Fw: Fwd: Draft NCPRI submissions on the Lokpal Amendment Bill

[Chitta Behera]

On Sunday, 22 February 2015 5:59 PM, Chitta Behera <chitta...@yahoo.co.in> wrote:

Request to NCPRI: Please reread Clause 9 of Lokpal Amendment Bill 2014

On perusal of NCPRI’s timely submission on the Lokpal and Lokayuktas Amendment Bill 2014 to the Parliamentary Standing Committee we the activists of Odisha Lokayukta Abhijan agree to its overall tenor except in respect of one matter i.e. its recommendation concerning Clause 9 of the Bill which seeks to partially replace Section 4BA that was inserted in the DSPE Act 1946 by way of Amendment to that Act effected by the Lokpal and Lokayuktas Act 2013.   

First of all, the Lokpal Act 2013 amended the DSPE Act 1946 (that governs the constitution and functioning of country’s premier investigating agency viz. CBI) with a view to ensuring that the Director CBI in order to act freely, fairly and fearlessly in investigating any case of corruption  referred to him by Lokpal or any other competent authority (such as Supreme Court, any of the High Courts, Central Government or any State Government ) would henceforth be selected by an apex committee comprising PM, Leader of Opposition and Chief Justice of India (in fulfilment of a long standing demand for several decades for transforming CBI from a servile tool of the Government to an independent and autonomous body, that served as the main driver of recently unfolded Anna inspired anti-corruption movement culminating in enactment of Lokpal Act 2013). Secondly the Act of 2013 also ensured that every complaint of corruption held genuine through enquiry and investigation by the Director CBI would be subject to prosecution by the Director Prosecution in the designated Courts for punishing the corrupt public servants in a time-bound manner as laid down in the said Act. To achieve this integrated objective i.e. completion of investigation immediately followed by the prosecution, the Act of 2013 justifiably made the provision in 4BA (2) of DSPE Act that ‘The Director of Prosecution shall function under the overall supervision and control of Director’ (meaning Director CBI). In fact this Act created a new Directorate of Prosecution within the DSPE structure, with its focus being the time-bound prosecution and punishment of the public servants held guilty of corruption by the investigation conducted by the CBI. Argued from a reverse position, in the absence of a dedicated prosecution directorate to work under the control of Director CBI the very promise of the Lokpal Act for a time-bound punishment to the corrupt public servants would remain only a pipedream.

It seems the NCPRI has erred in confusing the Director Prosecution mentioned in the Amendment to DSPE Act (Section 4BA) effected by Lokpal Act 2013, with the Director Prosecution mentioned in Section 12 (Prosecution Wing) of the said Act. Let it be made absolutely clear that these two Directors of Prosecution are not the one and same entity, but two separate entities having two separate modes of appointment and two separate mandates. While the latter (Section 12 of Lokpal Act) is a wing of Lokpal constituted by Lokpal itself with the sole mandate to prosecute the cases of corruption on the orders of Lokpal, the former (Section 4BA of DSPE Act) though bearing the same nomenclature i.e. Director Prosecution, happens to be the head of a Directorate of Prosecution, to be appointed on the recommendation of CVC but to function under the control and supervision of Director CBI, for the purpose of prosecuting not only the cases of corruption if and when referred by Lokpal (vide Section 20-8) but also for prosecuting all cases of crime including that of corruption on the orders of Director CBI. Thus the Director Prosecution acting under the Director CBI (Section 4BA of DSPE Act) has a much wider mandate than that of Director Prosecution acting under Lokpal (Section 12 of Lokpal Act). It goes to the credit of Lokpal Act 2013 that this Act true to its all-encompassing anti-corruption mission, provided for a dedicated prosecution directorate for CBI while putting in place a dedicated prosecution wing for Lokpal.

