Regd. No. : MAH 396/2010 (N)
Inspired & Guided by : AIMBSCS - Constitutional Rights & Legal Aid Wing.
C/o. Prabha G. Bhasme, Sai Apartment, Flat No. T-1, Banerjee Layout,
Post - Bhagwan Nagar, Nagpur - 440 027 e-mail : pcdhrindia@gmail.com
Post - Bhagwan Nagar, Nagpur - 440 027 e-mail : pcdhrindia@gmail.com
Rep. No. /PCDHR/OSCOP/1 Dt. 29/08/2011CE
To,
The Chairman,
Standing Committee on Personal, Grievances and Law & Justice,
Parliament of India.
Sub. :- Stating Opinion on record, on the proposed Lokpal Bills, 2011 under rule 331 of the 'Rules of Procedure and Conduct of Business in Loksabha', being referred by the House of People to the 'Standing Committee' of the Parliament of India.
Esteemed Sir,
We are the Citizens of India. We will like to state our opinion on record before this Hon'ble Standing Committee constituted under rule 331, on behalf of the 100 crore people of SCs, STs, OBCs, Religious Minorities and Denotified Tribes & Nomadic (Semi-Nomadic) Tribes (DT/NTs) of India. We have full faith in the 'Constitution of India' and uphold it as the 'cornerstone of our Nation - Bharat i.e. India'. Constitution is Supreme & Paramount law of the land. We also have full faith in the 3 pillars created by our Constitution viz. Legislature (House of People & Council of States), Executive & Judiciary (Supreme Court of India & High Courts). We think that the Parliamentary Democracy (Part V, Chapter II & Part XI, Chapter I; Part XII, Chapter I; Part XX of our Constitution) must not be disturbed. The "sovereignty" of we the People of India has to be exercised through our Parliament (& State Legislatures) and not otherwise by any 'nominated' institution/body/authority like the present Lokpal or JanLokpal that is under consideration before the standing committee.
This responsibility of 'We the People of India' is with 'solemnly resolve' to constitute India in a 'Sovereign, Socialist, Secular, Democratic, Republic' and to secure to all its citizens Justice (social, economic and political); Liberty (of thought, expression, belief, faith and worship); Equality (of status and of opportunity); and Fraternity (assuring the dignity of the individual and the unity and integrity of the Nation). Let the above proclamation of The Constitution of India declared in the Preamble be uphold in framing any law or policies for the country. We firmly stand by the 'Preamble' and the various provisions of our Constitution and would state 'not' to enact any 'law' which is contrary to the above Principles & Provisions, in letter & spirit. Had our Constitution been implemented in its true letter & spirit in the last 60 yrs., social & economic inequalities would have been abolished, with the creation of a just 'social order' and fraternity would have been developed creating an 'ideal society' where corruption would have been eradicated. The non-implementation of Constitution in its true letter & spirit; particularly the Preamble read with Directive Principles (Part IV) & Fundamental Rights (Part III) has made corruption a problem. We strongly think that corruption in India is not that a 'systemic problem' but is a by product of 'caste economy' & 'caste capitalism' which denies equal opportunity to all and maintains privileges & proceeds for a few at the cost of indignity & toil of many.
To abolish corruption therefore what is primarily required is establishing 'social & economic justice'. Any law or institution like 'Lokpal' is not the correct remedy for it. This 'social & economic justice' in pursuance with DPs & FRs read with Preamble can be implemented only by the Constitutional provisions and the trinity institutions of legislature, executive & judiciary is a 'golden premise' which must not be overlooked for our peril. Let us not pay more importance to the 'Lokpal' but on the implementation of the Constitution and preserving & renewing of our 3 pillars of Democracy.
