Memorandum to the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice Incorporating Views and Suggestions on the Lokpal Bill and Proposals for Inclusion in the Lokpal Bill from Indian Social Institute, Delhi In Consultation with Eminent and Concerned Citizens
The Indian Social Institute organized a one-day Consultation on the theme of Combating Corruption: Instrumentality of Lokpal Bill on Tuesday, September 13, 2011. Senior civil society members from all walks of life discussed and debated the various provisions of the existing Lokpal bill drafts and identified certain missing links with concrete suggestions. The whole day exercise has come out with certain proposals to be considered by the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice. They are given below:
Being deeply concerned about the extent of corruption at all levels, and considering the attempt to enact a Lokpal bill at various times for the last 42 years and not acting on it seriously,
Observing that the people at large are losing patience and are agitated on the functional failure of the system in eradicating corruption from public life, which is especially affecting the marginalised and poor people the most,
Considering that corruption should be seen in a broader dimension than merely in its financial implications,
Seeing existence of sinister ways of discrimination against the marginalised people especially in social arena and also in centers of excellence,
Observing that “misconduct” (in terms of (i) injustice, malpractices, exclusion practices and improper discrimination both in the public and private sectors done especially to the marginalised people – SCs, STs, BCs — who include BCs of religious minorities —, Minorities, Women, Children and failure to implement laws, programmes and schemes for the benefit of the above marginalised categories and (ii) Corporate frauds including misappropriation of natural resources, issues of corporate social accountability, of black money, tax evasion) should be included in a meaningful definition of corruption and the marginalized categories of people should have due representation in the Lokpal and all its various structures,
Knowing very well that a law for elimination of corruption is essential but in order to remove completely all forms of corrupt practices from all places, it is necessary also to adequately address the political economy and its structure underlying at the roots of corruption; and also introduce criteria of personal and social integrity in the recruitment / appointment of individuals to the highest services and judiciary and selection of candidates for elections by political parties and introduction of new systems which will ensure fulfillment of this criteria like the creation of an All India Judiciary services under Article 312 and further, that moral and cultural aspects for promoting good values of integrity, and a culture of good governance, and social responsibility and Constitutional values of Social Equality, that is, equality among all social classes and Social Justice and Social Dignity, ought to be cultivated by various means including Human Rights Education, and,
Having the conviction that a democratic approach implies democratic process of governance, placement of accountability mechanisms in governance, structural mechanisms to maintain transparency in transactions at all levels of governance,
We hope and pray that these proposals given below will be seriously looked into when finalizing the Bill to be enacted in the Parliament, and a “strong” Lokpal Bill will be the outcome of parliament deliberations. These proposals are not exhaustive, but we find them very important, especially in the Indian context. We have the advantage of having the various versions of the Bill and have drawn upon them to the extent conducive to our thinking.
I THE LOKPAL
(1) Composition of Lokpal
Chairperson and 12members (at least 4 judicial members or members with legal background). Due representation should be given to the marginalized groups (SCs, STs, BCs, Minorities, Women, who are maximum affected by corruption). The composition could be: SCs – 2; ST – 1; BC – 3 (of whom one should be BC belonging to Religious Minorities).
Women – 4: who may belong to any of these categories or to the non-SC, non-ST, non-BC category.
(2) Tenure : Five years or till s/he is 70 years.
(3) Selection & Manner of Appointment : To be appointed by the President of India on the recommendation of the Selection Committee.
(4) Qualification: Only citizens of India, and above 55 years and below 70 yrs of age, can be selected to the Lokpal. All should have “impeccable and unimpeachable integrity” and internal freedom from ‘unconstitutional caste-bias’ and the persons of eminence in different fields including Social Justice focusing on SCs, STs, BCs including BCs of religious minorities, women, children and labourers, especially labourers in the unorganized sector.
The Chairperson shall be a person of high integrity and competence.
The 4 judicial members or members with legal background selected has to be either a CJ of the High Court or a judge of the Supreme Court or lawyers who have, in their professional career, always or mostly taken up cases in favour of the rights of SCs, STs, BCs, Women, labourers, and minorities.
Once appointed to be a member of Lokpal s/he cannot be an MP or MLA or be associated with any political party, business or practice a profession. The Chairperson ought to have proven knowledge of law, and who have positively earned a reputation of sensitivity to the socially marginalized sections of people. The upper limit of the wealth of the persons to be selected should be specified.
(5) Selection Committee: There should be a broad based selection committee. A larger size of the committee (say 13) could be envisaged. The marginalised sections of the society should be duly represented as mentioned at 1 (1) above. To facilitate this, the pool from which the Selection Committee should be formed may consist of the PM, the Speaker of the Lok Sabha, Deputy Chairman of the Planning Commission, the leaders of the Opposition in both Houses, a judge of the supreme court, a Chief Justice of a High Court, Chief Election Commissioner, an eminent Jurist, the Chairpersons of the Commissions for SCs, STs, BCs, Minorities, Safai Karmacharis and Women and Human Rights.
If there is a Search Committee, the Selection Committee could appoint members to be in the Search Committee. Care should be taken that adequate representation of the marginalised groups ought to be respected as in I (1) above. On presentation of a panel of names, the Selection Committee can propose the names to the President for making the appointment. The discretion of the President ought to be respected.
(6) Removal of Lokpal: The members of the Lokpal may be removed by an order of the President after an inquiry by and on the recommendation of the Supreme Court. On the breach of any of the qualifications mentioned, and/or upon a complaint made to the CJI by an aggrieved party, the Supreme Court may form a committee to inquire into the complaint. The President may also initiate prosecution of the Lokpal.
