde (former Supreme Court Judge and former
Lokayukta of Karnataka), Prashant Bhushan (Supreme Court Lawyer) and Arvind
Kejriwal (RTI activist) and the draft amongst other provisions envisages a
system where a corrupt person found guilty would go to jail within two years of
the complaint being made and his ill-gotten wealth being confiscated. It also
seeks power to the Jan Lokpal to prosecute politicians and bureaucrats without
government permission.
It is pertinent to state here
that this Jan Lokpal Bill was born and submitted to the Government to be passed
by them to make it an act under the leadership of Anna headed by erstwhile
India Against Corruption wherein Arvind and all leading lights of the present
AAP were involved.
The word ‘Jokepal’ itself was
used first by Anna, when the Government, by its unilateral action and ignoring
the provisions of Jan Lokpal, had passed LokPal Bill in Lok Sabha in December
2011. The same was opposed in the Rajya Sabha, when placed on its table and due
to stiff opposition, the Lokpal passed in Lok Sabha was referred to a Select
Committee by the members of Rajya Sabha and this committee was headed by Shri Satyavrat Chaturvedi, as its Chairman.
Before
comparing the Lokpal Bill which can be called AnnaPal due to his stamp of
approval as against JanLokpal which can be called ArvindPal due to his vehement
opposition to the recently passed LokPal Bill to the extent of accusing Anna as
being ‘purchased and brainwashed’ by Congress and BJP - really strong
insinuations, let us hear what Shri Satyavrat Chaturvedi had said about the
bill being modified with more than 14 amendments out of 16 duly agreed to by
the Government.
Shri
Satyavrat Chaturvedi’s comments about the report with suggested amendments most
of which being accepted by the Government are:
- Prime Minister: The prime minister should be brought under the Lokpal’s purview, except for matters related to external affairs, internal security, atomic energy, and international relations.
- CBI’s independence: It will have a separate director of prosecution appointed by the central vigilance commission (CVC). Both, the CBI director and director of prosecution will have a fixed two-year term.
- The Lokpal will have superintendence over and direction to Central Bureau of Investigations (CBI) in Lokpal referred cases. CBI officers investigating cases referred by Lokpal will not be transferred without Lokpal’s consent. The CBI will have a panel of non-government advocates.
- A time frame for probe by Lokpal is fixed - as three months for preliminary enquiry, six months for investigation, which can be extended by six months at a time, and one-year for trial, which can also be extended by one-year.
- Lokayuktas states will be free to decide the nature of Lokayuktas they create, but it will be mandatory to create a state anti-graft body within a year.
Incidentally, it
should be noted that before suggesting amendments to the Lokpal bill, wide
consultations were made with the public and experts and the committee with 15
members representing various political parties had sat many sittings which were
duly documented and made available in the public domain.
AAP alleges that major
3 point conditions indicated by AAP in its website prompting Anna to end his
fast as accepted by the Government on his earlier fasts had not been met, but,
Anna had ended his fast to pave the way for this JokePal to become an Act. This, Arvind, feels that it is a betrayal of
the Government and Anna.
Hence, if we
carefully analyse these 3 points/areas - then, we can reasonably know the
actual position. 3 points as pointed out by AAP are as under:
1. That
all public servants, high or low would be included in the investigative ambit
of the Lokpal;
2. That
the Lokpal would also monitor the Citizen’s charters and have the power to
penalize public authorities and servants who violate it;
3. That the Lokpal bill would contain provisions for Lokayuktas on the same lines
as the Lokpal for the States, which would take of corruption among State Public
servants.
Bill lays down clear timelines for preliminary enquiry and investigation and trial. Provides for special courts Public servants will not present their view before preliminary enquiry if the case requires 'element of surprise' like raids and searches.
Bill grants powers to Lokpal to sanction prosecution against public servants.
Further Comments for item 3:
Most members, experts and political parties had opined that to bring Lokayukta under
the ambit of Central Government are the clear case of infringements and
encroachment of States’ autonomy. Then best course in these circumstances are
to advise by this Lokpal bill each state to
set up Lokayuktas by law within 365 days and leaving the states the
freedom to determine the nature and type of Lokayukta. (Earlier
draft said that it will only be applicable to states that give consent. It
might have been an herculean tasks for the select committee to come to this
consensus. Let us not forget the voices to protect federal structure of states
administrations.)
Hence AAP’s continued stand of stating that the present bill passed - Lokpal 2011 - is Jokepal, is not correct and if it persists to claim so, then it is pure politics, as its one main item in its manifesto had got enacted much to their surprise. Here their honesty is clouded and gathered dust and dirt for cleaning of which its own symbol needs to be used.
Many
famous social activists like Aruna Roy,
NCPRI and Arundhati Roy - are all against JanLokpal Chief being vested with
unquestionable powers stating that ‘contrary to Gandhi’s ideas about the
decentralisation of power, the Jan Lokpal Bill is a draconian,
anti-corruption law, in which a panel of carefully chosen people will
administer a giant bureaucracy.’
Now, a comparative chart as
indicated by AAP website is being probed and commented here below to prove that
the present LokPal Bill is not weak to curb corruption and that the points of
objections raised by AAP are not that strong enough to give much ‘Teeth’ to it.
‘I say, you please accept. No amendments - complete acceptance and
implementation’ attitudes of AAP seem to be non-healthy for democratic set up.
Let the readers judge
themselves.
