Friday, July 1, 2011

THE HINDU: Lokpal Bill and the PM

Lokpal Bill and the Prime Minister

ANIL DIVAN

June 30, 2011

When the basic structure of the Constitution denies the Prime Minister immunity from prosecution, how could it be argued that the office should not be brought under the scrutiny of the Lokpal?

When the basic structure of the Constitution denies the Prime Minister immunity from prosecution, how could it be argued that the office should not be brought under the scrutiny of the Lokpal?

The Indian citizenry is up in arms against corruption at the highest levels of government. Anna Hazare's movement has caught the people's imagination. The former President, A.P.J. Abdul Kalam, has pitched in and called upon the youth to start a mass movement against corruption under the banner "What can I give?" (The Hindu, June 27, 2011).

According to a CRISIL report (The Hindu, June 29, 2011), inflation has caused the Indian public to be squeezed to the extent of Rs. 2.3 lakh crores. According to the Comptroller and Auditor General of India (CAG), the estimate of loss to the exchequer owing to the 2G spectrum scam is Rs. 1.22 lakh crores.

That corruption is a disease consuming the body politic is a fear expressed by dignitaries in India over many years. As far back as 1979, Justice V.R. Krishna Iyer observed in a judgment in his inimitable style: "Fearless investigation is a 'sine qua non' of exposure of delinquent 'greats' and if the investigative agencies tremble to probe or make public the felonies of high office, white-collar offenders in the peaks may be unruffled by the law. An independent investigative agency to be set in motion by any responsible citizen is a desideratum."

Mark the words: fearless investigation by an independent investigative agency against delinquent 'greats'. A good Lokpal bill has to be nothing less.

It is in this context that this article addresses the issue of whether the Prime Minister should be brought under the ambit of an Ombudsman (Lokpal) and be subject to its scrutiny. It is important to observe that in most of the Lokpal bills, including the 2010 government draft (except the 1985 version), the Prime Minister is within the ambit of the Lokpal.

The Constitution

Under the Indian Constitution there is no provision to give immunity to the Prime Minister, Chief Ministers or Ministers. Under Article 361, immunity from criminal proceedings is conferred on the President and the Governor (formerly the Rajpramukh) only "during his term of office."

So what is the principle behind such immunity being given? The line is clearly drawn. Constitutional heads who do not directly exercise executive powers are given immunity as heads of state. Active politicians such as Ministers, who cannot remain aloof from the hurly-burly of electoral and party politics, ethical or unethical, honest or corrupt, are not given any immunity. They are subject to penal laws and criminal liability.

The basic structure of the Constitution clearly denies immunity to the Prime Minister.

Internal Emergency

During the period of the Internal Emergency (1975-77), Indira Gandhi enjoyed dictatorial powers. She detained without trial prominent Opposition leaders and was supported by a captive and rump Parliament.

The Constitution (Fortieth Amendment) Bill was moved in, and passed by, the Rajya Sabha in August 1975 and later it was to go before the Lok Sabha. The Bill was blacked out from the media and hence very few people knew about it. It never became law because it was not moved in the Lok Sabha.

The Bill sought to amend Article 361 by substituting sub-clause (2) thus: "(2) No criminal proceedings whatsoever, against or concerning a person who is or has been the President or the Prime Minister or the Governor of a State, shall lie in any court, or shall be instituted or continued in any court in respect of any act done by him, whether before he entered upon his office or during his term of office as President or Prime Minister or Governor of a State, as the case may be, and no process whatsoever including process for arrest or imprisonment shall issue from any court against such person in respect of any such act."

The attempt to give life-time immunity from criminal proceedings for acts done during and even prior to assuming office, of the President, the Governor and additionally the Prime Minister, did not materialise.

Foreign jurisdictions

In Japan, Prime Minister Kakuei Tanaka (July 1972 to December 1974) was found guilty of bribery and sentenced. In Israel, Prime Minister Ehud Olmert was indicted in corruption scandals in August 2009. In Italy, Prime Minister Silvio Berlusconi enacted, through a pliant legislature, a law by which he shielded himself from prosecution. The Italian Constitutional Court recently invalidated crucial parts of that law, which may result in his trial being revived.

