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last activity : 11 10 2011 10:44:20 +0000
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Like it or hate it, here I toss it up for your quick appraisal and comments... Rajeev
Some Significant Features of Jan Lokpal Bill, 2011
Definition of Whistleblower
· The way ‘Whistleblower’ is defined would encourage frivolous complaints by subordinate staff who is disgruntled. [Clause 2(m)]
“Whistleblower” means any person, who provides information about corruption in a public authority or is a witness or victim in that case or who faces the threat of
1. (i) professional harm, including but not limited to illegitimate transfer, denial of promotion, denial of appropriate perquisites, departmental proceedings, discrimination
Definition of ‘Civil Society’
· The Search Committee would comprise of five members of Civil Society, but the Bill does not define Civil Society
Composition of Selection Committee
· There are only two public representatives in the Selection Committee.
· There is no representation from Rajya Sabha
· What is the rationale of having CAG and CEC in the selection committee?
· If CAG has been included, then why not Attorney General and other such constitutional offices?
· Inclusion of all previous Chairpersons of Lokpal would mean that Chairperson, Lokpal would have a perpetual role in selection of future Chairpersons. Is there any other example of similar provisions in appointments to Constitutional posts?
Composition of Search Committee
· Five members of the Search Committee would be nominated by the Selection Committee
· These five persons will co-opt any 5 members of their choice from Civil Society.
· Isn’t it an extraordinary and bizarre provision that one half of committee will handpick another half. Why?
· This provision is vague, as civil society has not been defined.
· Why is the eligibility for being nominated as Search Committee member limited to Judges, CAGs and CECs?
Criteria for Empanelment by Search Committee
· Search Committee will invite nominations from the persons whom they deem fit. Why?
· What is the meaning of clause ‘from such class of people, as they deem fit’? How is this ‘class’ defined?
· Does such an ambiguous terminology not violate the Fundamental Right to Equality enshrined in the Constitution?
· An important qualifying criterion is record of public service particularly in the field of fighting corruption shall be eligible for being considered for nomination. Why?
Powers
· The Jan Lokpal will have powers to/ of
· superintendence on investigation
· impose punishment
· Director of Enforcement
· Civil Court
· Intercept phone calls, data transmission
· Issue search warrants
· Transfer government servants
· How can investigation, executive and judicial powers be vested in same authority?
· Jan Lokpal will supervise and give directions to investigating authorities. This amounts to influencing the investigation. How will then the investigation be fair and unprejudiced?
· The Jan Lokpal can order transfer of government servant if government servant is likely to destroy or tamper with the evidence or influence the witnesses or is likely to continue with corruption. Read with the definition of ‘Whistleblower’, will not render impact administration?
Investigation and Prosecution against High Functionaries
· It would require the consent of just 7 members of Jan Lokpal to initiate investigation against the Prime Minister or Chief Justice of India, Judges of SC/ HC, Ministers and MPs
· Moreover, it such 7 members could also decide to permit prosecution of the Prime Minister or Chief Justice of India.
· The investigation against the PM or CJI can also include interception of their phone calls, data communication and transfer of government officers of PMO and Supreme Court/ High Courts. There is no safeguard in the Jan Lokpal Bill against such possibilities.
· Not to forget that these members would be selected by completely arbitrary selection process involving major role of undefined ‘civil society’.
Investigation of Others
· Jan Lokpal covers all government servants, all elected representatives, entire judiciary.
· How many lakh persons would be required to investigate and prosecute all above, with a Preliminary Examination to be completed within 30 days, as stipulated in the Bill?
Appeals against the orders of Lokpal
· Appeal against any order by Lokpal or any officer of the Lokpal can be made at the level of High Court
· How many persons of lower bureaucracy would have the capacity to approach High Court for relief.
· The Bill states that ordinarily, High Courts shall not stay the order. Can an act stipulate such a condition on Courts?
· Bill also states that if HC does stay the order, 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. Given the pendency in the courts, will it not mean that aggrieved persons can be deprived of justice in courts in name of such time cap?
Power to intercept Phone calls, data transmission
· The Bill proposes that Lokpal would have unbridled powers to intercept phone, emails, internet communication of any one under investigation, with requiring any permission from Home Ministry, Courts or any other third party authorities.
· What is the safeguard against misuse of these powers?
· The Bill does not rule out it such powers cannot be used againsts PM, Judges or MPs.
Protection to Government Servants
· Government servants enjoy protection under Article 311 of the Constitution.
· This version of Jan Lokpal Bill is against the Article 311. Would a constitutional amendment be required and would it change the basic character of the Constitution?
Private Sector and NGOs
· Jan Lokpal is based on UN Charter Against Corruption, which is quoted as extended Preamble of the Jan Lokpal Bill.
· Almost all articles of UNCAC is covered by the Bill, except the following articles:
a. Article 12 dealing with Private Sector
b. Article 13 dealing with NGOs
· Why is Jan Lokpal Bill silent on these issues?
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