Friends,
I present before you a few of the Write-ups written by me and my wife Dr Nutan Thakur related with the issue of Lokpal. They can be perused in totality through the PDF file attached along with this mail and also through the web-link presented at the end.
I also present these write-ups separately (despite facing the fear of annoyance of some friends) for the welfare of those who might want detailed and separate discussions on these very important topics we are discussing day in and day out.
I make it clear that these are our personal views and need to be treated accordingly.
Amitabh
# 94155-34526
The first Article is-
Lokpal is not going to be a magical panacea
These days Lokpal is the biggest noise we are hearing everywhere. The way things are being presented, it seems as of this proposed institution of Lokpal is going to be a panacea for all that this related with corruption- in the same vein as the Bollywood films show the death of a villain and the life being happy for ever after that. This is a highly simplistic way of presenting facts and highly erroneous as well. As far as we can understand, there can't be a one is to one relation between the institution of Lokpal and the fight against corruption. Even if the Lokpal finally comes into being, its effect would be minimal as long as we don't take multi-pronged approach to fight corruption because-
a. There is nothing new in this proposed Lokpal by the Civil societies which is not already there in our existing laws. Whatever new is there, that is generally against the established principles of law. Our country has a very large number of laws for curbing corruption. The most important of them is the Prevention of Corruption Act. Then there is the Prevention of Money Laundering Act, 2002. The Benaami property (Prohibition) Act 1988 is also there. It is true that there are loopholes and problems in each of these Acts but such loopholes can be discussed and cured. There are other so many anti-corruption Acts as well. All these Acts can be discussed on public forum and proper solutions can be arrived at. There is always a scope for improvements in laws, it being a dynamic process. But it can't be said that corruption is there in India only because of lack of proper laws. Hence, propagating and inserting more laws can never be regarded as the sole way of reducing or eliminating corruption. b. In the same way, we also have a very large number of laws and prescribed procedure for implementing and following these Acts. Some of the most important of these are section 154, 156 and 200 of Cr P C. Under section 154 CrPC, every complaint of cognizable offence needs to be registered in a police station if such a complaint is presented to the officer in charge. If the same is refused or not registered, under section 154(3) CrPC, it becomes the responsibility of the Superintendent of the District to get the offence registered. Even if such a case is not registered, there is section 156 CrPC under which the concerned Judicial Magistrate has the powers to get the crime registered. Finally under section 200 CrPC, the Magistrate can take suo-moto cognizance of the complaint made before him. What is important to note is that all complaints related with Corruption are cognizable offences and hence can be followed through one of these provisions. Even if all these mechanism fail, there is the High Court and the Supreme Court which can get the crime registered. c. The kind of fruitless discussion about who shall come under the purview of Lokpal or not, whether the PM or the Chief Justice of Supreme Court shall come under Lokpal or not etc are again nothing more than pointless realm of public discourse. The reason is obvious- the CrPC, the IPC and even the Constitution of India does not give any person other than the President of India and Governor of a State any kind of criminal immunity. Cases of corruption can be registered and investigated against any person. If such things are actually not happening, it is not because of the dearth of legal provisions, it is because of the practical difficulties and realities of life. If the all-powerful organizations like the Supreme Court and the High Courts can't get it done, can an organization like Lokpal get it done? d. If it is said that we lack in powerful organizations vested with required legal force, then again it is absolutely incorrect. If we have such powerful organizations like the Indian Parliament and the State legislatures to frame and enact laws and rules, we also have such extremely powerful legal bodies like the Supreme Court and the High Courts. While the High Courts have extraordinary powers under Article 226 of the Constitution, the Supreme Court of India has wonderful legal powers under Articles 32, 136, 139)A) and 142. So much so that if they want to act, they can get anything enforced within a few minutes. Hence to say that we lack in organizations with sufficient powers is nothing but a fallacy and a lie, possibly being perpetuated deliberately. It is almost like saying that Democracy does not exist in our Nation. e. The institution of Lokpal shall have a few Lokpals and their assistants. They shall be getting umpteen number of complaints. The fact of life is that very soon they will be so much overburdened by complaints and paper works that they shall not be able to look beyond their regular administrative works. Certainly in such conditions, they will hardly be left to deal with enquiries and investigations. f. Even if Lokpal or such other organizations come into being, the judicial powers of the Supreme Court and the High Courts shall still remain there. Hence there will be judicial interventions as well as Judicial activism. In sum, the situation will remain the same. g. Hence there is neither a dearth of laws in our Nation nor any lack of procedures to get these laws implemented. What actually needs to be done is that the publicly concerned persons come forth in all these individual cases and pursue them to the hilt by presenting them at all possible forums. This can happen only through public advocacy, people's participation and by gaining the people's confidence and not through any other Institution. h. Today our Anti-corruption organizations are said to be facing mainly three kinds of problems- first is about lack of resources and manpower, the second is about political interference and the third is that of huge workload. We often see that when people ask for a CBI enquiry in a matter of great importance, CBI is not able to take it up because of the severe lack of resources. The same is true of all other premier investigating and anti-graft organizations. This is also the case with most of the Judicial bodies. Even if an organization like the Lokpal comes in existences, very soon it will also be overburdened with cases and its condition will be no different from that of others. i. As far as political interference is concerned, to think of political insulation and isolation from political impact in any democratic system is like dreaming in broad daylight. It comes naturally as a natural corollary. We can easily see that even when Lokpal has not come into existence, a chosen few seem to have converted it into their own fiefdom. Another parallel power center is also trying to gain prominence and to have its say. By the time Lokpal is actually a reality, there would be scores of parallel power centers of different natures all vying for power, position and perks. The way the members of the Lokpal Bill Committee reacted when allegations were made against some of their members even before the allegations were actually verified, is a testimony to how things will actually shape up when the race for Lokpal will actually come into operation. j. It is again a great fallacy being propagated that vested interests including corrupt politicians and bureaucrats do not want a strong anti-graft body to come up. Is it not the height of foolishness to think that the people who don't fear the CBI, who don't care for the Enforcement Directorate, who are least bothered about the Income Tax, who don't consider the COFEPOSA or the Prevention of Corruption Act as being good enough and who ignore the presence of the High Court and the Supreme Court would start shivering with the coming of Lokpal? The matter of fact is that such powerful corrupt people will hardly care for any organization. For them their personal gains and own greed would remain uppermost than anything else. They would be knowing very well that the powers of Judicial intervention would remain intact, they would also know that the personnel in the Lokpal organization would not be coming from some other planet and would be as much willing to hobnob with the rich and the powerful as anyone else. k. In sum, what all this means is that Lokpal or any such Institution is not solely going to make a remarkable difference to the prevailing situation. What we really need is to strengthen our existing establishments by making a realistic assessment of their problems and shortcomings through open eyes and open mind and not to go on bringing more and more newer Institutions.
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