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Posted on 24 December, 2013, No Comments Comments admin
What is the exact nature of the Congress-AAP relationship? Many have suggested that AAP is the B -Team of the Congress. The truth is otherwise. For the present, the Congress has agreed to the humiliation of working as the B-Team of the AAP. The relationship between the two merits some other comments.
The BJP as the largest single party in Delhi got only 32 seats. It was clear that till it achieves a stable support of 36 MLAs it will not try and form the government. The BJP in an upfront manner informed the Lt. Governor of this statistical reality. The party has reconciled to sitting in opposition or a fresh election.
The AAP got only 28 seats. They were short of the magic figure needed to form a government. There obviously was a temptation to make their presence felt nationally by forming a government in Delhi. They went back on their commitment not to take the Congress support through a farcical referendum.
The Congress Party was a clear loser in the election. It got only eight seats. Most of its leaders lost the election. The Congress cannot afford an early re-election. It needs breathing time to recover. If no government had been formed in Delhi, a re-election could have been held along with Lok Sabha polls. In that event, the ‘Modi factor’ would also have influenced the outcome of the polls. The election would have been polarized between the BJP and the AAP with the Congress getting squeezed out even more.
It is here that a convergence of two contradictory interests took place. The AAP needs the support of the 8 MLAs of the Congress to form a Government. Government formation would help it to prevent its MLAs getting scattered. Government formation in the national capital in its assessment would further enable it to make its presence felt nationally. The AAP knows that such a Government cannot be a lasting one. It therefore takes a calculated risk. It continues to denigrate the Congress and take its support. The Congress on the other hand chooses to get insulted in order to defer the prospects of another electoral humiliation. It is hoping to support the AAP for some reasonable period in order to defer the elections in Delhi so as to enable it to politically recover. Both Congress and the AAP have entered in to this political adjustment with a self serving motive. Each wants to outfox the other. The Congress wants the AAP to make a few mistakes so that it can recover its constituency and then force a poll. The AAP knows that it is forming a fragile Government with a short life. It has sacrificed its principle of ‘no Congress support’ in order to make its presence felt nationally by forming a Government in the national capital. When the two Parties jointly constituting a majority in the Assembly are allowing a Government formation with a dishonorable motive, one only hopes that governance and eventually the citizens of Delhi do not become a casualty.
Posted on 22 December, 2013, No Comments Comments admin
The period of Internal Emergency from June 1975 till January 1977 was a great learning experience for me . I was still a student and one of the youngest detenus who spent 19 months in detention for having opposed the Emergency. A key question for us in prison was how long emergency will last. Mrs. Indira Gandhi, the then Prime Minister, consistently justified her dictatorship, proclamation of emergency, press censorship, detentions of political opponents on the ground that it was a ‘bitter pill’ to be swallowed during the ‘era of discipline’. She claimed that the people of India supported it. She was convinced that the 20-Point programme that she announced during the emergency had a popular sanction. There was no way of measuring this support. But her unilateral assessment guided her political decisions. Towards the end of 1977 she announced General Election on the basis of this popular support and sanction to the Emergency. She was routed in the election. She lost even her own seat.
This is one of the dangers inherent in excessive propaganda. Demagogues always believe their own logic to be true. Governments buy their own propaganda. The UPA government had also misled itself because of excessive advertising of its so-called achievements.
Aam Aadmi Party
The Aam Admi Party’s performance in Delhi Assembly elections was certainly remarkable. Its silent and systematic campaign produced results. It succeeded in marketing an idea which was accepted by a significant number of people. It emerged as the number two party behind the BJP both in terms of votes and number of seats. Delhi has produced a hung assembly. A hung assembly is not necessarily a dead-locked assembly. If smaller parties give support to any of the major parties, a Government is possible. The Congress with eight seats is the balancer in Delhi. It has announced a conditional support for the AAP party.
The AAP had categorically stated that it represents ‘alternative politics’. It is guided by idealism. It will neither support or accept support from either the Congress or the BJP. Obviously if the AAP stands by its publicly stated commitment, the Delhi assembly becomes a dead-locked assembly wherein after a reasonable time a fresh poll has to be ordered.
