Page 1 of 43

Issue No. 1

Prime Minister
(Please refer Annexure 1 on Pg 22 for details) Our view: Any allegation of corruption against PM should be investigated by an independent agency like Lokpal. Special safeguards will be provided against frivolous and mischievous complaints. A bench of seven members of Lokpal will first hear the complaints and decide whether there is adequate prima facie evidence to pursue the investigation, and could punish the mala fide complainants. Governments view: Any allegation of corruption against PM should be investigated by CBI, which is under the administrative control of the PM himself.

Your views: PM should come under the perview of the Lokpal. -------------------------------------------------------------------------------------------------------------------------------

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Kindly put Y in the box against one of the statement that you agree with.

I feel this issue is non-negotiable. This is the right time to demand & pursue wholeheartedly. I feel that though this issue is important, however, we may postpone it for the moment.

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Issue No 2

Judiciary
(Please refer Annexure 2 on Pg 25 for details) Our view: An independent seven member bench of Lokpal should grant permission to register FIR against a judge, which is presently being provided only by Chief Justice of India after judgment in the K. Veeraswamy case 1991(3) SCC 655. Lokpal will ensure special safeguards against frivolous and mischievous complaints. Governments view: In the proposed Judicial Accountability Bill, permission to register FIR against a judge will be granted by a three member committee, consisting of two judges of the same High Court and one retired Chief Justice of the same High Court.

Your views: Lokpal should have power to grant permission to register FIR against a Judge. -------------------------------------------------------------------------------------------------------------------------------

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Kindly put Y in the box against one of the statement that you agree with.

I feel this issue is non-negotiable. This is the right time to demand & pursue wholeheartedly. I feel that though this issue is important, however, we may postpone it for the moment.

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Issue No 3

Members of Parliament
(Please refer Annexure 3 on Pg 30 for details) Our view: Lokpal should be able to investigate allegations against MPs if they take bribe to vote or raise questions in Parliament.

Governments view: Allegations against MPs should be investigated by an in house committee of MPs. Through this system, many members were expelled; however no one has been prosecuted so far, despite so many cases of horse trading being exposed.

Your views: Yes Lokpal should be able to investigate allegations against MPs. -------------------------------------------------------------------------------------------------------------------------------

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Kindly put Y in the box against one of the statement that you agree with.

I feel this issue is non-negotiable. This is the right time to demand & pursue wholeheartedly. I feel that though this issue is important, however, we may postpone it for the moment.

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Issue No 4

Grievance Redressal
Our view: Each department should have a Citizens Charter specifying which work will be done by which officer in how much time. Violation of Citizens Charter, i.e. if an officer doesnt do a citizens work in prescribed time, and subsequently the Head of that department (HOD) also fails, should result in a penalty on the officer as well as the HOD. This penalty should be given as compensation to the citizen and it should be deemed to be corruption.

Governments view: Government has agreed to citizens charters. However, government disagrees on penalties. In the absence of penalties, the compliance of Citizens Charter is highly unlikely.

Your views: I agree with your view. -------------------------------------------------------------------------------------------------------------------------------

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Kindly put Y in the box against one of the statement that you agree with.

I feel this issue is non-negotiable. This is the right time to demand & pursue wholeheartedly. I feel that though this issue is important, however, we may postpone it for the moment. Issue No 5

Page 5 of 43

Central Bureau of Investigation

(Please refer Annexure 4 on Pg 33 for details) Our view: Anti-corruption branch of CBI should be merged into independent institution of Lokpal.

Governments view: Government wants to maintain a separate investigation agency which is under its direct control.

Your views: Anti-corruption branch of CBI should be merged with Lokpal. -------------------------------------------------------------------------------------------------------------------------------

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Kindly put Y in the box against one of the statement that you agree with.

I feel this issue is non-negotiable. This is the right time to demand & pursue wholeheartedly. I feel that though this issue is important, however, we may postpone it for the moment.

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Issue No 6

Selection of Lokpal Members

Our view: A detailed broad based and transparent selection process is laid out with participation from public. A Search committee comprising of people form retired constitutional authorities (like CEC, CAG) as well as civil society shall identify people thrice the number of vacancies for Lokpal members. Feedback from public will be invited and then finally the selection committee with 2 politicians, 4 judges & 2 independent constitutional authorities will select Lokpal and members.

Governments view: In the Selection committee, 6 out of 10 members will be directly from the ruling establishment. No clear selection process is provided, will completely depend on the whims of selection committee. The Search committee will also be selected by Selection committee, thus making it a pawn of Selection Committee.