It is however disconcerting to note that the Lokpal Amendment Bill 2014 very cunningly seeks to dismantle the integrated investigation-cum-prosecution system which finds embodied in the single, reconstituted structure of CBI made possible through amendment to DSPE Act 1946 as laid down in the Schedule to the Lokpal Act 2013. Firstly, the Clause 9 of the said Bill deletes the provision of ‘overall control and supervision’ to be exercised by the Director CBI over the Director Prosecution, creating thereby necessary space for the Government to exercise the control and supervision over the Director Prosecution. Next, the said Clause of the Bill allows the Director Prosecution to hold differences of opinion from that of the Director CBI, which implies that even if the Director CBI has proved a public servant corrupt through his investigation, the Director Prosecution may simply refuse to prosecute him in the Special Court citing the new clause. In the ensuing standoff between the two Directors the proven case of a corrupt public servant would enjoy the virtual protection from any manner of trial or punishment in the post-investigation period. The next provision of the Clause 9 is further reprehensible since it provides for such differences of opinion to be “referred to the Attorney-General for India for his advice, and his advice shall be final and binding”. Needless to say, the Attorney-General is basically an appointee of the Central Government and therefore whatever advice he would tender in the context of the above differences of opinion can’t but be in line with the wish of the Government-that-be. Further, to render the subjugation of the Director Prosecution under the Governmental control foolproof, the Clause-9 of the Bill provides, “The annual performance appraisal report of the Director of Prosecution shall be recorded and maintained in the Ministry of Law and Justice, in such manner as may be prescribed.". Thus, the Bill aims at reducing the Director Prosecution to a servile tool of the Government, who can render the Director CBI a virtually dysfunctional executive and his charge-sheet against a corrupt public servant meaningless by exercising his right to differences of opinion with Director CBI, by his obligation to adhere to the decision of Attorney General and by his unwritten loyalty to the concerned Ministry of the Central Government which maintains his APAR. The nation would thus be pushed back to the square one, i.e. Governmental control over prosecuting agencies, against which the anti-corruption crusade spanning several decades since mid-sixties of last century had marched forward culminating in the enactment of historic Lokpal and Lokayuktas Act 2013.

As for the question who should maintain whose APAR it is worthwhile to mention that the APAR of a particular public servant should be maintained by his/her controlling authority. In the instant case, therefore the APAR of Director Prosecution working under the control of Director CBI needs to be maintained by the latter, and that of Director Prosecution constituted and working under Lokpal by the Lokpal. The proposal to entrust the maintenance of APAR of Director Prosecution to the Ministry of Law and Justice, GoI aims at making it doubly sure that the Director Prosecution never falters in dancing to the choreography of Central Government.

While the NCPRI’s submission on Lokpal Amendment Bill 2014 is on the whole a valuable critique of the various problematic propositions mooted therein, it seems to lack in a clear understanding of the highly cunning provisions made in Clause 9 of the Bill on the innocuous pretext of providing functional autonomy and independence to the Directorate of Prosecution vis-a-vis Director CBI. I wish the NCPRI fraternity to re-read the Clause and restate its position thereon since this single clause of the Bill has the potential to decimate at one go not only the quintessence of historic Lokpal Act 2013 but also the entire fabric of an independent and autonomous investigating and prosecuting system that the said Lokpal Act had laboriously built up by way of amending several archaic and flawed legislations.

The above reading of Clause 9 of the Lokpal Amendment Bill 2014 was arrived at in a Consultation Meet held at Bhubaneswar on 1^st February 2015 called on behalf of Odisha Lokayukta Abhijan, the details of which are available in the two attachments being sent herewith.     

Chitta Behera, 22^nd February 2015

Odisha Lokayukta Abhijan, Cuttack, Mobile - 09437577546

 

On Thursday, 5 February 2015 12:08 AM, Pradip Pradhan <pradipp...@gmail.com> wrote:

---------- Forwarded message ----------
From: Venkatesh Nayak <nayak.v...@gmail.com>
Date: Wed, 4 Feb 2015 18:09:21 +0530
Subject: Draft NCPRI submissions on the Lokpal Amendment Bill
To: "ncpriworki...@googlegroups.com"
<ncpriworki...@googlegroups.com>, Anjali Bhardwaj
<anjal...@gmail.com>, Nikhil Dey <nikh...@gmail.com>, Bhaskar
Prabhu <mahitiadh...@gmail.com>, Dr Shaikh Ghulam Rasool
<dr.sh...@gmail.com>, Joykumar Wahengbam <joykwa...@gmail.com>,
Rakesh Reddy Dubbudu <rakesh....@gmail.com>, Amrita Johri
<amrit...@gmail.com>, shekhar singh <shekha...@gmail.com>,
shailesh gandhi <shail...@gmail.com>, aruna roy
<arun...@gmail.com>

Dear all,
I have attached a draft submission on the Lokpal Amendment Bill for the
consideration of the Working Committee. As agreed in a discussion with
Anjali I have included submissions about the proposals only and not what
has not been proposed in the Bill. Please send your comments to Manu at the
Secretariat by 2pm tomorrow, to enable the finalisation of the submission
by the evening.
The 2nd attachment contains the comparative table I had sent out in
December soon after the Bill was tabled in Parliament. The third attachment
is the text of the Bill as introduced in the Lok Sabha. I have not attached
the LL Act 2013 as I have put in the original provisions of the Act in the
comparative table against the proposed changes.