How does the AAP justify a volte face where it seems to be compromising on its commitments of alternative politics. Obviously, political opportunism should have no place in alternative politics dictated by idealism. The AAP may be concerned with the fact that many MLAs including the AAP MLAs do not want an early poll. It may even be strategizing on how to capture power, announce a few popular decisions and carve out a further positioning for itself. For any of these strategies to prevail the AAP has to somersault from its stated position. It has to retract its public commitments of not accepting support from the Congress Party. It has, therefore, decided to enact a farcical referendum. This referendum has a self-serving model. Motley crowds are collected all over the town whose support is sought. A question is asked whether AAP should form the government. Obviously, they are all thrilled with the idea . In the process, a statistical wonder is produced wherein less than 30% people voted for AAP in the Election but more than 75% want it to form a government.
In effect, political opportunism is being masked with the idea of popular sanction behind it. A space is being created wherein its leaders could argue –‘ we were not hungry for power, we would not be taking Congress Party’s support. But we are democrats who are now bowing to the popular will of the people. It is the people who want AAP to form the Government with Congress support.’
Is this the beginning of the alternative politics or the end of it.
Posted on 21 December, 2013, No Comments Comments admin
The Indian economy today is passing through a difficult phase. There is a sense of anxiety about the state of the economy if not restlessness. The industry wants the things to move. An year ago, we all worried that a policy paralysis was about to set in. These were expressions being used for the first time. Everyone hoped that in the months to come things are going to improve. There can be no alibi for non-performance on the economic front. Governments which fail to deliver on the economy tend to look for alibis. The Government at the centre gives the alibi that the Parliament is not being allowed to run and that important legislations are held up for want of consensus. But they never look inwards as to what the real problem is. 9 out of 10 measures required for the economy do not need legislations. They are executive decisions which are in the administrative domain. Therefore executive authority is enough to deal with them. I think we have come to a stage where the only silver-lining today is that things can’nt go worse further if at all they have to improve. And we are anxiously looking for a situation where things will improve.
People have been talking about the economic measures and the perception about BJP and NDA as to what they propose to do. There is no doubt as far as the NDA is concerned as to the destination where the Country should be taken. What is of concern is the ability of the Government of the day to take decisions. Governments know the direction which is to be taken. They know the programmes which need to be followed. We are a country with 400 million people below poverty line. Despite inadequate governance, we had 8 to 9 percent growth rates. And if despite poor governance, we did so well, then we can see what would be India’s potential with effective governance. There are Governments at the States. Some of these States like Gujarat and Madhya Pradesh have achieved remarkable growth in all these years. Gujarat has been a growth story for long but Madhya Pradesh which had the tag of being a prime BIMARU state has turned around and recorded double digit growth rates. Some may say that it started with a low base but that doesn’t take away the fact that it’s a hugely successful turn-around story. Good governance stands at the core of this success.
One has to honestly analyse what went wrong in the India story. The first lesson that one learns from the last few years is that India can not afford a non-politician as a Prime Minister. Prime ministership is not an employment. Prime Ministers are not judged by the number of years they spend in office. They are always going to be judged by the direction which they gave as far as the economy is concerned. And if that is to be judged, the PM’s word must be the last word in the Government. Prime Ministers must be the natural leaders of the country, certainly of their own Party and Government. Prime Ministers can never look helpless. Prime Ministers can not go back with a feeling that I am not being allowed to deliver. If you were ever to come to a situation like this, you will never be able to hold that authority of the Government. Therefore India must now realize that this whole experiment of the political and executive authority residing in separate power centers does not work. A Corporate can run on this type of a model where the Board of Directors sit somewhere, the authority resides there and the hired CEO runs the company and reports to the Board. Corporates can run in this manner but you can not have the largest democracy of the world running in this manner.
The second important lesson is that our objective should be to have higher growth rates so that an enriched Government has enough money to spend on poverty alleviation programmes for the poor. You cannot merely rely on potential populism in order to pursue your politics.