Your views: Selection process should have 4 judges and 4 independent constituitional authorities, and no politicians. -------------------------------------------------------------------------------------------------------------------------------

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Kindly put Y in the box against one of the statement that you agree with.

I feel this issue is non-negotiable. This is the right time to demand & pursue wholeheartedly. I feel that though this issue is important, however, we may postpone it for the moment.

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Issue No 7

Who will Lokpal be accountable to?

Our view: To the people. Any citizen can seek removal of Lokpal or its members by just filing

petition in Supreme Court.

Governments view: To the Government. Only government can seek removal of Lokpal members. Government could even suspend a Lokpal member. This means that any inconvenient Lokpal member will be proceeded against. With selection and removal of Lokpal in governments control, it would virtually be a puppet in governments hands.

Your views: Lokpal should be accountable only to the people. Government can also file a petition to Supreme Court if Government wants to seek removal of any member. -------------------------------------------------------------------------------------------------------------------------------

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I feel this issue is non-negotiable. This is the right time to demand & pursue wholeheartedly.

Page 8 of 43

I feel that though this issue is important, however, we may postpone it for the moment.

Issue No 8

Integrity of Lokpal staff

Our view: Complaint against Lokpal staff will be heard by an independent complaints authority. Regular social audits at each level of Lokpal, annual financial audit and performance audit by CAG and annual performance appraisal by Parliamentary committee.

Governments view: Lokpal members will themselves resolve complaints against Lokpal. All these proposals have been rejected by the government.

Your views: I agree with your view. -------------------------------------------------------------------------------------------------------------------------------

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Page 9 of 43

I feel this issue is non-negotiable. This is the right time to demand & pursue wholeheartedly.

I feel that though this issue is important, however, we may postpone it for the moment. Issue No 9

Lower bureaucracy
(Please refer Annexure 5 on Pg 35 for details) Our view: All those defined as public servants in Prevention of Corruption Act would be covered. This includes entire bureaucracy.

Governments view: Only Group A officers of the central government will be covered.

Your views: All public servants should be covered. -------------------------------------------------------------------------------------------------------------------------------

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Page 10 of 43

I feel this issue is non-negotiable. This is the right time to demand & pursue wholeheartedly.

I feel that though this issue is important, however, we may postpone it for the moment.

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Issue No 10

Lokayukta in each State

(Please refer Annexure 5 on Pg 35 for details) Our view: The same bill should provide for Lokpal at centre and Lokayuktas in states

Governments view: Only Lokpal at the centre would be created through this Bill. According to Mr Pranab Mukherjee, some of the CMs have objected to providing Lokayuktas through the same Bill. However all Congress CMs have written that they will abide by whatever High Command decides. He was also reminded that state Information Commissions and Central Information Commission were also set up under RTI Act through one Act only.

Your views: Same bill should provide for Lokpal at Centre and Lokayukta at Sate level. -------------------------------------------------------------------------------------------------------------------------------

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Kindly put Y in the box against one of the statement that you agree with.

I feel this issue is non-negotiable. This is the right time to demand & pursue wholeheartedly. I feel that though this issue is important, however, we may postpone it for the moment.

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Issue No 11

Whistleblower protection
Our view: Lokpal will be required to provide protection to whistleblowers, witnesses and victims of corruption

Governments view: According to govt, protection for whistleblowers is being provided through a separate law. But that law is so bad that it has been trashed by standing committee of Parliament last month. The committee was headed by Ms Jayanthi Natrajan.

Your views: Wistle blowers and witnesses must be provided protection. -------------------------------------------------------------------------------------------------------------------------------

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Kindly put Y in the box against one of the statement that you agree with.

I feel this issue is non-negotiable. This is the right time to demand & pursue wholeheartedly. I feel that though this issue is important, however, we may postpone it for the moment.

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Issue No 12

Special benches in High Court

Our view: High Courts will set up special benches to hear appeals in corruption case to fast track them. Any appeal should be disposed within six months. One study shows that it takes 25 years at appellate stage in corruption cases.

Governments view: No such provision.

Your views: Corruption cases must be fast tracked. Any appeal must be disposed off in six months. -------------------------------------------------------------------------------------------------------------------------------

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Kindly put Y in the box against one of the statement that you agree with.

I feel this issue is non-negotiable. This is the right time to demand & pursue wholeheartedly. I feel that though this issue is important, however, we may postpone it for the moment.

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Issue No 13

Dismissal of Corrupt Government Servant

Our view: After completion of investigations, in addition to filing a case in a court for prosecution, a bench of Lokpal will hold open hearings and decide whether to remove the government servant from job. Lokpals order could be challenged in High Court

Governments view: The minister will decide whether to remove a corrupt officer or not. Often, there is collusion between a minister and senior functionaries. Rather than punish them, corrupt officers are often rewarded.

