Dear Friends,
Challenges before the proposed Lokpal - Continued:
2. It seems that there are two broad objectives that the Lokpal Bill intends to achieve by being a Body independent of the Government: (a) Vigilance & Investigation (b) Conviction through prosecution.
(a) Vigilance & Investigation:
As written earlier, except for the Head of the Institution, the complete existing bureaucratic machinery will have to inherited by the proposed Lokpal. The Head of the body may be independent but the bureaucratic machinery at its disposal (which actually will be instrumental in carrying out ground level vigilance & investigations) has been and will be appointed through the existing HR department of the Government of India, and may not be as independent of the Government as desired.
(b) Conviction through Prosecution:
In fact, the ultimate objective of the proposed Lokpal is to prevent corruption by convicting a few of them.
It is important to note here, that the proponents of the Lokpal Bill have time and again reiterated that - RTI has brought out and proved beyond doubt that there is rampant corruption, but despite all these clinching evidences clearly out there in the public domain and being highlighted time and again by the media, none of the proven corrupt are getting convicted and jailed, but, well, they are moving about scot-free enjoying all the money (booty), thereby emboldening others to indulge in corruption. Therefore, we need a strong law in place, so that these corrupt people can be convicted and put behind the bars. And so, the proponents of Lokpal believe that RTI Act has done well as far as vigilance & investigation is concerned and that is not the problem area for which Lokpal is being envisaged, but it is the lack of convictions (despite clinching evidences out there in public domain),which is the driving force behind the demand for enactment of a Lokpal independent of the existing Government.
Now, suppose for the moment, we assume that necessary powers for initiating prosecution without seeking necessary directions from any of the authorities are conferred on the Lokpal;
The conviction aspect of governance would still, ultimately fall in the domain of the Judicial Branch of the Government, as reasoned below:
I would request my friends to visit the provision of section 23 of the RTI Act for understanding the same. The Parliament had very clearly laid down u/s. 23 that there will be Bar of Jurisdiction of Court from any appeal orders passed under the RTI Act, but, as we all know by now, this provision has been set aside by the HC/SC under the Doctrine of Judicial Review, because sec. 23 violates the basic structure of the Constitution of India i.e. In a democratic government system, for every aspect of governance there have to be three branches of government, namely Legislature, Executive and Judiciary and none of these branches can be excluded from any aspect of governance.
As per internationally well established Doctrine of Judicial Review: Every Law MADE as well as Every Law IMPLEMENTED is subject to Judicial Review.
Thus, if any law abrogates the right of the citizens to seek Appellate Judicial Review it violates the Basic Structure of the Constitution of India and hence it will be set aside under the Doctrine of Judicial Review.
For more details on the subject, case laws etc. one may please go through the following link: http://sunilahya.livejournal.com/7995.html
Therefore, the right to Appellate Judicial Review cannot be denied to any citizen and as such the CONVICTIONS (especially high profile ones given their abilities to spend on litigation) will in all probabilities have to clear both HC & SC level, before the person finally gets effectively convicted.
If the cases get languished in the courts the deterrence of Lokpal will be ineffective and if the cases get disposed off swiftly in a time bound manner the deterrence of Lokpal would be effective. (In any case, the deterrence (reiterate - in high profile cases) seems to be dependent on the swiftness of the Courts rather than that of the Lokpal)
Now, if the cases were to be disposed off swiftly by the Judicial Branch (Courts - they have all the required powers) in the first place, there would have been no need for enacting a quasi-judicial body like Lokpal for the purpose of conviction i.e. prevention of corruption.
Thus, Lokpal being a quasi-judicial body:
The conviction and thereby prevention of corruption has been and will remain ultimately in the domain of the Judicial Branch of the Government.
For any form of injustice (corruption being one of the several forms of injustice) in a democratic society the onus primarily lies on the shoulder of Judicial Branch of the Government and not on the Legislature or Administrative Wing of the Government.
One may also like to go through the internationally well established Doctrine of Separation of Powers in a Democracy to understand the subject in more detail and thereafter fix the responsibility of prevailing INJUSTICE (READ CORRUPTION) on the appropriate branch of a Democratic Government.
KEYS: Transparent Appointment of Judges (the documents pertaining to appointment process of Judges are very much under the ambit of RTI Act, 2005 and requires to be made public), Transparent Appointment of Information Commissioners & !00% implementation of the RTI Act, 2005 are the needs of the day.
Please do not underestimate the omnipotent power of RTI Act to address the issue of Corruption, it is an unparalleled concept with a potential (as the awareness spreads) vigilance commission of 121 crore people and is simply more than enough to address the issue of corruption. In fact, implementation of Section 4 of the RTI Act can deter corrupt practices ab-initio, thereby largely obviating the necessity for vigilance, investigations and convictions (As the old saying goes - Prevention is better than cure).
Citizens (Private Body) as an institute (i.e. RTI Act) need to rule the Government (Public Body); an institute made up of some citizens will always fall short of expectations in the long run.
Transparency in a Democracy is the KEY.
Best Regards,
Sunil.
P.S. If the existing laws & institutions have all the necessary provisions & powers respectively, for delivering justice, than what exactly is different that the Lokpal promises to offer? To be continued ......
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