The third important lesson is about the image of India. Image will not merely depend on jingoistic statements. Image also depends on how we govern. If we have an image of a policy paralysis or an image where you do not inspire confidence even in your State Governments and I think a large part of the energy of the present Government in the last few years is really spent on this, then we can not make any good progress. Some States stand up and feel that you cannot really perform if you have an unfair Government at the centre. This is not a Government which is fair. Not being content with a drubbing at the polls, the Government wants to set up a Commission of Enquiry against a State. This is a Government which discriminates against the States and therefore , there is no comfort environment in which the States can function effectively. I have no hesitation in saying that if we are looking for political confrontations all the time, then you can not develop a larger consensus for economic growth. It is a lesson for all Governments in future that India is a federal polity. There would always be Governments in the States belonging to other political formations. You have to accept that verdict of the electorate and you have to allow them to function and allow them space to function. You have to realize that arrogance in politics is always counterproductive. The people who meet you when you are going up, would also be the same to meet you when you are slipping down. Only posterity can see who has the last laugh. I remember how my suggestions on the LokPal Bill were being snubbed on the 29th December 2011 and the House got adjourned and just two days after the election results came out, even my floor suggestions on the Lok Pal Bill without written amendments were being accepted. I said to myself that the mighty have fallen. There is no last day in the political calendar. There is a particular methodology of dealing with the political system. In the past It has been practiced. I remember how cordial relations and bonhomie existed between Shri P V Narasimha Rao and Shri Atal Behari Vajpayee.
The winds of political change is already there. As far as India’s economy is concerned, the biggest challenge is how to revive the investment cycle. And I think If we have to revive the investment cycle, India’s economic decision making must become credible. The present Government has lost its will to rule. They see the writing on the wall. Its no longer a lame duck Government, the closer analogy would be dead duck Government. We are bracing for a political change in this country. Change and Change for the better is inevitable and its now a matter of right for all Indians.
Posted on 20 December, 2013, No Comments Comments admin
The Congress Party has not realized the challenges that it faces. It has no answers to reviving the economy or cleansing itself from the allegations of corruption. It further does not know how to politically deal with Narendra Modi. Rather than its organization being strengthened and the charisma of its leaders being built up, it believes that Modi can be politically countered either by the CBI or by outlandish comments of its leaders. The Home Minister Shri Sushil Kumar Shinde’s statement that the Centre is considering the appointment of a Commission of Inquiry on the alleged snooping charges, only establishes that the Congress Party has failed to learn the lessons from its electoral defeat.
The 2G spectrum allocation was a monumental fraud. The Congress believes it has resolved the issue through a cover-up report of the Joint Parliamentary Committee. Even the notes of dissent submitted by the Opposition MP’s have not been considered. Adarsh scam involved a loot of public property by private persons. The Congress CM of Maharashtra, Ashok Chavan, had to resign on the issue. Today, the Congress believes that it has resolved the issue by denying the sanction to prosecute Ashok Chavan and by the Cabinet rejecting the report of the Inquiry Committee probing the Adarsh scandal.
The Congress Party had highlighted the issue of alleged snooping on a lady by the Gujarat Police. The lady’s family has already clarified that it was a security measure on their own request. Notwithstanding that clarification, the Gujarat Government has appointed a Commission of Inquiry headed by a retired judge to look into the whole issue. The Commission at present is functioning. Rather than deal with the problems of economy and corruption, the Home Minister’s statement that the Government is considering the appointment of a Commission of Inquiry by the Central government on the same issue comes as a surprise. Notwithstanding the constitutional impermissibility of the Central Government appointing a Commission on the issue, the Congress Party has merely reaffirmed that it is not concerned with the problems facing the country. It believes that petty vindictive politics alone suits its modus operandi.
With a JPC cover-up of the 2G spectrum allocation scam, the country needs a Commission of Inquiry to go into the whole issue. The report of the Committee which examined the Adarsh scam has to be implemented and the guilty prosecuted. State Governments of Rajasthan and Haryana need to probe allegations of land scandals involving a key member of the first family of the Congress Party. Rather than clear itself from the charges of corruption on all these issues, the Congress Party feels that by diverting the principal issue, it can get a political advantage. Such moves will serve no useful purpose.