Your views: Corrupt public/government servant must be removed from job. Lokpals order can be challenged in court. -------------------------------------------------------------------------------------------------------------------------------

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Kindly put Y in the box against one of the statement that you agree with.

I feel this issue is non-negotiable. This is the right time to demand & pursue wholeheartedly. I feel that though this issue is important, however, we may postpone it for the moment.

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Issue No 14

Punishment for Corruption

Our view: 1. Maximum punishment should be life imprisonment 2. Higher punishment if rank of accused is higher 3. Higher fines if accused are business entities 4. If successfully convicted, a business entity should be blacklisted from future government contracts.

Governments view: None of these accepted. Only maximum punishment raised to ten years from earlier seven years.

Your views: I agree with your view. -------------------------------------------------------------------------------------------------------------------------------

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Kindly put Y in the box against one of the statement that you agree with.

I feel this issue is non-negotiable. This is the right time to demand & pursue wholeheartedly. I feel that though this issue is important, however, we may postpone it for the moment.

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Issue No 15

Financial Independence
Our view: Lokpal budget shall be charged to Consolidated Fund of India. However, the quantum of budget shall be determined by the 11 members collectively and not exceeding 0.25% of total revenues.

Governments view: Lokpal budget shall be charged to Consolidated Fund of India. However, the quantum of budget shall be determined by Ministry of Finance. This seriously compromises with the financial independence of Lokpal

Your views: I agree with your view. Finance ministry should not be involved. -------------------------------------------------------------------------------------------------------------------------------

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I feel this issue is non-negotiable. This is the right time to demand & pursue wholeheartedly. I feel that though this issue is important, however, we may postpone it for the moment.

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Issue No 16

Prevent further corruption loss

Our view: Lokpal will have a duty to take steps to prevent corruption in any ongoing activity, if brought to his notice. Lokpal will make recommendations to the government. If government does not accept those recommendations, Lokpal may approach High Court and obtain necessary orders.

Governments view: No such duties and powers of Lokpal

Your views: This need not be a part of the duties of Lokpal. But nothing stops people from making a complaint to Lokpal and Lokpal can start proceedings. -------------------------------------------------------------------------------------------------------------------------------

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Kindly put Y in the box against one of the statement that you agree with.

I feel this issue is non-negotiable. This is the right time to demand & pursue wholeheartedly. I feel that though this issue is important, however, we may postpone it for the moment.

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Page 19 of 43

Issue No 17

Delegation of Powers
(Please refer Annexure 6 on Pg 37 for details) Our view: Lokpal members will only hear cases against senior officers and politicians or cases involving huge amounts. Rest of the work will be done by officers working under supervision of Lokpal

Governments view: All work will be done by 11 members of Lokpal. Practically no delegation at all! This is a sure way to make Lokpal dysfunctional by sheer overburden.

Your views: I agree with your view. -------------------------------------------------------------------------------------------------------------------------------

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Kindly put Y in the box against one of the statement that you agree with.

I feel this issue is non-negotiable. This is the right time to demand & pursue wholeheartedly. I feel that though this issue is important, however, we may postpone it for the moment.

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Issue No 18

Jurisdiction over all NGOs, associations

(Please refer Annexure 7 on Pg 39 for details) Our view: Only NGOs funded by government covered

Governments view: All NGOs, big or small, whether government funded or not, even unregistered movements and campaigns also covered under the ambit of Lokpal. This seems to be targeting those who raise their voice against corruption.

Your views: Everyone who is a Public Servant and/or dealing with a Public Servant should come under Lokpal. -------------------------------------------------------------------------------------------------------------------------------

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Kindly put Y in the box against one of the statement that you agree with.

I feel this issue is non-negotiable. This is the right time to demand & pursue wholeheartedly. I feel that though this issue is important, however, we may postpone it for the moment.

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Issue No 19

False, frivolous and vexatious complaints

(Please Annexure 8 on Pg 40 for details) Our view: No imprisonment. Only fines on complainants. Lokpal would decide whether a complaint is frivolous or vexatious or false.

Governments view: Two to five years of imprisonment and fine. The accused has a right to file cross complaint against complainant directly in special court. Free advocate will be provided to the accused by the government to file a case against complainant, while the citizen has to defend by self. If proved frivolous, the citizen who has made the complainant will also have to pay compensation to the accused. This provision will give a handle to every accused to browbeat complainants. Interestingly, minimum punishment for corruption is six months but for filing false complaint is two years

Your views: If complaint turns out to be false or frivolous then punishment should be fines. Lokpal should decide on this. There should be no imprisonment, unless it is proved that complainant had malafide intentions. If complainant had specific intention to malign and trouble an honest public servant then punishment should be fine and jail. Lokpal should decide on this. -------------------------------------------------------------------------------------------------------------------------------

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Page 22 of 43

I feel this issue is non-negotiable. This is the right time to demand & pursue wholeheartedly.