The deadline for sending comments to the Committee is 6th February, 2015.
Thanks
Venkatesh Nayak
Co-Convenor

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[Sarbajit Roy]

Dear Chitta

Thanks for your insightful observations.

I feel that NCPRI should not dignify this scandalous and outrageous
piece of "law", which has been imposed on India through US and World
Bank financed lackeys, by our participation.

Sarbajit
Co-Convenor
NCPRI
www.ncpri.org

PS: please activate the CR+LF option in your email client, see below..

On 2/22/15, 'Chitta Behera' via RTI India : Right to Information, CIC

<rti_...@googlegroups.com> wrote:
>
>
> On Sunday, 22 February 2015 5:59 PM, Chitta Behera
> <chitta...@yahoo.co.in> wrote:
>
>
> Request to NCPRI: Please reread Clause 9 ofLokpal Amendment Bill 2014On

> perusal of NCPRI’s timely submission on the Lokpal andLokayuktas Amendment
> Bill 2014 to the Parliamentary Standing Committee we theactivists of Odisha
> Lokayukta Abhijan agree to its overall tenor except inrespect of one matter
> i.e. its recommendation concerning Clause 9 of the Bill whichseeks to
> partially replace Section 4BA that was inserted in the DSPE Act 1946by way

> of Amendment to that Act effected by the Lokpal and Lokayuktas Act
> 2013. First of all, the Lokpal Act 2013 amended the DSPE Act 1946(that
> governs the constitution and functioning of country’s premierinvestigating

> agency viz. CBI) with a view to ensuring that the Director CBI inorder to

> act freely, fairly and fearlessly in investigating any case ofcorruption

> referred to him by Lokpal orany other competent authority (such as Supreme
> Court, any of the High Courts,Central Government or any State Government )
> would henceforth be selected by anapex committee comprising PM, Leader of
> Opposition and Chief Justice of India (infulfilment of a long standing
> demand for several decades for transforming CBIfrom a servile tool of the
> Government to an independent and autonomous body, thatserved as the main

> driver of recently unfolded Anna inspired anti-corruptionmovement
> culminating in enactment of Lokpal Act 2013). Secondly the Act of 2013also
> ensured that every complaint of corruption held genuine through enquiryand
> investigation by the Director CBI would be subject to prosecution by

> theDirector Prosecution in the designated Courts for punishing the corrupt
> publicservants in a time-bound manner as laid down in the said Act. To
> achieve thisintegrated objective i.e. completion of investigation
> immediately followed bythe prosecution, the Act of 2013 justifiably made the
> provision in 4BA (2) ofDSPE Act that ‘The Director of Prosecution shall
> function under the overallsupervision and control of Director’ (meaning
> Director CBI). In fact this Actcreated a new Directorate of Prosecution
> within the DSPE structure, with itsfocus being the time-bound prosecution
> and punishment of the public servantsheld guilty of corruption by the
> investigation conducted by the CBI. Arguedfrom a reverse position, in the
> absence of a dedicated prosecution directorate towork under the control of
> Director CBI the very promise of the Lokpal Act for atime-bound punishment
> to the corrupt public servants would remain only apipedream. It seems the
> NCPRI has erred in confusing the DirectorProsecution mentioned in the
> Amendment to DSPE Act (Section 4BA) effected byLokpal Act 2013, with the
> Director Prosecution mentioned in Section 12(Prosecution Wing) of the said
> Act. Let it be made absolutely clear that thesetwo Directors of Prosecution
> are not the one and same entity, but two separateentities having two
> separate modes of appointment and two separate mandates. Whilethe latter

> (Section 12 of Lokpal Act) is a wing of Lokpal constituted by Lokpalitself
> with the sole mandate to prosecute the cases of corruption on the ordersof
> Lokpal, the former (Section 4BA of DSPE Act) though bearing the