Posted on 19 December, 2013, No Comments Comments admin
The UPA Government has faced several adversities. The Government’s decision making ability is in doubt. The economy is not picking up. There is no coordination between the ministers. Corruption has dented the image of the government.
The Prime Minister was never perceived to be a mass leader. The projection by the UPA of their next generation leader has not taken off. Even a brief conversation with Congress leaders familiarizes one of the despondency. The UPA has lost the will to govern. Its leaders have lost even the will to fight back. The UPA’s non-performance and falling image was compounded by two other mistakes. The arrogance of power was writ large in the statements of its ministers and leaders. They thought that power is immortal and no other political combination will ever displace them. Excessive propaganda has its dangers. The people do not digest such propaganda. Only the UPA leaders are buying their own propaganda. The recently concluded session of Parliament evidenced this loss of capacity and will to rule. No effort was made to get the session to run. The session had to be abandoned midway. The disturbance was predominantly by the UPA members, their allies and supporters. The Lokpal Bill was delayed by several years because the UPA refused to accept the formulations contained in the now approved enactment. They broke the negotiations with Team Anna. They refused to accept my amendments on 29/12/2011 and adjourned the session at midnight. They refused to accept the Select Committee recommendations. An electoral wrap on the knuckles has led to the complete collapse of their arrogance. Now all these suggestions have been favoured. Their leader decided to join the bandwagon though belatedly. In the process he even forgot his ‘game changer’ speech delivered two years ago in the Lok Sabha where he had argued exactly the opposite.
What is the UPA game plan to deal with the AAP ? It may not be fully correct to say that AAP is the B-Team of the Congress. It is the Congress which has now agreed to become the B-Team of the AAP – again an evidence of the lack of will to fight back. On Telengana, the party is allowing the drift to continue. Obviously there must be a separate State carved out. But the government seems to have lost the ability to even bring representatives of both regions in Andhra Pradesh on a negotiating table to ensure that none goes back with a sense of injustice. No measures have been initiated to revive the economy or to improve upon the government’s image of indecisiveness or its track record of being a corrupt government. The UPA has not learnt from its mistakes. It merely tried to ensure that a phony JPC report on the 2G scam is pushed through without a discussion. It is mistakes of this kind which has cost the UPA its image. On the last day of Parliament session, the Home Minister tried his best to push through the Communal Violence Bill for introduction in the Rajya Sabha. The Bill is divisive. It seeks to polarize the society. It infringes the federal structure of the Constitution. Although these motivations were inappropriate, the incompetence of the Home Ministry prevented the introduction. It could not get the printed version of the Bill ready in time for being listed in the agenda.
It is now an under-statement to call the UPA a lame duck government.
It is in fact a dead duck.
Posted on 17 December, 2013, No Comments Comments admin
The arrest and the treatment meted out to the Indian diplomat Devyani Khobragade deserves to be condemned. The United States unilateralism in narrowing down the scope of diplomatic immunity should not be accepted by India. Article 31 of the Vienna Convention clearly provides that a diplomatic agent shall enjoy immunity from criminal action of the receiving State. The only exceptions mentioned in the Vienna Convention are that if there is a real action regarding the private immovable property located in the receiving State, the action relating to succession in which the diplomatic agent is involved or an action relating to any professional or commercial activity exercised by the diplomatic agent. These exceptions are only in relation to civil and administrative jurisdictions. With regard to criminal action again there is no exception which the Vienna Convention has carved out. Article 41 of the Vienna Convention on Consular Relations also provides that Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority. The Convention clearly states that Consular officers shall not be committed to prison or be liable to any other form of restriction on their personal freedom unless there is a judicial verdict. It goes further to state that if criminal proceedings are instituted against a consular officer, he must appear before the competent authorities but nevertheless, the proceedings shall be conducted with the respect due to him by reason of his official position. Even though the Covenants of the Vienna Conventions are clear with regard to the extent of immunity available to a foreign diplomats and consular officials, the US State Department has displayed scant regard for the established conventions. If the arrest of the diplomat raises serious questions with regard to the infringement of Vienna Conventions, the subsequent treatment meted out to her — the search, keeping the lady diplomat in custody with hardened criminals displays the cavalier manner in which the Americans are treating this issue.