At the outset itself we state that any 'nominated' institution/authority/body/agency cannot, and "must not" be allowed to superceed the 'elected' Houses of Parliament or State Legislatures. This will be 'death knell' to the sovereignty of we the People of India proclaimed in the Preamble. It will make our Parliament, Executive and Judiciary 'sub-ordinate & accountable' to these nominated institutions/authorities/agencies and lead to a non-Democratic, anti-Democratic institution of 'autocracy' in the form of 'Lokpal' who will be a 'monster Manu'. Our Constitution does not permits any anti-constitutional premise of creating 'supra-constitutional' nominated bodies/institutions/agencies over & above our Parliament, Government & Judiciary in the name of independence. "Independence cannot be without accountability to the Constitution & its Institutions". This is very clear from Part V [Chapter I - The Executive, Chapter II Parliament, Chapter IV The Union Judiciary]; Part VI [Chapter II Executive, Chapter II The State Legislature, Chapter V The High Courts In The States]; Part XI (Federalism), [Chapter I Legislative Relations, Chapter II Administrative Relations, Part XII; Part XIV, Service Under The Union And The States]; Part XV Elections; Part XVI - Special Provisions Relating To Certain Classes; Part XVII official language; Part XVIII Emergency Provisions; Part XIV - Miscellaneous Provisions; Part XX - Amendment of The Constitution; the Seventh Schedule (List I, II, III) and other Schedules.
Having cited the above Principles & Provisions of our Constitution which rests upon the 'separation of powers' between the Legislature, Executive & Judiciary; the 'checks & balances', with accountability to 'we the People of India' by means of Parliamentary Democracy, Federalism, and also Judicial review; we now state on record regarding Lokpal Bills referred to the Standing Committee by the House of People on 27th Aug. 2011 and also the Lokpal Bill of the Government.
The following principles, concepts & provisions must be the base of proposed anti-corruption agency (ombudsman) i.e. Lokpal.
1. Constitutional Framework, Appointment & Removal of Lokpal : Any agency being contemplated to fight corruption in India must be "within" our Constitutional framework and should not enable it to superceed Parliament which is supreme, sovereign institution of 'We the People'. It should also "not" encroach upon Judiciaries independence as stated in JanLokpal Bill, and haunt our MPs, MLAs and Ministers round the year. The powers, privileges and immunities of Parliament and the members and committees U/A 105 shall be maintained for exercising sovereignty of the People. We do not want that our representatives be made 'bondsmen' of any agency/institution and are not in a position to freely express their views.
To enable this the Lokpals office must be 'appointed by 'Selection Committee' constituting of the PM, Leader of Opposition of both Houses, Union Law Minister, Union Home Minister, CJI & senior most Judge of Supreme Court, Speaker of House of the People, Chairmans of SC/ST/OBC Commission. PM must be the Chairman of this 'Committee'. The inclusion of Chairman of SC, ST & OBC Commission would extend representation to these People and fulfil the objectives of social, economic & political justice. It would also be prudent to take the services of these Constitutional Commissions in making the Janlokpal accountable and avoid 'caste discrimination' which is not permitted by our Constitution [read Preamble, Art. 14, 15, 16, 17, 19 & 21]. The UN Convention to Abolish Racial Discrimination, 1966 to which Indian State has acceded to also disallows 'caste discrimination' which is a 'racial discrimination' within the meaning of Human Rights Law.
A 'Screening Committee/Recommending Committee' may constitute of Chairman of Human Rights Commission & Minorities Commission, 3 People with legal knowledge and expertise of 'multiple dimensions' of corruption, Ex-Lokpal, Chairman of Equality Opportunities Commission [which must be created soon as per Sacchar Committees Report], and 4 Peoples representatives from various walks of life (they can be both elected and non-elected).
The 'Screeing Committee/Recommending Committee' can finalise a 'list of candidates' 5 times of that as their are vacancies to the Lokpal and recommend it to the PM within a stipulated time. The 'Selection Committee' shall have the "discretion" to finalise the names and forward it to the President of India for appointments. In this way the appointments of Chairperson and Members of Lokpal (total 9 only) may be made. All the People of India shall be free to send their nominations to this Committee. Their should be no bar that only such People be nominated with the help of 'civil society', which is nowhere in existence in India due to caste discrimination.
The 'removal' of the Lokpals must be made by the President upon the 'inquiry' made by Committee consisting of the CJI & other 2 Judges of SCI. The Lokpal must hold office only for 4 yrs (preferable 3 yrs.) and be ineligible to hold other public offices further.