The following are some of the main arguments against bringing the Prime Minister under the Lokpal's scrutiny. The first one runs thus: "The simple answer is, if the Prime Minister is covered under ordinary law (the Prevention of Corruption Act), you don't need him covered under Lokpal." This is a view that has been attributed to the former Chief Justice of India, J.S. Verma (Hindustan Times, June 27, 2011). Any misconduct by a Prime Minister can be investigated by the Central Bureau of Investigation: this view is that of Chief Minister Jayalalithaa (The Hindu, June 28, 2011). This objection concedes the principle that the Prime Minister is not immune from criminal liability and can be investigated, but argues and assumes that the Prevention of Corruption Act and the CBI present effective existing alternative procedures. Nothing could be farther from the truth and the ground realities.

What is the ground reality? First, the CBI, the premier anti-corruption investigative agency, is under the Department of Personnel and Training, which is controlled by the Prime Minister's Office (PMO). Secondly, the career prospects of CBI officers and other personnel are dependent on the political executive, and all officers are subject to transfer except the Director. Thus, the investigative arm is controlled by the 'political suspects' themselves. Thirdly, the Single Directive, a secret administrative directive that was invalidated by the Supreme Court in the Jain hawala case in 1997 (Vineet Narain v. Union of India) has been legislatively revived. Consequently, under Section 6A of the Delhi Special Police Establishment Act, the CBI is disabled from starting an inquiry or investigation against Joint Secretary or higher level bureaucrats without the Central government's prior approval. Therefore, the Prevention of Corruption Act is a non-starter against Ministers and high-level bureaucrats who may act in concert. It is imperative that the CBI's anti-corruption wing be brought under the Lokpal and not under the PMO. This alone would meet the test of an independent and fearless investigative agency as enunciated by Justice Krishna Iyer.

Secondly, it is argued that if the Prime Minister is within its ambit, the Lokpal could be used by foreign powers to destabilise the government. Today, the checks on the executive government are the higher judiciary, which has actively intervened in the 2G spectrum scam and other scams; the CAG, whose reports against the functioning of the telecommunications sector triggered investigations into scams; the Election Commission headed by the Chief Election Commissioner, which conducted elections in West Bengal in the most efficient and orderly fashion. All these authorities could be undermined by a foreign power. Why should the Lokpal alone be the target of a foreign power? Why not the intelligence and defence services? Why not leaks from Cabinet Ministers and their offices — bugged or not?

Thirdly, it is argued that bringing the Prime Minister under the Lokpal's scrutiny would mean a parallel government being put in place. This objection is disingenuous. Do the Supreme Court and the higher judiciary constitute a parallel government? Is the CAG a parallel government? Is the CEC a parallel government? Is the CBI a parallel government? The answer is clear. These constitute checks and restraints on the political executive and the administration so that public funds are not misappropriated and constitutional democracy and citizen rights are not subverted. The Lokpal will be under the Constitution and subject to judicial review, and it is imperative that the anti-corruption wing of the CBI be brought under the Lokpal. There is no question of any parallel government. The Lokpal will be only a check on the corrupt activities of the Executive. If all checks and balances are to be regarded as the marks of a parallel government and therefore abolished, it will be a recipe for dictatorship.

William Shakespeare wrote: "There is a tide in the affairs of men, which, taken at the flood, leads on to fortune; Omitted, all the voyage of their life is bound in shallows and in miseries." There is a tide in the affairs of this country and there is a great opportunity to promote good governance through a powerful and independent Ombudsman. India's economic reforms, for which the Prime Minister deserves approbation, should not be derailed at the altar of scams and corruption. Will his leadership ride on the tide of fortune and take the country forward to greater heights?

(Anil Divan is a Senior Advocate, and president of the Bar Association of India. E-mail: abdsad@airtelmail.in)

Courtesy_

Also read the related stories

DMK wants Prime Minister under Lokpal Bill

SMITA GUPTA

NEW DELHI, June 22, 2011

Manmohan holds meeting of UPA partners on the issue

On a day when discussions between the government and civil society groups on the Lokpal Bill concluded in a stalemate, Prime Minister Manmohan Singh called a meeting of his United Progressive Alliance (UPA) partners in a bid to forge unity and bolster support for the sagging image of the ruling coalition.

