Wednesday, August 17, 2011

Complete set of differences between Government's Lokpal bill and JanLokpal bill


Complete set of differences between Jan Lokpal and Government's Lokpal bill
These differences between the two versions of the Lokpal Bill were claimed by India Against Corruption in a document released online on June 23, 2011. In the absence of comments from critics of Jan Lokpal Bill, this section may therefore represent only one side of the debate.
























Issue
The Jan Lokpal Bill 
Government's Lokpal Bill
Comments by critics (India Against Corruption) of Lokpal
Comments by critics of Jan Lokpal
Lokpal should have power to investigate allegations of corruption against PM. Special safeguards provided against frivolous and mischievous complaints
PM kept out of Lokpal’s purview 
As of today, corruption by PM can be investigated under Prevention of Corruption Act. Government wants investigations to be done by CBI, which comes directly under him, rather than independent Lokpal.
The PM, as the head of the state, should not be allowed to be probed by an extra-constitutional body. That undermines existing bodies set up constitutionally to investigate that
Judiciary
Lokpal should have powers to investigate allegation of corruption against judiciary. Special safeguards provided against frivolous and mischievous complaints
Judiciary kept out of Lokpal purview.
Government wants this to be included in Judicial Accountability Bill (JAB). Under JAB, permission to enquire against a judge will be given by a three member committee (two judges from the same court and retd. Chief justice of the same court). There are many such flaws in JAB. We have no objections to judiciary being included in JAB if a strong and effective JAB were considered and it were enacted simultaneously.
Having Lokpal investigate the Judiciary fouls the existing structure of the judicial review process. This is dangerous.
Lokpal should be able to investigate allegations that any MP had taken bribe to vote or speak in Parliament.
Government has excluded this from Lokpal’s purview 
Taking bribe to vote or speak in Parliament strikes at the foundations of our democracy. Government’s refusal to bring it under Lokpal scrutiny virtually gives a license to MPs to take bribes with impunity.
According to Article 105 of theConstitution of India, MPs have certain legal protections for their actions in the Parliament. Lokpal cannot supercede this clause
Grievance redressal
Violation of citizen’s charter (if an officer does not do a citizen’s work in prescribed time) by an officer should be penalized and should be deemed to be corruption.
No penalties proposed. So, this will remain only on paper.
Government had agreed to our demand in the Joint committee meeting on 23rd May. It is unfortunate they have gone back on this decision.
CBI 
Anti-corruption branch of CBI should be merged into Lokpal.
CBI to be completely controlled by the Government and the Prime Minister.
CBI is misused by governments. Recently, govt has taken CBI out of RTI, thus further increasing the scope for corruption in CBI. CBI will remain corrupt till it remains under government’s control
Selection of Lokpal members (Selection committee)
1. Broad based selection committee with 2 politicians, four judges and two independent constitutional authorities.
2. An independent search committee consisting of retd constitutional authorities to prepare first list.
3. A detailed transparent and participatory selection process.
1.Five out of ten members from ruling establishment and six politicians in selection committee (PM, Leaders of ruling party in two House, Leaders of Opposition in two houses, Minister for Home Affairs). Others bring two judges and President of National Academy of Sciences 
2. Search committee to be selected by selection committee
3. No selection process provided. It will completely depend on selection committee.
Government’s proposal ensures that the government will be able to appoint its own people as Lokpal members and Chairperson.
Interestingly, they had agreed to the selection committee proposed by us in the meeting held on 7th May. There was also a broad consensus on selection process. However, there was a disagreement on composition of search committee. We are surprised that they have gone back on the decision.
Who will Lokpal be accountable to?
To the people. A citizen can make a complaint toSupreme Courtand seek removal.
To the Government. Only government can seek removal of Lokpal
With selection and removal of Lokpal in government’s control, it would virtually be a puppet in government’s hands, against whose seniormost functionaries it is supposed to investigate, thus causing serious conflict of interest.
Integrity of Lokpal staff
Complaint against Lokpal staff will be heard by an independent authority.
Lokpal itself will investigate complaints against its own staff, thus creating serious conflicts of interest
Government’s proposal creates a Lokpal, which is accountable either to itself or to the government. We have suggested giving these controls in the hands of the citizens.
Method of enquiry
Method would be the same as provided in CrPClike in any other criminal case. After preliminary enquiry, an FIR will be registered. After investigations, case will be presented before a court, where the trial will take place
CrPC being amended. Special protection being provided to the accused. After preliminary enquiry, all evidence will be provided to the accused and he shall be heard as to why an FIR should not be regd against him. After completion of investigations, again all evidence will be provided to him and he will be given a hearing to explain why a case should not be filed against him in the court. During investigations, if investigations are to be started against any new persons, they would also be presented with all evidence against them and heard.