The above procedure of appointment & removal of Lokpal & its members would enable its 'independence with accountability' and avoid autocracy of the Lokpal. The Lokpals appointment, removal, powers & functions are the "most crucial" aspects which will determine its accountability to the Constitution & its institutions. We must be very careful on this aspect to avoid any inconsistency.
Thus we totally disagree by the method of appointment & removal of Lokpal (Chairpersons & members) as stated in all the present bills which require considerable improvement.
2. The Jurisdiction : All the Ministers, PM (with certain caveats for National Security, Foreign Affairs & Public Order) along with 'public servants' of Gr. 'A' must be under the office Lokpal.
All other 'public servants' [Gr. B to D] must be under 'CVC' which can be strengthened with investigative powers & a wing with prosecution powers.
2(a). MP's (& MLAs) must be kept out of the purview of Lokpal. So must be Judges of Supreme Court & High Courts. The Judiciary must be made accountable to a 'National Judicial Commission' along with Peoples Representatives as done in the Constitution of South Africa (Sec. 178, 174); Rawanda (Art. 157); Poland (Art. 179, 187). All India Judicial Services (Art. 312) must be started immediately to make Judiciary more representative & responsible. Reservation must be implemented in it. The strength of Courts & Judges along with other infrastructure must also be increased.
The privileges of MPs (& MLA) guaranteed by the Constitution (Art. 105, 106 & 194, 195) must be preserved. They should be regulated by the rules of House.
2(b). Also 'outside' of the purview of Lokpal must be the President the Vice-President, Speaker & Deputy Speaker of House of the People, The Deputy Chairman of the Council of States, The CAG, Attorney General of India and Chairmans of SC, ST, OBC Commissions and UPSC, the CEC and any authority appointed under the Constitution of India. We therefore disagree with the definition of 'public authority' and 'public servant' (10 & 11) of Janlokpal Bill.
3. Defining & Including All Types of Corruption : The definition of 'corruption' needs to be broadened to encompass corruption in Government & Public Sector, Corporate Sector, Businesses, Media, Charitable & Religious Institutions and NGOs. All such religious institutions, NGO's, companies being funded, allotted land & other facilities, subsidised, loaned, getting tax concessions by the Central Govt. or State Govt. must be brought under the ambit of 'corruption'. Their responsible functionaries must be brought under the ambit of Lokpal/Lokayuta or any Independent Body, with the same punitive measures upholding Equality Principle (Art. 14), of the Constitution. This will make not only the government but the corporate sector and civil society domain, corruption free. 'Institutional corruptions' must also be dealt with which are done in an organised way by official policies like usurping land & forests of Adivasis, transfer of budgetary funds of SC, STs etc. Their cannot be special privileges to the corporates, businesses, media & NGOs as far as corruption is concerned. Let us not allow any unjust attack upon our 'State' by market & media forces.
4. A 'Separate Authority' must be created for dealing corruption in Private & Corporate Sector and religious & charitable denominations with the same punitive measures under Lokpal/Lokayukta to uphold Equality principle (Art. 14). The UN Convention Against Corruption, 2003 to which Indian State has acceded to, in its Articles 12, 21 & 22 asks the 'State Parties' to do.
5. Powers And Functions : The Lokpal "must not" be vested with enormous & draconian powers of investigation, police authority; powers of confiscation, recovery & auction; suo motto injuries, to raid any place & person without courts permission; be an open court, quasi judicial authority and also have powers of contempt simultaneously. Powers of consultation on the procedure to be followed in selection of Judges of trial courts, which is at present a jurisdiction of the Govt. and High Court U/A 233 of the Constitution. To issue stay orders or interim orders etc.
Sec. 19 of POCA, 1989 must continue to extend safeguard to 'public servants' for actions acted in 'good faith.' Similarly phone tappings or interceptions of emails, SMS shall be done only with the permission of Home Secretary to safeguard privacy of citizens.
With this we disagree with the Sec. 2(4), 8, 9, 12, 13, 13B, 13C, 16, 18 (i) (iv-v) (Vii-Viii), 19, 28A of Jan Lokpal. Such 'draconian powers' vested in one 'super agency' will make our Democracy an autocratic 'Police State' and violate Fundamental & Human Rights of People that our Constitution does not permits. The powers of investigation, prosecution and judicial powers must be separated and placed in different agencies with adequate 'checks & balances'. A 'prosecution agency cannot be a punishing agency'. It is a violation of principles of Justice.