But the Dravida Munnetra Kazhagam (DMK), upset with the incarceration of party supremo M. Karunanidhi's daughter Kanimozhi in the 2G spectrum allocation case, backed the civil society groups, saying it was in favour of including Prime Minister in the Lokpal Bill.

Mr. Karunanidhi, who had come to see his daughter, did not attend the UPA meeting. The DMK was represented at the meeting by its Parliamentary Party leader T.R. Baalu.

However, Trinamool Congress leader and West Bengal Chief Minister Mamata Banerjee backed the Congress: indeed, at a press conference earlier in the day, she made her position clear on the Lokpal Bill. She said including Prime Minister in the Bill would not end corruption and slammed the civil society groups.

The Nationalist Congress Party (NCP), represented by Union Minister Praful Patel — as Union Agriculture Minister Sharad Pawar was not in the capital — is also backing the Congress' line on the Lokpal Bill.

Earlier in the day, anticipating trouble in Parliament, the government decided to postpone the opening of the monsoon session by a fortnight to August 1, hoping to gain some more time to sort out the problems related to the Lokpal Bill.

The government also decided to call an all-party meeting to see whether the political class could make common ground. It needs some ammunition to take on social activist Anna Hazare, who has threatened to go on hunger strike from August 16 to push for his version of Lokpal Bill.

At Tuesday's meeting, Union Finance Minister Pranab Mukherjee, who headed the joint Lokpal Bill drafting committee, briefed the UPA leaders on the discussions with the civil society team.National Conference leader and Union Minister Farooq Abdullah, emerging from the meeting held at the Prime Minister's residence on 7, Race Course Road, told journalists that Mr. Mukherjee briefed them on the two drafts of the Lokpal Bill and that they would all be given copies of the two drafts.

Asked about his party's line on the Bill, he said it would be known when Parliament opened.

Apart from the Prime Minister, those who attended the meeting included Congress president Sonia Gandhi (who is also the UPA Chairperson), Mr. Mukherjee, Defence Minister A.K. Antony, Ms. Banerjee, Mr. Patel, Dr. Abdullah, Union Minister E. Ahamed of the IUML and Ms. Gandhi's Political Secretary Ahmed Patel.

Courtesy_

Also read the related stories

Jayalalithaa against bringing Prime Minister under Lokpal

PTI

CHENNAI, June 27, 2011

Tamil Nadu Chief Minister Jayalalithaa has said she was against bringing the Prime Minister under the Lokpal's ambit as it would undermine his authority and pave way for a "parallel government." "The Prime Minister should be excluded from the purview of the bill as he is already covered under the Prevention of Corruption Act and the CBI can investigate," she said on Times Now today.

Expressing fears that the bill could be used by foreign powers to "destabilise" the nation, she said if the Prime Minister was included under the Bill, he cannot function as he would have to focus more on defending himself against the accusations.

"It would seriously dent the Prime Minister's authority even if charges were proved wrong. The Prime Minister will be put on the defensive and he has to constantly defend himself," she said but added that the state government will give its opinion on this issue only after getting the final draft which would be tabled in Parliament.

Ms. Jayalalithaa, who had made a sensational offer of support of her party - AIADMK - to the Congress last November in case of DMK pulling out in connection with the 2G spectrum scam, however, said she was not supporting any individual.

"I am not supporting any individual but the institution. Unless he is wrested with full powers, he cannot function. Nothing should erode or undermine the Prime Minister's authority," she said.

Courtesy_

Also read the related stories

Govt. version on Draft Lokpal Bill: http://enactments.blogspot.com

Government of India proposed version also available at: http://www.thehindu.com 

Draft Lokpal Bill - Civil society version: http://enactments.blogspot.com

Jan Lokpal Bill - Activists proposed version also available at: http://www.thehindu.com

Jan Lokpal Bill - Wikipedia, the free encyclopedia at: http://en.wikipedia.org

Official consultation website: http://www.lokpalbillconsultation.org


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