Diplomacy operates on the principle of reciprocity. In the past when an elected representative from India has been denied US visa, the Government of India have taken it lying down because of its own sense of insecurity vis-a vis the concerned elected representative. This has given to the Americans a signal that they can act unilaterally without attracting an adverse reaction from India. The case of Devyani Khobragade is a pointer to the fact that Government of India must now and in future act on the principle of reciprocity. If there is any infringement of any local law, be it even a municipal or State laws, by an American diplomat/ consular official, we must waive off the immunity under the Vienna Conventions. Similarly, if we find the conduct of any US elected representative unacceptable in our subjective opinion, we must reserve the right to reject his or her visa application.
Posted on 16 December, 2013, No Comments Comments admin
The Indian Express today carries a detailed account of the alleged incident involving a young Intern and a former Supreme Court Judge viz. Justice Asok Kumar Ganguly. If it were an untested allegation, it might have been possible for Justice Ganguly to take a view that the law would take its own course and he would quit only if found guilty. This case, however, is a little different.
The Chief Justice of India had appointed a three-judge inquiry into the incident. Both the Intern and Justice Ganguly had given their versions to three sitting judges of the Supreme Court. Media reports indicate that the three-judges have found prima facie substance in the complaint of the Intern. It is, therefore, not merely an untested allegation. There is reason to believe on the basis of the report of the three judges that an offence could have been committed.
Since this involves a former judge of the Supreme Court, who is presently the Chairperson of the West Bengal Human Rights Commission (WBHRC) – a person in a high position, Justice Ganguly, like Caesar’s wife, must be above suspicion. Today, he is suspected to have committed an unacceptable offence. Justice Ganguly’s insistence on continuing in office raises a few questions. Firstly, if it were a case of a prominent politician rather than a former judge, would the judicial institutions have completely washed their hands off or would they have monitored the investigations? The fact that a former judge of the highest court is involved demands that the standards of judicial scrutiny will have to be higher than the normal. Secondly, in the face of this serious allegation, can Justice Ganguly at all discharge his functions as the Chairman of WBHRC? Thirdly, would it not be fair and proper that the former Judge contests this allegation as an ordinary citizen rather than a high functionary. If he were to relinquish his office, he would only be protecting the dignity of the office that he occupies. His decision to cling on to his office only establishes that even judges like most in the political positions continue to stick to their office till the intensity of public opinion forces them out.
Posted on 15 December, 2013, No Comments Comments admin
Democracy is a great leveller. It votes politicians into power; it votes them out of power. Those who move up will also move down. History judges them by the number of supporters that are left when they are down. Yesterday, on 14th December, 2013, we witnessed a Press Conference by the Vice President of the Congress Party flanked by ministers and another leader. The virtues of the Select Committee report and the Lokpal Bill were informed to the whole country. The body language of the four gentlemen who met the Press was a changed one. This was in sharp contrast to the stand of these leaders in the past three years. Earlier they had prevented Shri Anna Hazare even from sitting on a fast in support of the Lokpal Bill. They had involved Team Anna in endless negotiations only to reject all proposals. They introduced an unacceptable Bill in the Lok Sabha which was described as a ‘game changer’. It was unilaterally passed in the Lok Sabha in the face of resistance by the combined Opposition. When the Rajya Sabha sought to amend the Bill, the House was adjourned at midnight. When the Select Committee made recommendations, the same were placed before the parliament after almost a year. They insisted that the CBI would be under the government and not under the Lokpal.
But Yesterday, both the language, approach and the body language was different. After electoral wrap on the knuckles, the mighty had fallen. The ‘game changer’ had been abandoned. They were now looking for a conciliatory approach.