The Lokpal must be given only 'quasi-judicial powers' and powers of 'investigation'. The powers to prosecute & adjudicate must remain separates as they are today.
6. Protection To All : As their is protections for the 'whistle blowers' & complaints'. Their shall be protection to the 'public officials & public servants' also. In case of false & malafide complaints the complainants shall be liable for imprisonment upto 5 yrs. and a fine upto Rs. 2,00,000/- or both. This is necessary for Equality before Law (Art. 14). The genuineness of complaints & complainants must be verified thoroughly before registering a case by the Lokpal.
Their should also be a provision of 'compensation' to the 'public officials & public servants' or any 'other person' if they are acquitted. Along with the service benefits they shall be compensated in monetary terms and dignity, for 'miscarriage of justice'. This is necessary to protect the civil and political rights of the people.
False inquiries & prosecution by the officers of Lokpal must also be punishable in service matters and punitive measures with an imprisonment upto 5 yrs and five or both for 'miscarriage of justice'.
7. Just Law & Just Society : Their should be a 'time limit' for the conduct of investigation, filling of chargesheet after getting sanction and also the completion of trial in the 'sessions court', High Court and Supreme Court must not be more than 7 yrs. The decision of the case upto sessions court must be 2 yrs. At High Court level 3 yrs., and Supreme Court another 3 yrs. Let us understand that "Justice delayed in Justice denied", and a positively delayed justice is injustice to all concerned. Any 'accused/convicts' should not be subjected to 'multiple level of punishment' violative of Art. 20 & 21 of our Constitution. Suspension, confiscation of property, indefinite trials upto decades, denying them promotions debarring them from holding offices of responsibility, debarring them from elections, and imprisonment & fine tantamounts to 'unjust laws' violative of Art. 21 (right to life). International Covenant on Civil and Political Rights, 1966 (Optional Protocol To the International Convention of Civil and Political Rights 1966) to which Indian State is a signatory does not permits this.
The punishment to the 'convicts' should not exceed beyond 7 yrs along with fine as it is under POCA, 1988. In addition to these, provisions of 'mercy trials' with proportionate amount of fine to the tune of corruption, or loss to public money can also be though off to reduce burden of trials and prisons. Apart from Lokpal/Lokayukt and other agencies to fight corruption, we want to state that 'laws & systems' are welcome but unless a 'just society' without 'caste discrimination' is established by realizing 'social & economic justice' as envisaged by our Constitution [Preamble & Directive Principles of State Policy] corruption & exploitation wont end. Let the Constitution be implemented in its true 'letter & spirit' for this.
Thus we totally disagree & oppose sec 19, 19A of the JanLokpal Bill, 2011.
8. Reservations for SC, ST, OBCs : Their must be reservation in all the 'posts & vacancies' of Lokpal & Lokayuktas for SC/ST/OBCs in accordance with Art. 15(4) (5), 16(4) (5) & 335 of the Constitution of India.
The 9 members of Lokpal along with its Chairman must be representative, and reservation should also be implemented for this. Representation of DT/NTs and Religious Minorities must also be their in this body. The 'annual report' of Lokpal to be tabled in the Parliament must contain facts & figures about the representation of SC, ST, OBCs. It must also contain the figures of cases against these category of Peoples and also for DT/NT and Religious Minorities, so as to avoid any discrimination and persecution of these people based on caste & religion.
9. Lokayukta To Be Formed By States : The Lokayukta must be formed in each State & UTs. But the states must be allowed to legislate upon this in accordance with the State List Art. 246(3) [and if required Concurrent List Art. 246 (2)]. The Parliament will reserve its right to legislate upon any matter of Central List Art. 246 (1) and Concurrent List Art. 246 (2) or Art. 246 (4).
This will strengthen our Federal Polity further.
