Comments by Sanjay Bhargava sanjaybhargava@yahoo.com Mr.

Sibal is to be commended for taking the time to put this in the public domain. Atleast now people who disagree can give opposing views which is the essence of democracy. I have tried to give my point of view on his comments. If this reaches him he may care to respond or even agree to a moderated public debate on this note with a person like Mr. Arvind Kejriwal or Ms. Kiran Bedi (not a BIG FIGHT but a moderated public debate). The media editors can then cast anonymous votes on who won the debate. Who wins does not mean anything except that it is one more input of what media editors feel when they are voting off the record. The provisions of the Jan Lokpal Bill, proposed by Shri Anna Hazare and his nominees must be analyzed, keeping in mind the broad features of our constitutional structure. Under our Constitution, the Executive is answerable to Parliament as well as to the Judiciary. To Parliament: when Members from the Opposition seek explanations from Government for policy decisions, comment and analyze proposed Government legislation and seek information from Government. Through robust Parliamentary procedures including debates, the people of India are informed of the manner in which the Executive functions. Is this a theoretical note or a practical one? Most times parliament is disrupted and quite a few people have doubts that the parliament is functioning effectively? Does Mr. Sibal think parliament has worked well? If it worked really well the need for Lokpal would lessen but most countries around the world do have Lokpal like bodies. I wonder whether the other govt members of JDC, Congress, cabinet, PM other UPA partners endorse Mr. Sibals views or are these his own personal views. Who is Mr. Sibal speaking for? The Legislature, namely the two Houses of Parliament, is answerable to the Court which has the power, through judicial review, to strike down legislation on the touchstone of our Constitution. Our Legislators are also responsible and accountable to their constituents when they seek re-election after the dissolution of the House. The Judiciary, independent of both the Executive and the Legislature is accountable through an open and public judicial process. The hierarchy of courts helps correct judicial errors. Individual judges are also accountable through the process of impeachment by the Legislature. That has thus far not worked very well. We need to ensure greater accountability of the judiciary by framing a law which on the one hand protects judicial autonomy and independence, and at the same time ensures strict accountability. In other words, each limb of the State, the pillars of our constitutional system, is accountable, one way or the other. That is the essence of our Parliamentary Democracy. While people may have questions on how well the judiciary works we have often heard the comment If it were not for the judiciary . This seems to suggest that the biggest problem that we have is that our executive does not work well. Does Mr. Sibal think the executive has worked well ? It is this essence which is in danger and is sought to be breached by the Jan Lokpal Bill proposed by Shri Anna Hazare and his nominees. The Lokpal, according to the proposed Bill is an unelected executive body with independent investigation and prosecution agencies, answerable to none. It is not answerable to the Government, being outside it, since it will have the sole power to investigate all public servants. It is not answerable to the Legislature. Outside Government, we will have no access to its functioning, a prerequisite in informing Parliament. Besides, it will have the power to investigate all Members of Parliament. It is not answerable to the Judiciary except when it initiates the judicial process by taking recourse to the provisions of the Code of Criminal Procedure. Besides, it will have the unique power to investigate members of the Judiciary. Such an entity not accountable to any constitutional authority cannot be constitutionally justified.

The Lokpal is not an executive body it is an independent anti corruption body. It strengthens both the executive and the judiciary by reducing corruption in the ranks and both the PM and CJI should welcome the assistance that the Lokpal provides. Lot of institutions around the word such as banks have bodies like the RBI audit them. They also have internal audit teams and CEOs welcome the oversight the regulator and internal audit provide. It would be interesting to see whether the current CJI and PM see Lokpal as an ally or as a foe. One argument opposing the above proposition is that the same logic applies to the Judiciary because it too is not answerable to either the Executive or the Legislature. This logic is erroneous for two reasons: (1) All judicial proceedings are open to the public and judicial decisions are subject to revision, appeal and review. Judicial errors are liable to be corrected by superior courts. The Lokpal on the other hand is essentially an investigating agency. (2) The independence of the Judiciary cannot be equated to the independence of an executive authority being the Lokpal, the prime function of which is to investigate and prosecute. The Judiciary seeks to protect citizens. The Lokpal seeks to prosecute them. Autonomy of the Judiciary must be protected since the Judiciary resolves disputes. It is not mandated to prosecute people. The second argument is that the Lokpal is just like the Election Commission and the Comptroller and Auditor General of India (CAG), also independent constitutional authorities. Again the comparison is odious. The Election Commissions functions are regulatory and periodic and the CAGs function is to analyze expenditure of Government Departments and agencies funded by the Government to ensure that moneys allocated are not wastefully employed. I am a bit lost here. The Lokpal does an independent investigation. How does that cause problems? Should the investigation not be independent? They then do an independent prosecution in a special court. Why should the prosecution not be independent? The suspect has right to counsel and will be heard by the judiciary? It is, therefore, clear that in the scheme of things, an unelected Lokpal who is not accountable, is anathema to our concept of Parliamentary Democracy. Why then did India ratify UN treaty on Corruption? If the Lokpal was elected would it be better? What is so sacrosanct about being elected? Another broad feature which is worrisome is the general premise underlying the Jan Lokpal Bill. It proceeds on the assumption that corruption has been institutionalized and is all pervasive; that there is confluence of interests in Government Departments when a subordinate public servant charged with corruption is protected by his superior since the fruits of corruption are shared by all. Consequently, corrupt acts are not dealt with and if dealt with, are delayed. The same applies to the political process since the political class is corrupt and seeks to protect itself by not enacting laws which make them accountable. These assumptions are not entirely accurate. The premise is that if a Lokpal is set up outside the Government, there would be no confluence of interests and the Lokpal will be able to cleanse the system. I find this premise inherently faulty. I think the world, the people of India and the PM feel that corruption is rampant in India and one only has to see the poor outcomes and ones own experiences to see that the nexus Mr. Sibal talks about has reached menacing proportions. Even he concedes that the assumptions maybe somewhat accurate. Finally if public servants are pure as driven snow what have they to be afraid of ? Let us assume for a moment that we have put in place a Lokpal which has within its ambit, all Central Government employees (about 4 million) and a Lokayukta in every State which has in its ambit all State Government employees (about 7-8 million). If the Lokpal or Lokayuktas are to deal with corrupt acts of about 10-12 million people, what is required is a mammoth machinery both in

terms of manpower and otherwise to deal with individual acts of corruption by Government employees. Where would that machinery come from? Part of the human resource that is required will have to be transferred to the Lokpal from existing investigating agencies. The human resource in the CBI that deals with corruption under the Prevention of Corruption Act, 1988 will have to be, to some extent, transferred along with personnel from other investigating agencies of Government. Besides, over the years, the Lokpal will have to separately recruit investigating and prosecuting officers for disparate needs. It is not understood as to how the existing officers transferred to the Lokpal and the new recruits of the Lokpal will suddenly become chaste and incorruptible merely because they happen to function under the Lokpal. The danger of setting up such a structure is that it may end up as a Frankenstein Monster without accountability and act as an oppressive institution outside the State. This consequence is far more dangerous. The cure, in that case, would be worse than the disease. You cannot have an Executive outside the constitutional framework, answerable to nobody, because the chances of such an organization corrupted by the sheer lust for power are much greater than the Executive functioning within a constitutional framework, where checks and balances ensure accountability. (PIB Features) I would be happy to send Mr. Sibal a document for his perusal on how the Lokpal could be effective in stamping out the corruption epidemic that is sweeping the country. As in any epidemic to win 80% of the focus has to be on prevention.