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September 06, 2011

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Thanks Namit. Frankly, this is the first time that I read a summary of the JLP.

It is important to understand the Jan Lokpal in the context of present day laws before it is branded as onerous among other names. The Jan Lokpal bill does everything that present day laws permit except that its done independently to avoid interference of any sort.

"Lokpal can fine, demote, or fire government employees from their jobs."

When a govt. employee is to be investigated today, there is CBI investigation and a Departmental investigation. The Departmental investigation decides what should happen to this person's job. The CBI investigation decides about whether he/she should go to jail. The CBI files its recommendations in court and its up to the courts to decide. The Departmental investigation is often handled by colleagues of the employee. So even if they decide he/she should be fired the final decision has to be taken by the Minister of the Dept. This is almost never done.

In the case of the Jan Lokpal bill, the CBI investigation will proceed exactly the way it does as described above but it will be independent (part of the Lokpal). Likewise the departmental investigation will be handled by the Lokpal investigators and the final decision will be taken by the Lokpal bench. The individual can always challenge this in the high court.

The wiretap phone and internet...

Today, the investigative agencies can do this too! So its not something new. The only diff is that today they have to get the approval of the Home Secretary (a babu). The odds that he might leak this info. to his colleague is very high. So the only difference on JLB is that Lokpal bench will issue the approval instead of the babu. Once again its independence that's the key.

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FYI -- A Group B Income Tax officer can investigate the Tax returns of the Chief Justice/PM etc. and impose penalties! (This is the law today).

"It is important to understand the Jan Lokpal in the context of present day laws before it is branded as onerous among other names."
Pran-da, I agree with you that a lot of the laws and procedures that this bill is built upon are not new (wiretapping, for instance), even when the packaging is unique. But it is important to read what I actually wrote. I did not brand the Jan Lokpal [bill] onerous, nor did I call it "other names" [presumably negative]. What's with this defensive attitude? Is that a known side effect of kool-aid? :) What I actually wrote is this:
The Lokpal's and the special court's decisions can be legally challenged, though, for no good reason, this [the legal challenge] has been made far more onerous than for other civil and criminal cases.

So what led me to write that? Let me explain. This might also illustrate what it means to me to approach something with a critical, skeptical eye, including when one is trying to improve a thing, as I am trying to do here. Did you know that ver 1.8 of the bill did not grant *any* rights to appeal the Lokpal's and the special court's decisions? None, nada. This is what it said:

No proceedings of the Lokpal shall be held to be bad for want of form and except on the ground of jurisdiction, no proceedings or decisions of the Lokpal shall be liable to be challenged, reviewed, quashed, or called in question in any court of ordinary Civil Jurisdiction. [emphasis mine]

This gave me the shivers. Is this Saddam's Iraq? This seems to me a clear violation of basic liberalism and of the constitution that grants Indian citizens the right to appeal a guilty verdict. In this case, even the Supreme Court lacks the power to hear such appeals? I mean, how did this get in there and survive until at least ver 1.8? In response to criticisms, new language came in, and ver 2.3 says the following:

Appeals against the orders of Lokpal:
12. Any orders passed by any bench of the Lokpal or any officer of the Lokpal shall be subject to the writ jurisdiction of the High Court under Article 226 of the Constitution of India. Ordinarily, High Courts shall not stay the order. However, if it does, it will have to decide the case within two months, else the stay would be deemed to have been vacated after two months and no further stay in that case could be granted.

This is better but still anally retentive, a thinly disguised attempt to stay close to the spirit of ver 1.8. I mean read it. Why say, "Ordinarily, High Courts shall not stay the order"? Why the hell not? After such warning, if a foolhardy high court does take up the cause of someone condemned by the Lokpal, it is allowed only two months to decide the case. This is absurd. What gets done in Indian high courts in two months? This clause is a way of inching back to the language of ver 1.8. It curtails the rights of government employees' more than that of other citizens (constitution violation alert!). I think the two month clause needs to go. At least it should be made larger, a year or two, or better yet, closer to the average time high courts take to process similar appeals today.
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I actually support the concept of the Lokpal. I am just opposed to having a Lokpal that is able to act oppressive, unjust, and discriminatory. Fortunately, there are people who pay close attention to civil liberties, rights, and constitutional decorum in India. For instance, read what Shoma Chaudhury, Managing Editor of Tehelka, wrote about this bill in April. This bill is larger than any one man, and any man's faith in another man. Reading this you'll begin to understand why so many voices have been raised about the bill violating the constitution and representative democracy (current version is much better on that front, but for many the trust remains broken). Here is Chaudhury:

Among its many contentious clauses, the Bill wanted to give the Jan Lokpal the right to check “reckless decision-making” by the government; suspend or transfer errant officials, including the prime minister; wanted Magasaysay and Nobel Prize winners to be part of the selection committee; wanted to ensure transparency by videographing and making public all discussions around the Bill and other Lokpal decisions; wanted to have the power to address grievances against maladministration; and roll the powers to investigate, prosecute and enforce all unto itself. Many of these clauses have been dropped as criticisms have flowed in, but their presence in a Bill that was allowed into the public domain displays the flawed thinking that had gone into it.

How can a non-elected representative be allowed to decide and alter what is “reckless” decision-making by the government? Who will define the parameters of the subjective word “reckless”? And why have an elected executive then? Also why take the desire for transparency to such extremes? How can decision-makers have a frank discussion if every stage of that debate — not just the final decision — is to be publicised and critiqued?

The real trouble at the heart of the Jan Lokpal Bill as it was drafted by Anna Hazare’s team is that the structural changes it proposed relied heavily on a belief in the immaculate virtuousness of its champions. It deemed itself worthy of accruing immense, even unconstitutional, power because it believed itself to be incorruptible as individuals. Dangerously, personality had come to stand in for structure.

More in my larger analysis of corruption, the ombudsman experience in other countries, and the movement in India. Out Sept 12.

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