Investigation process provided by the government would severely compromise all investigations. If evidence were made available to the accused at various stages of investigations, in addition to compromising the investigations, it would also reveal the identity of whistleblowers thus compromising their security. Such a process is unheard of in criminal jurisprudence anywhere in the world. Such process would kill almost every case.
Lower bureaucracy
All those defined as public servants in Prevention of Corruption Act would be covered. This includes lower bureaucracy.
Only Group A officers will be covered.
One fails to understand government’s stiff resistance against bringing lower bureaucracy under Lokpal’s ambit. This appears to be an excuse to retain control over CBI because if all public servants are brought under Lokpal’s jurisdiction, government would have no excuse to keep CBI.
The same bill should provide for Lokpal at centre and Lokayuktas in states
Only Lokpal at the centre would be created through this Bill.
According to Mr Pranab Mukherjee, some of the CMs have objected to providing Lokayuktas through the same Bill. He was reminded that state Information Commissions were also set up under RTI Act through one Act only
Whistleblowerprotection
Lokpal will be required to provide protection to whistleblowers, witnesses and victims of corruption.
No mention in this law.
According to govt, protection for whistleblowers is being provided through a separate law. But that law is so bad that it has been badly trashed by standing committee of Parliament last month. The committee was headed by Ms Jayanthi Natrajan. In the Jt committee meeting held on 23rd May, it was agreed that Lokpal would be given the duty of providing protection to whistleblowers under the other law and that law would also be discussed and improved in joint committee only. However, it did not happen.
Special benches in HC
High Courts will set up special benches to hear appeals in corruption cases to fast track them.
No such provision
One study shows that it takes 25 years at appellate stage in corruption cases. This ought to be addressed.
On the basis of past experience on why anti-corruption cases take a long time in courts and why do our agencies lose them, some amendments toCrPC have been suggested to prevent frequent stay orders.
Not included
Dismissal of corrupt government servant
After completion of investigations, in addition to filing a case in a court for prosecution, a bench of Lokpal will hold open
hearings and decide whether to remove the government servant from job.
The minister will decide whether to remove a corrupt officer or not.
Often, they are beneficiaries of corruption, especially when senior officer are involved. Experience shows that rather than removing corrupt people, ministers have rewarded them. Power of removing corrupt people from jobs should be given to independent Lokpal rather than this being decided by the minister in the same department.
Punishment for corruption
1. Maximum punishment is ten years 2. Higher punishment if rank of accused is higher 3. Higher fines if accused are business entities 4. If successfully convicted, a business entity should be blacklisted from future contracts.
None of these accepted. Only maximum punishment raised to 10 years.
Financial independence
Lokpal 11 members collectively will decide how much budget do they need
Will be paid through the Consolidated Fund of India  (Finance ministry will decide the quantum of budget)
This seriously compromises with the financial independence of Lokpal
Prevent further loss
Lokpal will have a duty to take steps to prevent corruption in any ongoing activity, if brought to his notice. If need be, Lokpal will obtain orders from High Court.
No such duties and powers of Lokpal
2G is believed to have come to knowledge while the process was going on. Shouldn’t some agency have a duty to take steps to stop further corruption rather than just punish people later?
Tap phones
Lokpal bench will grant permission to do so
Home Secretary would grant permission.
Home Secretary is under the control of precisely those who would be under scanner. It would kill investigations.
Delegation of powers
Lokpal members will only hear cases against senior officers and politicians or cases involving huge amounts. Rest of the work will be done by officers working under Lokpal
All work will be done by 11 members of Lokpal. Practically no delegation.
This is a sure way to kill Lokpal. The members will not be able to handle all cases. Within no time, they would be overwhelmed.
NGOs
Only government funded NGOs covered
All NGOs, big or small, are covered.
A method to arm twist NGO
False, Frivolous and vexatious complaints
No imprisonment. Only fines on complainants. Lokpal would decide whether a complaint is frivolous or vexatious or false.
Two to five years of imprisonment and fine. The accused can file complaint against complainant in a court. Interestingly, prosecutor and all expenses of this case will be provided by the government to the accused. The complainant will also have to pay a compensation to the accused.
This will give a handle to every accused to browbeat complainants. Often corrupt people are rich. They will file cases against complainants and no one will dare file any complaint Interestingly, minimum punishment for corruption is six months but for filing false complaint is two years.
   (source)



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