Tuesday, 10 May 2011

Lokpal- a solution?

The Lokpal Bill, a proposed piece of legislation that is supposed to provide an effective tool against corruption in public life in India, has captured the popular imagination in India. Amidst scenes unprecedented in the history of independent India, the common people made a joint stand in support of a mass movement spearheaded by a social activist for the enactment of a piece of legislation that is expected to have revolutionary potential.

Intimidated by the spectre of mass discontent, the central government quickly gave in to the demands of the social activists spearheading the movement and setup a committee to oversee the drafting of the proposed bill.

I came across an article on rediff.com yesterday (Can you spot any loopholes in the Lokpal Draft? 9th May 2011) which outlines the main provisions of the Lokpal Bill. Having been one of the most passionate advocates of the bill, I could not help feel concerned when I saw the broad contours of the draft bill. Admittedly I have not seen the original text and so the views that follow will necessarily be subject to qualification on that score.

Apparently, the bill proposes to empower the Lokpal to recommend penalties and possibly even dismissal of government servants where corruption is proved. The question that automatically arises is whether parties proven guilty can escape on appeal. Unless there is a specific provision that the recommendations of the Lokpal will be binding on a court of law, baring demonsrably mitigating circumstances, the Lokpal will be no more than an authority making recommendations that could easily be rejected by a court of law- which would effectively preserve the status quo.

Secondly, what kind of a judicial mechanism will the bill provide to dispose of cases relating to corruption? In all probability, recommendations made by the Lokpal will be passed on to a high court. In that case, will there be dedicated benches in the high courts across India to ensure that such cases are quickly disposed? If not, there is the very real danger that the cases will be stuck with high courts for several years, which would defeat the very purpose of enacting the bill. 

Furthermore, what kind of an appeal mechanism will the bill provide? Apparently, appeals will have to be made to the high court. Given the fact that the bill empowers the Lokpal to cancel or modify licenses, agreements or contracts, will there be a mechanism to ensure that corruption cases do not add to the responsibilities to an already overburdened judiciary? Ideally a court of law should only be responsible for deciding on a question of law in such cases (which means that courts of law should only be responsible for looking into the legal merits of the case and not be called upon to decide on the facts of the case), which would enable speedy disposal.

Apparently, cases under the act (which is what the bill will become, once enacted by parliament) will be decided within a year. Is the one year time limit mandatory or is it merely a guideline? What safeguards will the bill provide to ensure that the one year limit is actually observed in practice? What kind of remedial action will be taken, should the time limit prove difficult to meet?

Another significant fact that needs closer scrutiny is that the bill proposes to empower the Lokpal to tap phones and intercept internet communications. That being the case, will there be an authority to which the Lokpal will be accountable? If not, there is the very real risk that the Lokpal could end up becoming an instrument for domestic espionage in the wrong hands.

With the proposals still subject to negotiations, these are just a few out of several questions that demand reflection on the part of our legislators. This is a golden opportunity for India to provide a platform for the common man to seek justice against corruption which, if frittered away, could keep millions of our citizens defenceless for several years more to come. This could be just another short-lived upheaval, this could be a tipping point that could trigger off a siesmic shift in the history of India.

Only time will tell us which way the winds of history will blow.

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