Wednesday, December 21, 2011

Cabinet clears Lokpal draft; Anna, opposition reject it (ToI)

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The Cabinet finally cleared the Lokpal and Lokayukta bill on Tuesday evening, but their key formulations were promptly slammed by both Team Anna and the opposition, setting the stage for a continuing confrontation within and outside Parliament.

Although government put Group C&D categories of government employees under Lokpal's purview, civil society activists screamed foul over lack of investigation powers for the anti-corruption mechanism. Retention of government's administrative control over the Central Bureau of Investigation -- power to decide transfers and postings within the organization -- is another major bone of contention with the activists and main opposition BJP.

Both are also cut up with the government over the composition of selection panel for Lokpal, saying that it was dominated by government's nominees.

The proposal to split CBI's investigative and prosecution wings and place the latter under the Lokpal has not found favour, thus helping both CBI and CVC survive attempts to render them Lokpal adjuncts. According to the draft bills, CBI will report to the Lokpal only with regard to cases referred to it by the anti-corruption ombudsman. Lokpal will have a greater jurisdiction over CVC, but the latter will not be hamstrung from taking up cases on its own and referring those to the CBI.

The government, however, agreed to end its monopoly on appointing the CBI chief and has agreed to a selection committee comprising the prime minister, leader of opposition and chief justice of India or one of his nominees.

Also, Lokpal can initiate a preliminary inquiry in a case of alleged graft.

The Cabinet shed its previous reservations over placing the PM within the Lokpal's ambit although the bill excludes inquiries in matters relating to areas like national security and foreign policy, space and atomic energy. Three-fourths of the Lokpal members will have to okay an inquiry against the PM, while the proceedings will be held in-camera. Here again, Team Anna differs with the draft, calling for the law to cover the PM unconditionally.

Given Team Anna and the opposition's rejection of important aspects of the draft, there is a concern in government that the Centre will have to face both the Hazare agitation, the hostility of opposition groups and the resentment of all levels of government employees who are now covered by the bill.

The bill states the Lokpal will be a 9-member body, including the chairperson and it will have a 50% reservation for OBCs, SCs, STs and minorities. There will be a quota in the search committee as well that will make recommendations to a 5-person selection panel comprising PM, leader of opposition in Lok Sabha, Speaker of Lok Sabha, Chief Justice of India or a nominee and a legal expert nominated by President.

BJP immediately rejected the composition, saying it is loaded 3:2 in favour of the government with independent members being outnumbered.

The Cabinet also cleared a Constitution Amendment Bill designed to fulfill Congress leader Rahul Gandhi's desire for the Lokpal to be given constitutional status. There are indications that while this bill will be introduced in the current session, it will be referred to a standing committee of Parliament.

In a clear departure from practice, the Cabinet note on the bill was not circulated in advance and ministers - barring those involved in the drafting process - got to see the proposed law only after reaching the meeting.

With regard to government employees, all categories including group C and D, will be subject to the Lokpal's jurisdiction. With regard to A and B category officials, the CVC has to report to the Lokpal that will mean mandatory filing of preliminary enquiries (PEs) and reporting status of investigations Lokpal. Under the bill's provisions, CVC cannot close investigations against officers belonging to the two senior categories.

With regard to Group C and D, Lokpal can ask CVC to investigate cases. It will be empowered to review these cases. However, CVC can investigate cases against C&D on its own as well. It can also refer the cases to CBI on its own.

The bill requires CVC to report the status of its investigations after 60 days and submit a report every quarter.

The Lokpal will also have a wing to conduct preliminary inquiries -- that is to sort through grievances -- and a prosecution department.

Civil society is far from satisfied as it argues that Lokpal without an investigative mechanism of its own is a toothless body, not unlike others than can make recommendation and cannot prosecute or investigate. Team Anna members said the legislation will equip the Lokpal with supervisory powers at the most and as the CVC experience shows, this is not an effective deterrent.

In the case of the CBI chief's appointment process, opposition should not have a quarrel as unlike the selection panel for Lokpal, the collegium is not dominated by the government. Interestingly, on Sunday, finance minister Mukherjee had indicated that the collegium will have Lokpal, besides the PM and leader of opposition. Now the watchdog has been replaced by CJI or its nominee.

With regard to a citizens' charter setting duties and penalties for public authorities, the Lokpal will have appellate jurisdiction as complaints will first be screened by redressal committees.

The government plans to introduce the bill on Thursday and is still looking at a three-day sitting it has scheduled after Christmas vacation, beginning December 27 for its passage.

The government is having to deal with the resistance from BSP, Shiv Sena and MPs from the North East who wants the matter to be disposed of before the two Houses recess on December 23. The exact schedule will be worked out after the meeting of Business Advisory Committeee of Lok Sabha scheduled for Wednesday morning.

Provisions of the Lokpal and Lokayukta Bill 2011

* Lokpal will be a 9-member body, including the chairman

* It will have 50% reservation for OBCs, SCs/STs/Minorities; quota also in search committee

* Selection panel will comprise PM, leader of opposition in LS, Speaker, CJI or his nominee and a legal expert nominated by President

* Lokpal to get constitutional status

Prime Minister

* PM put within purview of Lokpal subject to safeguards relating to national security, foreign affairs, space, atomic energy and defence

* 3/4ths of the Lokpal must agree before a probe against PM

* Inquiry to be held in-camera

Group C&D

* All four categories of govt employees under Lokpal. On A&B, CVC has to report to Lokpal

* CVC can't close investigations against senior ofifcers on its own

* Group C&D: Lokpal can ask CVC to investigate cases and CVC must report back to Lokpal

* CVC can probe cases against C&D on its own as well. It can also refer cases to CBI on its own

* Lokpal will also have a wing to conduct preliminary inquiries and a prosecution department

CBI

* CBI chief to be selected by a collegium comprising PM, leader of opposition, CJI/his nominee

* Govt retains administrative control over CBI and its finances

* CBI will retain its autonomy of investigation, but mandatorily report to, even file PEs, in cases referred to it by Lokpal

* No interference with its power to investigate independently, either of government or Lokpal or judiciary

Citizens' charter

* Lokpal will have appellate jurisdiction

Time line

* Govt plans to introduce it on Thursday and is still looking at the 3-day sitting from Dec 27 to pass it

* Parties like BSP, Shiv Sena and MPs from the North East want the matter disposed of before Dec 23

Points of divergence between Team Anna and government:

On PM Govt wants PM under Lokpal, excluding national security matters. Team Anna wants PM to be under Lokpal without any condition.

On CBI Team Anna wants CBI to function under Lokpal. Govt agrees to a selection committee to choose CBI chief, but will not cede administrative control over agency.

On citizen's charter Govt for a citizens' charter under a grievance redressal law setting out duties of public authorities. Team Anna wants the mechanism under Lokpal.

On Lower bureaucracy Govt for indirect Lokpal say over lower bureaucracy through CVC. Team Anna wants direct Lokpal supervision.

On Lokayuktas Bill will advocate setting up of Lokayuktas in states. Team Anna wants law to mandate state-level ombudsman.

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