16 August 2011

Jan Lok Pal ver 2.3

Fot those who have no time to read the draft but are bent on supporting the bill anyway (but WHY!), upto Chapter 3 in the draft alone, I could see these many problems. Refrained myself from adding too many opinions. Think for yourself.

(Excerpts from draft at the IAC site itself)


THE JAN LOKPAL BILL 2011

 ... The bill, therefore, provides that the vigilance machinery and the grievance redressal machinery also be brought under the supervisory control of an independent Lokpal.

... In accordance with all the above principles enunciated in the UNCAC, the powers of investigation and prosecution of public officials for corruption and disciplinary action for corruption against government officials are sought to be brought under an independent Lokpal authority... Other ancillary powers such as freezing of assets acquired by public servants by corrupt means are also sought to be conferred on this authority. The integrity of the authority and the anti-corruption/vigilance machinery under its control is sought to be achieved by mandating transparency in its functioning and public participation, wherever possible. The accountability of the Lokpal itself would be to the Supreme Court, which would have the authority to enquire into and order the removal of members of the Lokpal (my note: Lokpal is a committee with JUDGES. Smart card). Judicial review over the actions of the Lokpal by the High Courts under Article 226 (my note: gives opposing views 2 months to PROVE their views or stay quiet, as mentioned later) and the Supreme Court under Article 32 and 136 would further ensure the accountability of the Lokpal.


A Bill to establish an independent authority to investigate offences under the Prevention of Corruption Act, 1988 to detect corruption by expeditious investigation and to prosecute offenders and to ensure timely redressal of certain types of public grievances and to provide protection to whistleblowers.

PRELIMINARY
 (e) “Act of corruption” includes -:
 (j) “Penalty” under this Act means punishment of dismissal, removal or reduction in rank
(k) “Public authority” means any authority or body or institution of self-governance established or constituted –
i) by or under the Constitution; or
ii) by or under any other law made by the Parliament, or a state legislature 8
iii) by notification issued or order made by the Government, and includes any body owned, controlled or substantially financed by the Government;

CHAPTER II
ESTABLISHMENT OF LOKPAL
4. (1) Immediately after the commencement of this Act, the Central Government by a Notification shall establish an institution known as Lokpal, who would have administrative, financial and functional independence from the government.
 (4) The following shall not be eligible to become Chairperson or Member of Lokpal:
(a) Any person, who is not a citizen of India, or
(b) Any person, against whom charges were ever framed by any court of law for any offence involving moral turpitude, or
(5) At least four members of Lokpal shall have a legal background.
Explanation: “Legal Background” means that the person should have held a judicial office in the territory of India for at least ten years or should have been an advocate (note: NOT a judge.) in a High Court or the Supreme Court for at least fifteen years.

CHAPTER III POWERS AND FUNCTIONS OF THE LOKPAL AND ITS OFFICERS
Functions of Lokpal:
6. The Lokpal shall have the following functions and powers
a) to exercise superintendence over the investigation of offences involving any act of corruption.
b) to give directions to the investigating officers for the purpose of proper investigation of such offences.
c) after completion of investigation in any case involving an allegation of an act of corruption, to impose punishment of dismissal, removal or reduction in rank against government servants after giving them reasonable (note: which is?) opportunities of being heard.
f) to ensure the proper prosecution of cases before a Special Court established under the Prevention of Corruption Act, 1988.  
(l) to appoint judicial officers, prosecutors and senior counsels.
(n) to attach property and assets acquired by corrupt means and to confiscate them in certain cases as provided under this Act.
p) to ensure due compliance of its orders by imposing penalties on persons failing to comply with its orders as provided under this Act.
v) to require any public authority to render any specific help required by the Lokpal.
 (x) Such other functions as may be necessary for the proper implementation of this Act.
Powers of officers under Lokpal
7. (1) The Investigating Officers of Lokpal authorized to investigate offences under the Prevention of Corruption Act 1988 shall have all the powers which are vested in a Police Officer while investigating offences under the Code of Criminal Procedure, as well as the powers conferred on the director of enforcement under the Foreign Exchange Management Act, 1999 as well as under the Prevention of Money Laundering Act, 2002.
(2) The members of Lokpal or any officer under the Lokpal while exercising any powers under the Act shall have the powers of a civil court trying a suit under the Code of Civil Procedure, 1908, and in particular, in respect of the following matters :
(a) summoning and enforcing the attendance of any person from any part of India and examining him on oath;
(b) requiring the discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any court or office;
(e) issuing commissions for the examination of witnesses or other documents; and
(f) any other matter which may be prescribed
(3) All members of the Lokpal and all officers of the Lokpal superior in rank to an Investigating Officer may exercise the same powers as may be exercised by such Investigating Officer. (Note: Why mention investigating officer earlier instead of mentioning ‘all lokpal are police officers with the power of a court’? in other words, play God.)
(4) A Lokpal bench may punish a public servant with imprisonment up to 6 months or with fine or both, if he fails to comply with its order for ensuring their compliance
(5) If during the course of investigation into a complaint, the Lokpal feels that continuance of a government servant in that position could adversely affect the course of investigations or that the said government servant is likely to destroy or tamper with the evidence or influence the witnesses or is likely to continue with corruption, the Lokpal may issue appropriate directions including transfer of that government servant from that position.
 (7) While investigating any offence under Prevention of Corruption Act 1988, Lokpal shall be competent to investigate any offence under any other law in the same case.
8. For the purposes of investigation of offences related to acts of corruption, the appropriate Bench of the Lokpal shall be deemed to be designated authority under Section 5 of the Indian Telegraph Act empowered to approve interception and monitoring of messages of data or voice transmitted through telephones, internet or any other medium as covered under the Indian Telegraph Act read with Information and Technology Act 2000 and as per rules and regulations made under the Indian Telegraph Act 1885.
Issue of search warrants:
(3) A warrant issued under sub-section (1) shall for all purposes, be deemed to be a warrant issued by a court under section 93 of the Code of Criminal Procedure, 1973. 

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