12. Benches of Supreme Court & High Courts Be Formed To Make Justice Accessible To All : The Benches of Supreme Court (Art. 130) must be extended to South, East, West and Central India; at Chennai/Bangalore, Calcutta, Mumbai & Nagpur respectively. This would enable people of the country to get 'justice' in an 'accessible & affordable' manner and also end geographical alienation. The number of Judges are also required to be increased substantially along with reservation for SC, ST & OBCs. These provisions exist in the Constitution of South Africa (Sec. 174). Even in Countries like USA & England the racial composition is taken into account in the judiciary. Our Constitution also envisages this, and it is high time that we implemented.
Similarly their must be at least 2 or 3 benches of High Courts in a State of big geographical & population size.
11. The expenses of the office Lokpal/Lokayukta shall be charged upon the Consolidated Fund of India/State respectively.
Any autonomous, self funded scheme should 'not' be allowed.
Also any reward schemes/financial awards for encouraging complaints must 'not' be provided in the Act as it would lead to 'sleaz' and 'moral turpitude' for monetary benefits by the complainants, whistle blowers rather than 'honesty' & 'integrity'; the two values upon which we want to buildup a corruption free society. We shall not create a situation in our society where every citizen would be policing others.
12. Grievance Redressal Mechanism must be separated from Lokpal/Lokayuktas and be modelled on RTI Act, 2005.
13. In view of the United Nations Convention Against Corruption, 2003 to which Indian State has ratified & acceded to, steps must be taken for International Cooperation (Chapter IV); Asset Recovery (Chapter V) etc., keeping in view our Constitutional & Legal Principles. The Convention "does not" compels State Parties to frame laws outside their Constitutional & Legal Provisions [see Art. 6(2), 11(1), 20, 30(2), 44(8), 10 (12), 46(4), 55, 65(1)] as misjudged by the bill of JayPrakash Narayan of Loksatta.
Laws of the country must be adequately repealed and policies be framed to implement International Covenant on Civil and Political Rights 1966, National Covenant on Economic, Social and Cultural Rights, 1966 and UN convention to Abolish Racial Discrimination, 1966.
These covenants & conventions would enable the realization of 'Social & Economic Justice' so necessary to 'root' out corruption in our country.
14. Considering Hyderabad - Secundrabad/Nagpur for 2nd Capital of India : Lastly we take this opportunity to convey our feelings to the Parliament for making either Hyderabad-Secundrabad or Nagpur as the 2nd capital of India, for 2 vital reasons :
1. Ending the social & geographical alienation between People of South & North India. Security of our Nation, considering the geographical proximity of Delhi to bordering Countries which are not so friendly with us. Also the extremes of climate in Delhi which cause various inconveniences & loss of precious time of the country.
2. The recent 'stir' and 'unfair', 'coercive' 'mentally violent' [if physically not] by Dh. Anna Hazare & his colleagues taking the country, government to standstill, clearly proved that any huge 'mass mobilization' supported by unfair coverage & lies of media campaign [its high time that we frame a law to regulate media in accordance with Art. 19(2)] can demean & debase the supremacy of Parliament, Government (and even Judiciary).
To avoid any such treat to India's Constitutional Institutions & Democracy in the days to come, which may have far reaching consequences for our nation; it is high time that we think to make a 2nd Capital and Hyderabad-Secundrabad or Nagpur can serve that purpose for the reasons stated above.
We hope that the 'Standing Committee' of the Parliament abiding by 'Constitutional Morality' as expected by the Constitution of India and emphasised by the 'Principal Architect of Our Constitution', 'Father of Constitutional India' - Dr. B. R. Ambedkar'; come out with a 'bill' considering our opinions as stated above.
We reserve our right to further state our opinions; written, or in person to this Hon'ble Standing Committee, through our choosen representatives.
Please acknowledge this Representation at the earliest.
With Regards !
Candidly
Sd/- Sd/-
(Usha Balwant Meshram) (Shyam Mangroo Dongre)
President, PCDHR Secretary, PCDHR
Sd/-
(Mohan Dhansing Chavhan)
Joint Secretary, PCDHR
Copy To,
Speaker, House of People (Loksabha), India
Deputy Chairman, Council of States (Rajyasabha), India
Note : Copy by registered AD follows.