A fundamental change in democratic functioning is that power no longer vests in one institution. There is a spread of political power. Government, Opposition, Judiciary, Media, Bureaucracy, Civil Society, Public opinion are all repositories of power. Any one institution assuming all powers to itself is bound to be misled. Arrogance can never be strength. It is a mask for lack of confidence. Arrogant people are not learners. Arrogance should never be confused with confidence. Arrogance leads to over-belief in yourself. Yesterday’s Press Conference only reaffirms this.
This should also be a lesson for the new emerging AAP. The party has done remarkably well in the recent elections to Delhi Assembly. Its celebratory mood has converted itself into one of arrogance. The BJP has an absolute majority in three State assemblies. Two of them have been won with overwhelming majority. The BJP is the largest single party in the fourth assembly. The joy and celebrations ended on day one. The party got into the work mode on the next day itself. Maintaining dignity, grace and humility after victory is essential. Arrogance can be the first sign of downfall. What goes up in politics also comes down. It is this feeling amongst others which must inculcate humility in politics. The AAP party must learn from this. Today they challenge political opponents. They are disrespectful to leaders of other parties. Their letters to Mrs. Sonia Gandhi and Shri Rajnath Singh are worded impolitely. Today, even their mentor Anna is not being spared.
For the political class it should be a learning experience. After three years of arrogant attitude towards Lokpal, the Congress has decided to climb down. One hopes that the AAP party learns from this.
Posted on 14 December, 2013, No Comments Comments admin
The Bali Ministerial Conference has agreed on an interim measure for the most important issue of food security which affects millions of India’s poor. This measure would be in place for a period of four years by which time a permanent measure is promised to be negotiated. Thus, India has agreed to the so-called “peace clause” offered by the developed countries as a bait for trade facilitation agreement which they badly needed.
Before the Indian negotiators left for the meeting at Bali, the Government declared that our food security programme was a non-negotiable. But it ended up doing precisely the opposite in this meeting. After this agreement, our food security programme has become more vulnerable to interference by the WTO member countries. There would be greater international scrutiny because of the strict compliance norms stipulated by the WTO. There would be external pressures to adjust and size the public food stockholdings in India .
The clause 4 under the heading “Anti-Circumvention/Safeguards ” in this agreement reads ”Any developing Member seeking coverage of the programme under paragraph 2 shall ensure that stocks procured under such programme do not distort trade or adversely affect the food security of other members”. This clause prima facie is very mischievous and loaded against India. It has the potential to expose India’s food security programme to a host of challenges. It may extend to issues such as who should be regarded as poor in India , what should be the nutritional support that should be extended to such poor people, what should be the quantum of subsidy that should be given and many other related issues . These are the issues on which the Indian Parliament legislated recently with bipartisan support. Now through the Bali agreement, the Indian Government has allowed the international community to call into question various aspects of the legislation on Food Security approved by the Indian Parliament.
Clause 6 of the agreement makes it binding upon India to hold consultations with other members whenever requested about the operation of the public stock holding programme. As a result, India has taken a binding commitment for international scrutiny.
While on the one hand we have been told that India would not accept any restrictions on how it runs its food security programme, the agreement contains many open ended clauses that confer unbridled powers on all other WTO members to scrutinise , question and force us to right-size our food security programme. The powers to decide what is right for the farmers and the poor people of the country would no longer reside in the Indian Parliament. It would be dictated by what the rest of the world perceives to be right.
India’s request for calculation of subsidies at current prices have not been accepted. Thus the base figures of 1986-88 would form the basis for calculating subsidies. This would severely limit the quantum of our subsidies considering the current price levels compared to those in 1986-88.
What has India got in return for having compromised on the right to food of the people of this country ? The trade facilitation agreement was always the demand by the developed countries. They want better infrastructure, better customs procedures so that their goods can move across borders smoothly. India’s share in international trade is just about 1.6%. India needs better trade facilitation to increase its share to a more respectable level. But developed countries controlling more than 80% of world trade needed this agreement more than us. The negotiating space to demand something in return for this agreement belonged to India. We haven’t made the most of it. To add insult to the injury, while the commitments under the trade facilitation agreement are binding on the developing countries, the much needed financial and technological support from the developed world is at their mercy.