> samenomenclature i.e. Director Prosecution, happens to be the head of a
> Directorateof Prosecution, to be appointed on the recommendation of CVC but
> to functionunder the control and supervision of Director CBI, for the
> purpose ofprosecuting not only the cases of corruption if and when referred
> by Lokpal(vide Section 20-8) but also for prosecuting all cases of crime
> including thatof corruption on the orders of Director CBI. Thus the Director
> Prosecutionacting under the Director CBI (Section 4BA of DSPE Act) has a
> much widermandate than that of Director Prosecution acting under Lokpal
> (Section 12 ofLokpal Act). It goes to the credit of Lokpal Act 2013 that
> this Act true to itsall-encompassing anti-corruption mission, provided for a
> dedicated prosecution directoratefor CBI while putting in place a dedicated
> prosecution wing for Lokpal. It is howeverdisconcerting to note that the
> Lokpal Amendment Bill 2014 very cunningly seeksto dismantle the integrated
> investigation-cum-prosecution system which finds embodiedin the single,
> reconstituted structure of CBI made possible through amendmentto DSPE Act
> 1946 as laid down in the Schedule to the Lokpal Act 2013. Firstly,the Clause

> 9 of the said Bill deletes the provision of ‘overall control andsupervision’
> to be exercised by the Director CBI over the Director Prosecution,creating
> thereby necessary space for the Government to exercise the control

> andsupervision over the Director Prosecution. Next, the said Clause of the
> Bill allowsthe Director Prosecution to hold differences of opinion from that
> of the DirectorCBI, which implies that even if the Director CBI has proved a
> public servantcorrupt through his investigation, the Director Prosecution
> may simply refuseto prosecute him in the Special Court citing the new
> clause. In the ensuingstandoff between the two Directors the proven case of
> a corrupt public servantwould enjoy the virtual protection from any manner
> of trial or punishment inthe post-investigation period. The next provision

> of the Clause 9 is further reprehensiblesince it provides for such

> differencesof opinion to be “referred to the Attorney-General for India for
> his advice,and his advice shall be final and binding”. Needless to say,
> theAttorney-General is basically an appointee of the Central Government
> andtherefore whatever advice he would tender in the context of the
> abovedifferences of opinion can’t but be in line with the wish of
> theGovernment-that-be. Further, to render the subjugation of the
> DirectorProsecution under the Governmental control foolproof, the Clause-9
> of the Billprovides, “The annual performance appraisal report of the
> Director ofProsecution shall be recorded and maintained in the Ministry of
> Law andJustice, in such manner as may be prescribed.". Thus, the Bill aims
> atreducing the Director Prosecution to a servile tool of the Government, who
> can renderthe Director CBI a virtually dysfunctional executive and his
> charge-sheet againsta corrupt public servant meaningless by exercising his
> right to differences ofopinion with Director CBI, by his obligation to
> adhere to the decision ofAttorney General and by his unwritten loyalty to
> the concerned Ministry of theCentral Government which maintains his APAR.
> The nation would thus be pushed backto the square one, i.e. Governmental
> control over prosecuting agencies, againstwhich the anti-corruption crusade
> spanning several decades since mid-sixties oflast century had marched
> forward culminating in the enactment of historicLokpal and Lokayuktas Act
> 2013. As for the question who should maintain whose APAR it isworthwhile to
> mention that the APAR of a particular public servant should bemaintained by
> his/her controlling authority. In the instant case, therefore theAPAR of

> Director Prosecution working under the control of Director CBI needs tobe
> maintained by the latter, and that of Director Prosecution constituted

> andworking under Lokpal by the Lokpal. The proposal to entrust the
> maintenance ofAPAR of Director Prosecution to the Ministry of Law and
> Justice, GoI aims at makingit doubly sure that the Director Prosecution
> never falters in dancing to thechoreography of Central Government. While the
> NCPRI’s submission on Lokpal Amendment Bill2014 is on the whole a valuable
> critique of the various problematic propositionsmooted therein, it seems to
> lack in a clear understanding of the highly cunningprovisions made in Clause
> 9 of the Bill on the innocuous pretext of providing functionalautonomy and
> independence to the Directorate of Prosecution vis-a-vis DirectorCBI. I wish

> the NCPRI fraternity to re-read the Clause and restate its positionthereon

> since this single clause of the Bill has the potential to decimate atone go

> not only the quintessence of historic Lokpal Act 2013 but also theentire
> fabric of an independent and autonomous investigating and prosecutingsystem
> that the said Lokpal Act had laboriously built up by way of amendingseveral
> archaic and flawed legislations. The above reading of Clause 9 of the Lokpal

> Amendment Bill2014 was arrived at in a Consultation Meet held at Bhubaneswar
> on 1stFebruary 2015 called on behalf of Odisha Lokayukta Abhijan, the
> details ofwhich are available in the two attachments being sent herewith.
> Chitta Behera, 22nd February 2015Odisha Lokayukta Abhijan, Cuttack,

> an email to ncpriworkingcomm...@googlegroups.com.

> For more options, visit https://groups.google.com/d/optout.
>
>
>
>
>
>

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