As the Union Government conceded the demands of fasting civil society leader Anna Hazare to constitute a joint drafting committee with equal participation to Government and civil society, there is a hope that an effective draft of Lokpal would emerge which facilitate easy and free complaining process and quick investigation leading to prosecution of corrupt in high places.
Most important factor to seriously attend to is the threat of imposing fines and jail terms for bringing complaints which will be an ante-thesis to fight gratification cancer. The Government’s Lokpal Bill 2010 is not just a strange embodiment of powerlessness but also possesses a hidden interest in blocking the complaints with penal threat. Being draconian against ‘complainants’ and ineffective against corrupt, the bill rises serious suspicions about dubious intentions of the law makers and that is why there is a nation wide response to the anti-corruption agitation led by Anna Hazare. It is undemocratic and against basic tenets of equity and criminal justice to entrust tribunal with power of summary trial to penalize the citizen for raising voice against the bribery of public servants. The drafting committee should avoid two inherent defects- being weak against corrupt and strong against the voice of complainant, which defeat the purpose of the law. It is highly unbecoming for a Government, being in the thick of scams, to push such a bill, after 45 years of most frustrating wait of the people.
It is a contradiction to empower Lokpal to penalize complainant without giving it such power against proved corrupt public official. The unreasonable Section 21(3) of the bill enables Lokpal to punish the complainant if ‘complaint is false and made with mala fide intention to harass the functionary’. Section 21(4) has provided that Lokpal could summarily try and punish such complainants with a minimum of one year imprisonment which may go up to three years, imposition of penalty up to Rs. 50,000 and compensate public functionary out of the fine amount.
Nowhere in the world had any system of criminal justice punished a complainant for lodging a complaint if that turns out to be false. If the system does not facilitate the information and complaints into legal course of action, law could never take its course. If the complaint proved to be malicious and that led to prosecution of innocent the remedy available under the traditional law systems is action in a civil court under law of torts for the wrong called ‘malicious prosecution’, leading to a decree for payment of compensation for proved loss. If some one maliciously fabricates false evidence or gives false witness leading to capital punishment or imprisonment of innocent accused, he can be sentenced with severe punishment under Penal Code.
Immunity for Bribe-giver complainant
Neither IPC, nor Prevention of Corruption Act PCA (1947 and 1988) provided punishment for complainant. Instead, two enactments against bribe provided immunity to bribe-giver from prosecution based on the statement (S 24 of 1988 Act). The hundred-and-fifty-year old Indian Penal Code was the basic tool for combating corruption in public life. A chapter in IPC on ‘offences by public servants’ consisting of sections 161 to 165 provided a legal framework to prosecute corrupt public servants. Post Second World War scenario of corruption was serious, as unscrupulous elements exploited shortages of law to siphon off huge amounts of public money. The Prevention of Corruption Act 1947 was a drastic legal measure to fight evil of bribery. Without redefining ‘public servant’ and other IPC offences, this law added a new offence ‘criminal misconduct in discharge of official duty’ with stipulation of enhanced punishment from minimum of 1 year to maximum 7 years.
Provision of immunity to bribe-giver was considered necessary as he might have been forced by circumstances. If this immunity was not provided, all complainants would become liable for punishment, which would deter them from giving complaints against any corrupt public official. When PCA 1988 replaced its earlier version of 1947, the provisions of immunity to bribe giver were retained. This fact is mentioned in paragraph 3.1.3 and 3.2 of Fourth Report of Second Administrative Reforms Commission, chaired by Mr. Veerappa Moily, the then Union Law Minister, under title “Ethics in Governance”, submitted to the UPA Government in January 2007. It is bit of shame that the same Government moves the bill with a deterrent punishment threat to complainant, in utter breach of its own report. Though Jan Lokpal vehemently opposed the jail term to complainant, it favoured financial penalties, which also has deterrent effect. When substantial criminal law offers immunity there is no reason to threaten the complainant.
As the Lokpal is expected to be watchdog over the integrity of Ministers and Members of Parliament, there is a need to strengthen complainant against politically strong and powerful office holders against whom the complaint is made. There is every possibility that the corrupt leaders and bureaucrats of ganging up and disprove the allegations made by complainant, who does not have any equipment or infrastructure to prove the corruption. The Ministers or MPs would have total control over the men and machinery where the corruption occurred and it would be almost impossible for the complainant to prove it. While under anti-corruption law the state takes responsibility to prove charge of corruption against the accused public servant, Lokpal burdens the complainant to prove it with a threat of penalty.
Shifting the burden to accused
If public servant is proved to have accepted any gratification, this law provided that ‘it shall be presumed that the public servant accepted such gratification as a motive or reward under section 161 of IPC (now Section 7 of Prevention of Corruption Act, 1988). This is a very significant presumption that shifted burden of proof to the accused to convince that he was not guilty, unlike the general law where prosecution has to prove the guilt of accused. While the bill provided one year time frame to investigate and prosecute, it gives power to try ‘complainant’ summarily, which is another baffling provision that terrorize the reporting against bribery.
There are some more meaningless and format based restrictions which discourage complaints. Section 12(2) seeks filing of memorandum of allegations only in a prescribed form, with fee and deposit of an amount of money as mandated. The complainant has to submit the certificate of deposit also. Only exception provided is that a person in any jail or place of custody or in any asylum or other place for insane persons. Their letters will be considered as memorandum of allegations though not in prescribed form.
Draconian
Another draconian provision of the Bill is that Lokpal can punish with six months of imprisonment any person who intentionally offers insult against Lokpal or members of it while verifying the complaint. (Section 19) The bill does not use expressions like contempt of defamation, but penalizes ‘insult’ without defining what it is.
The drafting committee should keep in mind that entire nation now woke up to watch how the provisions of the bill are evolving and avoid all unreasonable provisions which weaken complaining mechanism.
Follow Prof. Madabhushi Sridhar, Professor, Nalsar at http://madabhushi.goforthelaw.com
No comments:
Post a Comment