The WTO launched the Doha Development Round with the objective of an ambitious reduction and eventual elimination of trade distorting subsidies and creating a fair international trade regime. It urged all Members to raise their level of ambition. It wanted the agreement on the principle of “single undertaking” so as to ensure that the high level of ambition achieved. Successive rounds of negotiations have failed because the developed world have dragged their feet on the issue of reduction commitments on high level of subsidies in agriculture. Now the much-vaulted principle of single undertaking has been given the go-by as the West is unwilling to deal with its bloated subsidy programmes. It has therefore forced an agreement on trade facilitation which helps its goods and services to reach the shores of developing countries. It has gained better market access without conceding on its subsidy programme. India should not have accepted anything less than total exemption from any challenge to its food security programme under the AOA. By agreeing to the peace clause in this form as a temporary measure, India has given up its right to negotiate for a total exemption on a permanent basis.
Simon Evenett,, Professor of Internationals Trade at the Swiss University of St Gallen rightly observed ” The food security fix is something out of 1984. George Orwell would be proud”.
Indeed, the agreement proves that some are more equal than others.
Posted on 13 December, 2013, No Comments Comments admin
History has provided us another opportunity to approve the Lok Pal Bill which is pending for the last 46 years. Whether we correct the lapses and the weaknesses of the original Lokpal Bill as was introduced and approved by the Lok Sabha or we allow that to remain is being watched by the people of India. We need to restore faith in public life and create an effective mechanism to deal with corruption. It is important that we provide for an effective Lokpal legislation.
The Lok Sabha passed a Bill on December 27, 2011. On December 29, 2011 the Rajya Sabha disagreed with it. The majority members were in support of the amendments proposed by the Opposition parties. It was at this stage that the House was adjourned. Subsequently, the Bill was referred to the Select Committee, which has since submitted its report.
The Select Committee was headed by Shri Satyavrat Chaturvedi, a senior Congressman. It functioned predominantly on non-partisan lines and has come out with a large number of recommendations, which were substantially unanimous. However, there are some changes, which have been made by the government to the recommendations of the Select Committee. The issues which were required to be resolved by the Rajya Sabha are mentioned hereunder.
1. The procedure for appointment for Lokpal: The original Bill as approved by the Lok Sabha provided for a Five-member collegium, which would appoint members of the Lokpal. It comprised the Prime Minister, the Speaker of the Lok Sabha, the Leader of Opposition in Lok Sabha, the Chief Justice of India and a Jurist of eminence. Since a Jurist of eminence was appointed by the Government of India this could give the Government a majority in the matter of appointment. The Select Committee has recommended that the Jurist has to be appointed by the other four members through a consensus process.
2. Removal of erring members of Lokpal:The Bill as approved by the Lok Sabha provided for removal of Lokpal by a reference made to the Supreme Court by the President of India, on the aid and advice of the council of ministers. Thus only the Government of India could initiate the process of removal of a member by making a reference to the Supreme Court. Presently, the Select Committee has replaced this procedure and 100 members of Parliament are entitled to petition the Supreme Court asking for removal of a member of the Lokpal. In the original Bill, during pendency before the Supreme Court, the government alone was empowered to suspend an erring Lokpal. This power has now been shifted to the Supreme Court.
3. Jurisdiction of Lokpal to cover NGOs:Clause 14 (h) provided that the jurisdiction of the Lokpal would extend to a large number of private organizations outside the government. The object of the Lokpal was to deal with the officers from the government. However, a ‘revenge Provision’ was introduced against the civil society by providing that any organization, which collects donations from the public would be under the jurisdiction of the Lokpal. Thus, all religious organizations, education organizations, societies, cooperative societies, clubs and associations or any other body doing charitable work which claims funding from the government would also be covered under the Lokpal. This would increase the burden of work on the Lokpal without larger public interest being involved. The Select Committee recommended the deletion of this provision. It recommended that only such private bodies would be covered, which either receives funding from the government or from foreign sources.