I feel that though this issue is important, however, we may postpone it for the moment. Issue No 20

Method of inquiry
(Please Annexure 9 on Pg 41 for details) Our view: Same procedure as is followed for investigation of any other crime should be followed.

Governments view: Government has made special concessions, contrary to the provisions in CrPC. The accused would be issued show cause notice and after showing him all evidence, he would be asked why an FIR should not be registered against him.

Your views: Normal procedure should be followed as for any investigation. -------------------------------------------------------------------------------------------------------------------------------

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I feel this issue is non-negotiable. This is the right time to demand & pursue wholeheartedly.

I feel that though this issue is important, however, we may postpone it for the moment

Annexures

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Annexure 1

Should Prime Minister be brought under Lokpals scanner?

Present position:
A misconception is being created in the minds of the people as if the Prime Minister was out of the purview of anti-corruption laws and as if we are demanding that he be brought in the purview of anticorruption regime for the first time. This is completely wrong. As of today, the Prime Minister is covered under the Prevention of Corruption Act. Under that law, any allegation of corruption against a Prime Minister can be investigated. No exception has been made for either the Prime Minister or any of his activities (like external affairs, defence etc). Every activity of the Prime Minister can be investigated under Prevention of Corruption Act. However, as of today, the investigations are done by CBI, which is directly under the control of the Prime Minister himself. Therefore, obviously, CBI can never do an honest investigation against its own boss. Government wants to take PM out of Lokpals ambit. It can mean two things. If the government wants to keep PM within the ambit of anti-corruption regime, as it exists today, but out of Lokpal, this means that the PM wants to continue being investigated by an agency directly under his own control, which is a farce. But if government wants to take PM completely out of anti-corruption regime or even to take some part of his jurisdiction out of the ambit of Lokpals investigations, then the government would need to amend the Constitution of India because the Constitution does not grant any such immunity to the Prime Minister. Only President has been granted immunity from any investigations and trials.

Our Proposal:
The only change that we are proposing in the present system is that rather than being investigated by an agency directly under his own control, let the PM be investigated by an agency which is independent, like the Lokpal. We are not proposing any other change.

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Why is it important for prime Minister to be brought under Lokpal?

Dr Manmohan Singh has himself admitted that he could not act in certain situations due to the compulsions of coalition dharma. Lokpal would strengthen PMs position and help him say No next time to any wrongdoing. The Prime Minister is privy to a lot of security related sensitive information. Suppose tomorrow, a corrupt person became Prime Minister. Wont the security of our country itself be seriously compromised if Prime Minister enjoyed complete immunity from any investigations and trials? There is no civilized country that we are aware of where the head of government is immune from corruption investigations.

Critique of our proposal

Our response

Governments stand is that a Prime Minister under scanner would become dysfunctional.

Is it really true? Did Mr Rajiv Gandhi, the then Prime Minister, become dysfunctional due to Bofors probe? Or did Mr P V Narasimha Rao become dysfunctional due to probe in Jharkhand Mukti Morcha case?

The government is giving another argument to keep the Prime Minister out - there would be frivolous and politically motivated complaints which would keep the PM perpetually under scanner.

That is incorrect because adequate checks have been suggested against such frivolous complaints. An unsubstantiated complaint would not be entertained by Lokpal. A seven member bench of Lokpal would first hear that complaint and decide whether there was adequate prima facie evidence against the PM. If there were none, the complaint would be dismissed and complainant could be

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punished.

Flip flop in governments own position:

Dr Manmohan Singh has himself offered to be brought under the purview of Lokpal Bill. Interestingly, three out of the five ministers, who are members of the joint drafting committee, have themselves advocated inclusion of the Prime Minister in Lokpal Bill on earlier occasions. Shri Pranab Mukherjee, as the Chairperson of the parliamentary standing committee on Lokpal Bill in 2001 under NDA regime, had himself recommended that Prime Minister should be covered under the ambit of Lokpal. The then Prime Minister Sh Atal Bihari Vajpayee agreed to that recommendation. Later in January 2011, Mr Moily, Law Minister in the present government, suggested inclusion of Prime Minister in Lokpals purview in the draft law prepared by him. This draft law was sent to the home ministry under Mr Chidambaram, which also concurred with this view in its comments made in March 2011. So, it appears that in the last ten years from the year 2001 upto March 2011, the governments view has been that the Prime Minister should be brought within the purview of Lokpal. Now, the government has suddenly taken a U-turn.