II Jurisdiction of the Lokpal
(1) Prime Minister: The Prime Minister should be included in the Lokpal Bill with certain safeguards. Safeguards should be a two stage process. Investigation by the Lokpal after the approval from full bench of the Supreme Court. No politician should be involved in the approval process of investigation against the Prime Minister.
(2) Members of the Parliament: Lokpal should have jurisdiction over the Members of Parliament. Steps should be taken to seek the amendment of Article 105 of the Constitution of India to move beyond the immunity of prosecution of Members of Parliament. Whenever Lokpal takes a decision, after having the matter investigated, that the legislator has to be prosecuted for his or her misdemeanor, s/he should be deemed to be ineligible to continue as legislator till proved innocent.
(3) Judiciary: Judiciary should be kept out of Lokpal’s purview. Inclusion of judiciary along with legislature and the executive, under the same statutory oversight body, violates the fundamentals of democratic constitutionalism. It will lead to concentration of powers over all three pillars of constitution and upset the principle of division of powers.
To check corruption in judiciary, a strong Judicial Accountability Legislation is needed, with a Judicial Lokpal, ensuring thereby full judicial independence with necessary accountability and transparency. Judicial accountability Legislation should be legislated concurrently with the Lokpal legislation. The Judicial Lokpal or Judicial Commission or by whatever other name it is known should be so structured that is no less powerful and effective than the Lokpal and should have representation for the marginalized social categories as mentioned at I (1) above.
Corporates, Media : Corporate frauds and discriminatory practices in corporates and media should also be within the purview of the Lokpal.
III Remuneration to various members: No member of the Lokpal (also the Search Committee or Selection Committee) should receive a salary or honorarium; but should be provided all functional facilities including travelling allowances. The Chairperson and Members of the Lokpal shall have the rank and status of Chief Justice of India and that of the Judges of the Supreme Court respectively. The allowances should be so fixed as only to meet the functional expenses and should not be constituting a source of Income.
IV Grievance Redress: There should be a mechanism of grievance redress. It could take the form of a Citizen’s Charter and a separate legislation. In addition to general citizens’ charter, there should be additional citizens’ charters pertaining to specificities of SCs, STs, BCs including BC minorities, women and children.
V Lokayukta: Provisions similar to Lokpal should be made for state level Lokayuktas and incorporated in the Bill.
VI Punishments: For any proved act of corruption the penalty shall be liable to a fine of Rs. 25,000 to 5 lakhs and/or imprisonment and confiscation of properties. Higher punishments should be given if rank of the accused is higher. If convicted a business entity should be blacklisted from future contracts.
VII False, Frivolous & Vexatious Complaints: The Lokpal will decide whether a complaint is frivolous or vexatious or false. If a person is found guilty of making false and frivolous or vexatious complaints shall be penalized with two to five years of imprisonment and/or a fine of Rs. 25,000 to one lakh. Distinctions should be made between a complaint which could not be proved on the one hand and a complaint which is frivolous or vexatious or false on the other.
VIII Whistleblower Protection: Lokpal will be required and should be empowered to provide protection to whistleblowers, witnesses and victims of corruption, with special measures for whistle-blowers working for the Constitutional statutory rights of the marginalized social categories since they are exposed to greater danger. If needed a separate law could be enacted.
IX Prevention of Witch-hunting: There should be provisions to prevent misuse of the Lokpal machinery to target the following vulnerable categories of public servants:
(a) Honest public servants who try to implement policies and measures for the benefit of Constitutionally specified weaker sections of society and resist pressures of corporates and other powerful entities and individuals to provide them improper advantages
(b) Public servants belonging to marginalized categories especially SCs and STs.
X Strengthening of Parliamentary Democracy as established by the Constitution of India: This is essential for the country. For this purpose, the intitiative required from the Government inter alia is that Government should be pro-active in promptly enacting legislations required for the marginalized social categories mentioned herein and in ensuring proper and effective implementation of the legislations, policies, programmes and schemes which exist and which are introduced in future for the benefit of these marginalized social categories and for labourers, especially those in unorganized sector and the poor.
Along with these, in addition to the Lokpal Bill and other related Bills, the Government also need to consider seriously the points contained in the Preamble of this Memorandum, so that democratic governance is experienced by the people as an effective, efficient and clean instrument of social transformation as required by the Constitution of India
Dr. Christopher Lakra – Executive Director Prof. John Chathanatt – Research Director
17th International Indigenous Peoples’ Day at the Indian Social Institute
August 9, 2011
A seminar-cum-celebration was organized at the Indian Social Institute on the occasion of 17th International Indigenous Peoples’ Day on August 9, 2011 in collaboration with CBCI Committee for Tribal Affairs, Ho Disum, Tribal Support Group and Indian Social Institute Staff Forum. The theme of the seminar was “Changing Face of the Challenges before the Tribes in India”. Shri A. Kachhap, Deputy Adviser, Planning Commission, Government of India, was the chief guest.
The main objectives of the seminar-cum-celebration were: firstly, a gathering of the committed intellectuals, activists, social workers and others working and reflecting on the issues and problems of the indigenous peoples in India; secondly, highlighting the changing face of the issues and problems pertaining to the Adivasis in India; and thirdly, suggestions and recommendations for some alternatives for a holistic development of the tribes in India in the context of globalization.
These objectives were fulfilled to some extent. Much more needs to be done in terms of research, advocacy, training, awareness building, mobilization and sensitization of tribals as well as of government officials and other stakeholders.