The government though its official amendments has sought to deal with this provision by excluding religious organization but allowing the Lokpal to have jurisdiction against any other private organization. There is no rationale in Lokpal having jurisdiction over bodies, which have nothing to do with the government or instrumentality of the state. The BJP is of the opinion that the recommendation of the Select Committee are fair and should not be interfered with.
4. Procedure for Inquiry: The original Bill, as approved by the Lok Sabha, provided for a complicated procedure for inquiry and investigation. It provided that a reference would first be made to the Lokpal, who would conduct preliminary inquiry itself or through the CVC. Thereafter it has to decide whether to refer the matter to the CBI or any other investigative agency or not. At this stage, all documents would be shared with the delinquent. After the completion of the investigation by the CBI or any other investigative agency, the said investigation would come back to the Lokpal and the Lokpal itself would become the prosecuting agency. All experts who appeared before the Select Committee, disagreed with this recommendation. The select committee has therefore recommended a straight forward procedure for investigation. The said provisions now include a preliminary inquiry by the Lokpal, a reference to the investigative agency to investigate the case, filing of the charge sheet or the closure report by the investigative agency. It has further provided for grant of sanction after obtaining opinion of the competent ministry. The power of granting sanction has been vested in the Lokpal. While most of these recommendations have been approved by the government, the government has introduced a new provision by which at the stage of preliminary inquiry, before embarking on preliminary inquiry, the delinquent official would be provided a hearing by the Lokpal. This would render the inquiry or investigation otiose. In cases involving bribery, accumulation of wealth, disproportionate assets, where an official has to be taken by surprise, searched and raided, the provision for grant of an opportunity for hearing before such action can be taken would defeat the purpose of evidence collection. This is an important area of disagreement between me and the changes as proposed by the government. It is important that we go back to the recommendation of the Select Committee. The recommendation of the Select Committee should be accepted.
5. Central Bureau of Investigation: The Select Committee examined in detail various proposals with regard to ensuring professionalism and independence of the CBI. It has made several recommendations in this regard. There would be two separate wings in the CBI viz. the Prosecution Wing and the Investigation Wing. There would be a Director, Prosecution appointed on the advice of the CVC. The CBI, Director would be appointed by the collegium comprising the Prime Minister, the LOP and the CJI. The Director, CBI would be the head of both the wings. The Director, CBI and the Director, Prosecution would have a fixed tenure. The power of superintendence with regard to the CBI in relation to the Lokpal-referred cases would vest in the Lokpal. The panel of advocates representing the CBI would be independent lawyers and would be appointed by the CBI with the consent of Lokpal. Certain amount of financial powers would be vested in the Director, CBI in order to ensure independence of the investigation and incurring of the expenditure necessary for making fair investigation.
However, there is one area of difference between the recommendations of Select Committee and my view. I had proposed that the transfer of the officials investigating cases, referred to by the Lokpal, during the pendency of the investigation, can only take place with the concurrence of the Lokpal. However, the power as it stands today is vested in the government. The government can defeat the purpose of independent investigation by transferring an inconvenient officer. This requires a relook.
6. Lokayuktas in the states: A Lokayukta in the state can only be appointed by a law passed by the state legislature. This is because the subject matter deals with the services of the state. The Select Committee, therefore, rightly provided for a provision, which would provide Lokayukta in the state and for that purpose a model law would be circulated to all the states on the pattern of the central Lokpal Act.
On a joint reading of the recommendations of the Select Committee and the government’s amendments to the same, there are only four areas of disagreement that I have with the proposals under consideration.
1. There cannot be a provision for a religion based reservation in the matter of jurisdiction of Lokpal.
2. Transfer of officers during investigation can only be done with prior approval of the Lokpal and not otherwise.
3. No opportunity of hearing can be given at the stage of preliminary inquiry to a delinquent official since that would defeat the very purpose of the inquiry itself.
4. All NGOs which are neither funded by the government nor by foreign sources should be outside the jurisdiction of the Lokpal.