IMPORTANT
DIFFERENCES BETWEEN THE LOKPAL BILL AND JANLOKPAL BILL
As per Govt’s Lokpal Bill
|
As per Jan Lokpal Bill
|
| Appointment: Lokpal will be selected 5 members: by
PM, Leader of Opposition, Speaker, CJI, and one jurist nominated by these 4. Lokpal: Judiciary - 1, political - 2, speaker non-political, jurist - non political. Janlokpal: Judiciary 4 - investigating agency 1 - political parties - 2 Objection by Arvind: Thus majority of those who will select Lokpal will be from the political class, who themselves will need to be investigated by the Lokpal, Explanation: Even in Lokpal, non-political treating speaker as non-political is on the majority. Further 50 per cent of members of Lokpal shall be from SC/ST/OBCs, minorities and women. Merely increasing number from 5 to 7 cannot anyway dilute the selection. |
Lokpal will be appointed by a
7 member committee, consisting of 2 SC judges, 2 HC judges, 1 nominee of
CAG+CVC+CEC, PM and Leader of Opposition |
| Removal: For removal, only the Govt, or 100 MPs
can make a complaint to the SC. Complaint: This will render the removal largely under control of the government and the political class, and compromising its independence. Explanation: It will avoid unavoidable and motivated and frivolous complaints against such high powered person. Please see our explanation on the next column. |
Any citizen can complain to
the SC seeking removal of any member of Lokpal. Explanation: Such a course will lead to unnecessary litigations and wastage of energy and time. When AAP is bent upon involving more public even in taking decision, what is harm in making Lokpal chief unassailable? That will make his role effective. When selection of Lokpal chief itself is somewhat fool proof, this liberty to public will put spokes in the effective functioning and the very purpose, for which the bill is mooted, will get diluted. It is the doubting Thomas mentality - Janlokpal wants appointment to be made cumbersome and the complaint for removal made easy and wide. Worst, jan lokpal insists on wrong complaints to be given leniency - it will be prudent to give lokpal chief safeguards so that he can function effectively. Fear of frivolous complaints will jeopardise his function. |
| Investigating machinery: The Lokpal would have to get the
complaints investigated by any investigating agency, including the CBI, all
of which would continue to remain under the administrative control of the
government. The transfer, postings and post-retirement jobs of CBI officers
would be under the control of the govt, thus compromising the independence of
the investigative machinery. Explanation: Not correctly worded. Lokpal job should be only to investigate and punish the guilty through investigating agency - here CBI or even utilising any other independent legal aides. Once officials drafted by Lokpal, they are made answerable only to Lokpal. It is wrong to presume that such drafted CBI personnel will continue to get orders from government, etc. and will be biased towards their political chiefs. Lokpal will have power of superintendence and direction over any investigating agencies including CBI for cases referred to them by Lokpal. |
The CBI will be brought under
the administrative control of the Lokpal, so that the investigating machinery
can be made independent of the government. Explanation: Merely stating the aim and goal will not prove where the government lokpal is went wrong. The apex agency will come under the purview of Lokpal body only for Lokpal referred cases. The new draft states that the CBI officers won't be transferred during the pendency of the cases unilaterally unless approved by Lokpal. If full administrative control is brought under Lokpal as wished by Arvind and Co., then the focus and main purpose of Lokpal to probe will be lost with unnecessary administrative work relating to personnel, their grievances etc. One should not forget that present CBI has other jobs to do. |
| Whistleblower protection: Not mentioned in the government’s
bill. Explanations: Even in advanced countries, there are no such protections given. But, this cannot be a major issue to pursue and prosecute corrupt persons. |
The Jan Lokpal Bill includes
provisions for protection of whistleblowers. |
| Citizens Charter: Not mentioned in the government bill. (this was one of the unanimous assurances made by parliament to Anna Hazare when he broke his fast in August 2011) Explanation: It is said that it will be dealt with separately. Separate Bill is already prepared and will be put to test in the floor of the houses. |
The Jan Lokpal instituted a
mechanism for prosecution of government officials if they failed to fulfill
their duties under the citizens charter, which was to be created in this
Bill. Explanation: This will be dealt with in a separate Bill/Act. As of now, the present bill itself has provisions for attachment and confiscation of property acquired by corrupt means, even while prosecution is pending. Provides adequate protection for honest and upright public servants. These cannot be brushed aside as not adequate and the confiscation itself is major steps to crush corruption. |
| Lokayuktas in the State: Have been left to the discretion of
the state governments. (this was one of the unanimous assurances made by
parliament to Anna Hazare when he broke his fast in August 2011) Explanation: This is a constitutional area and no state wants this. But it has been made compulsory to constitute Lokayuktas in all States within one year from now on. |
The Jan Lokpal bill sought to
create a Lokayukta along the same lines as the one at the center. Explanation: No valid argument. Because: Every state will now have to set up Lokayuktas within 365 days from the date of the Act |
| Frivolous Complaints: Any person making a false or frivolous
complaint could be jailed for up to 1 year, which will deter even honest
complainants from going to the Lokpal. |
There was a penalty up to Rs.
1 lakh, but no provision for imprisonment. Explanation: As to avoid unnecessary complaints, jail term is instituted. Honesty in complaining alone is not suffice - one should be genuine. There are many public bent upon creating confusions in making frivolous complaints. |
| Ambit of the Lokpal: Judiciary excluded completely and MPs
excluded in respect of their votes and speeches in Parliament. |
Included all public servants,
including judges and MPs, with regard to all their public duties. Explanation: It is doubting Thomas mentality. Judiciary should be excluded. Prime Minister has been brought under the purview of the Lokpal. Lokpal's jurisdiction will cover all categories of public servants. |
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