Column : Janmat versus Jan Lokpal

Written by Sunil Jain | Updated: Apr 9 2011, 07:10am hrs
If the government is being hauled over the coals and doesnt have a clue as to how to respond to the growing support for Anna Hazares fast-unto-death if his version of the Jan Lokpal Bill is not accepted, its for a good reason. The Bill, various versions of which are floating around on the Internet, is hugely flawed and virtually seeks to decide how the government will behave. But if the lakhs who are netting (I suppose thats what you would call thronging on the Internet) to support Hazare are anything to go by, the reason is simple: a vocal set of people are just fed up with the kind of corruption thats going on, and the governments attempts to cover up, theyre willing to accept anything.

In the case of the ongoing 2G scam, as has been well-documented, the government did its best to stall the investigation; when the Supreme Court forced the CBI to act, you got a very weak chargesheet; and to top it all, the government is now trying to stall the appointment of a well-regarded public prosecutor in the case. Indeed, as Anna Hazare and some of those around him argued, the composition of the Group of Ministers (GoM) tasked with the job of changing laws to eliminate corruption was itself a bit of a joke. Apart from Sharad Pawar, who has since quit the GoM, it has Kapil Sibal, who cant see a R1,76,000 crore scam, and MK Alagiri, a member of the DMK that has been implicated in the scam in so many ways.

Its not as if the Jan Lokpal Bill wont help reduce corruption, its the other problems it will cause. The ongoing 2G scam investigations and case is a good example to illustrate all the points.

To begin with, had the Jan Lokpal Bill been a law, the Raja scam may have ended much faster than it has. Section 18 (vi) of the Bill says that if during the course of investigation or enquiry the Lokpal feels that the continuance of a public servant (which includes ministers and even judges) in that position could adversely affect the course of investigations or enquiry the Lokpal may issue appropriate recommendations including transfer of that public servant from that position ... The government has 15 days to implement the order or the Lokpal can go to the high court to implement it. In the Raja case, that means a Lokpal could have had Raja removed after his scam was unearthed on January 10, 2008since the actual licences were issued some months later, the scam could have even been nipped in the bud!

Lets assume the Lokpal didnt act so fast, and Raja had issued the licences, what then Go to the section that deals with the functions of the Lokpal. Section 8(2)(d) is quite clear after investigation, the Lokpal can order cancellation or modification of a licence or lease or permission or contract or agreement, which is the subject matter of investigation. And 8(2)(e) says the Jan Lokpal can blacklist the concerned firm or company or contractor or any other entity involved in that act of corruption.

Section 8(6) and (7) add to this and do away with the powers of the government to delay prosecution of officials by refusing to give permission to the investigating authoritiesas those following such cases will tell you, withholding prosecution sanction is not a rare occurrence.

All of this is great news for people whove been trying to stop Raja from perpetuating his scam; whove been trying to get the government to summarily cancel the licences. But pause a while and think of the consequences of the Jan Lokpals actions.

India does have something called the judicial system, and the Jan Lokpal doesnt seek to supplant that, at least not yet. So lets say someone petitions the Lokpal on the Raja scam and, after holding hearings in the Lokpal courts and getting evidence through issuing search warrants (the Lokpal will also be a deemed police officer), the Lokpal thinks this is a fit case to cancel the licence. So the Lokpal cancels the licence, and the affected party will be fighting to restore it in another court! The Lokpal can order that private firms whove benefited from corruption can be fined five times the loss caused (Section 19A)since the CAG estimates R1,02,498 crore was lost by giving 122 licences, the penalty can be R5,12,490 crore! What happens if the civil courts have something different to say

There are several other problems as well. The Jan Lokpal Bill wants the Lokpal to be able to look into complaints about judges as well; but isn't this the subject of the Judicial Accountability Bill And how does the Lokpal inquire into complaints about judges when the Supreme Court presides over the process to remove the Lokpal and its members!

Section 18(vi), which allows the Lokpal to suspend a public servant puts the Lokpal in direct conflict with the democratically government which, whether you like it or not, has the ultimate right to decide who serves where. The same section, by the way, also allows the

Lokpal to interfere with the work the courts do in the event there is a complaint about a judge.

Since the definition of a public servant includes PSUs, thats another worry for PSUs that are already slaving under the burden of too many monitors!

None of this is to say the current system is working wellif it was, you wouldnt have the kind of scams you have. But imperfect as it is, the system has several checks and balances, and it does work. A new system that seeks to give overriding powers to one arm (Section 35 of the Jan Lokpal Bill proudly boasts This Act shall override the provisions of all other laws) is asking for serious trouble.