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Comments on Mr. Sibal Note in PIB Features, June 29, 2011

Comments on Mr. Sibal Note in PIB Features, June 29, 2011

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Published by Sanjay Bhargava
Lokpal India Corruption Sibal
Lokpal India Corruption Sibal

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Published by: Sanjay Bhargava on Jun 29, 2011
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Comments by Sanjay Bhargavasanjaybhargava@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 givemy point of view on his comments. If this reaches him he may care to respond or even agree to amoderated public debate on this note with a person like Mr. Arvind Kejriwal or Ms. Kiran Bedi (not aBIG FIGHT but a moderated public debate). The media editors can then cast anonymous votes onwho won the debate. Who wins does not mean anything except that it is one more input of what mediaeditors feel when they are voting off the record.The provisions of the Jan Lokpal Bill, proposed by Shri Anna Hazare and his nominees must beanalyzed, 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 Membersfrom the Opposition seek explanations from Government for policy decisions, comment and analyze proposed Government legislation and seek information from Government. Through robustParliamentary procedures including debates, the people of India are informed of the manner in whichthe 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 hasworked well? If it worked really well the need for Lokpal would lessen but most countries around theworld do have Lokpal like bodies. I wonder whether the other govt members of JDC, Congress,cabinet, PM other UPA partners endorse Mr. Sibal’s views or are these his own personal views. Whois 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 isaccountable through an open and public judicial process. The hierarchy of courts helps correct judicialerrors. 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 byframing a law which on the one hand protects judicial autonomy and independence, and at the sametime ensures strict accountability. In other words, each limb of the State, the pillars of ouconstitutional system, is accountable, one way or the other. That is the essence of our ParliamentaryDemocracy.While people may have questions on how well the judiciary works we have often heard thecomment “If it were not for the judiciary …. “ This seems to suggest that the biggest problem that wehave 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 anunelected 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 thesole power to investigate all public servants. It is not answerable to the Legislature. OutsideGovernment, 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 theJudiciary except when it initiates the judicial process by taking recourse to the provisions of the Codeof Criminal Procedure. Besides, it will have the unique power to investigate members of theJudiciary. 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 boththe executive and the judiciary by reducing corruption in the ranks and both the PM and CJI shouldwelcome the assistance that the Lokpal provides. Lot of institutions around the word such as bankshave bodies like the RBI audit them. They also have internal audit teams and CEO’s welcome theoversight the regulator and internal audit provide. It would be interesting to see whether the currentCJI 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 torevision, 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 Judiciaryresolves 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), alsoindependent constitutional authorities. Again the comparison is odious. The Election Commission’sfunctions are regulatory and periodic and the CAG’s function is to analyze expenditure of Government Departments and agencies funded by the Government to ensure that moneys allocatedare 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 specialcourt. Why should the prosecution not be independent? The suspect has right to counsel and will beheard by the judiciary?It is, therefore, clear that in the scheme of things, an unelected Lokpal who is notaccountable, 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 theJan 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 publicservant 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 appliesto the political process since the political class is corrupt and seeks to protect itself by not enactinglaws which make them accountable. These assumptions are not entirely accurate. The premise is thatif a Lokpal is set up outside the Government, there would be no confluence of interests andthe 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 oneonly has to see the poor outcomes and one’s own experiences to see that the nexus Mr. Sibal talksabout has reached menacing proportions. Even he concedes that the assumptions maybe somewhataccurate. 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, allCentral Government employees (about 4 million) and a Lokayukta in every State which has in itsambit all State Government employees (about 7-8 million). If the Lokpal or Lokayuktas are to dealwith corrupt acts of about 10-12 million people, what is required is a mammoth machinery both in

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Rong Singh added this note
Therefore, the people of India, in giving themselves a strong Jan Lokpal bill, would NOT hesitate to take all such steps that may be seen to be necessary, which would definitely include AMENDING THE CONSTITUTION AND / OR RECONSTITUTING OUR PARLIAMENT ITSELF WITH NEW FACES, i.e. anything & everything to make us a strong & vibrant nation. We need to add a SOUL to the words SARE JAHAN SE ACHHA !
Rong Singh added this note
Today, it has to be clearly understood by every 'elected' or 'selected' politician of India that the Civil Society's draft of the Jan Lokpal bill will have to be adopted WORD-FOR-WORD and nothing less will be acceptable to the people of India quite simply because it is the better draft and PERFECT in every which way. It is also APOLITICAL and giving it political color only exposes the desperation.
Rong Singh added this note
Clearly, Mr Sibal is trying to complicate a simple issue for reasons NOT best known to him alone ... we understand a few things too !! What he fails include in his scheme of things is the undeniable fact that India has awakened, and the game is up for the corrupt ! They are running out of time ... and there is really no escaping the people now. So please rethink your strategy !
Rong Singh added this note
It is also a matter of great concern why the PM keeps on INSULTING the mindset of a nation by saying there is no "Magis Wand" or a 'quick-fix' solution to corruption ! WHO IS ASKING FOR SUCH THINGS ?? Does he wish to say that the Civil Society's demands are of that nature ??!! Is it really scholarly of him to interpret our draft against his with such childish descriptions ?? Does it make sense ?
Rong Singh added this note
The Civil Society is also OF THE PEOPLE, FOR THE PEOPLE & BY THE PEOPLE ... they did not actually arrive from Planet Mars ! And they are here because the representatives we elected so far not only failed to do their job, but actually MURDERED EVERY INSTITUTION OF DEMOCRACY & DEMOCRACY ITSELF. India is now a fascist nation, & only the juvenile 'WEST' thinks of it as a democracy. Certainly not us !
Rong Singh added this note
My problem is that I am not even CURIOUS to read this predictable rubbish from Kapil Sibal ! I simply believe that it will not take a manuscript of unavoidable prose by the kilometers to explain the obvious !! No amount of crocodile tears over words like 'Democracy', 'Parliament' or 'elected representatives' will save the day for these chaps. The government's draft is absurd & MALA FIDE. Period.
Rohit Nigam added this note
Good work Sir ... Keep it up ... I think you could have put in more comments
Mohit Rana liked this

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