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Annexure 2

Should judiciary be brought under the purview of Jan Lokpal Bill?

Present problem:
Today, if there is an allegation of corruption against any Supreme Court (SC) or High Court (HC) judge, an FIR cannot be registered and investigations cannot be started into those allegations without the permission of the Chief Justice of India (CJI). Experience shows that Chief Justices have hesitated in giving permissions, despite overwhelming evidence of corruption being presented against any judge. Even those Chief Justices, who have been well known for their honesty, did not give permissions. For instance, Mr P Chidambaram sought permission to register an FIR against Justice Sen Gupta of Kolkatta High Court. Permission was sought from the then Chief Justice of India, Justice Venkatachaliah, who is very well known for his integrity. However, Justice Venkatachaliah did not give permission. Was the evidence against Justice Sen Gupta strong enough? The strength of the evidence can be gauged from the fact that Justice Sen Gupta was raided and arrested soon after he retired because after retirement, permission of CJI was not required. Despite overwhelming evidence of corruption available in public domain against many High Court and Supreme Court judges, permission to register FIR was granted in just two cases by the Chief Justice of India in the last twenty years. There are many more instances when permission for registration of FIR has been denied. Some such cases are mentioned below: Despite overwhelming evidence, request of the Campaign on Judicial Accountability (represented by Shanti Bhushan, Prashant bhushan, Ram jethmalani, Justice Rajender Sachhar, Indira jaisingh, Arvind Nigam etc) seeking permission to register an FIR against Justice Bhalla of Allahabad High Court is pending before the Chief Justice of India since 2006. Similarly, the request of Campaign for Judicial Accountability and Judicial Reforms seeking to register FIR against Justice F I Rebello is pending since September 2010. Therefore, the present system appears to have encouraged corruption in higher judiciary.

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Proposal:
An impression is being sought to be created that judiciary is being brought under the control of Jan Lokpal. This is completely incorrect. What is being proposed is that the permission to register FIR against corruption of any judge should be granted by a seven member bench of Jan Lokpal (the bench may have majority of judicial members) rather than the Chief Justice of India. That is the only real difference in the system proposed in Jan Lokpal Bill and the existing system. Post registration of an FIR, the police or CBI investigates and prosecutes (if a case is made out) under the existing system. Since we are proposing that the anti corruption branch of CBI would be merged into Jan Lokpal and would form the investigation and prosecution wing of Jan Lokpal, therefore, obviously the investigations and prosecution after registration of FIR is proposed to be done by the new investigation and prosecution wings of Lokpal. Therefore, effectively, there is just one change being proposed from the existing system that rather than CJI giving permission to register FIR, a seven member bench of Lokpal should grant such permission.

Critique of our proposal

Our response

This would affect the independence of judiciary.

We have greatest respect for our judiciary and we strongly stand for its independence. Most of the judges in higher judiciary are honest. Jan Lokpal Bill seeks to create a system, which is independent of judiciary, to grant permission to register an FIR and initiate investigations against a judge. Judiciarys independence is provided in the constitution to enable judges to impart justice, not to take bribes. Nowhere is it written in the constitution that if any judge indulges in corruption, the same cannot be investigated by an

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independent agency.

This would tremendously increase the workload of Lokpal

There are less than 1000 SC and HC judges in our country. Justice S P Bharucha had once commented that less than 20% of higher judiciary is corrupt. Obviously, complaints will not come against all of them at the same time. But even if all complaints came together, there will be less than 200 complaints. That is a very small number and would not increase the workload of Lokpal in any manner.

Judicial matters are very technical. Therefore, Only people from judiciary should deal with complaints against judges.

Jan Lokpal Bill does not empower Lokpal to go into or question the judicial procedures or decisions of judiciary. It does not empower Lokpal to peep into professional (mis)conduct of judges. It only empowers them to grant permission to register an FIR against a judge against whom there are allegations of bribery. Giving and accepting bribe is a criminal offence. There is no technicality involved in that. If that logic were accepted, then the income tax people would also say that income tax is a very complex subject and only people with income tax backgrounds should deal with allegations of corruption against income tax officers. There would be similar demands from politicians, customs officers and other sections of bureaucracy.

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But the proceedings for impeachment of judges is already provided in the Constitution. Are you suggesting an amendment to the Constitution?

We are not seeking any amendment to the constitution. We are not even touching the provisions relating to impeachment of judges as provided in the constitution. We are not even talking of impeachment. Impeachment would continue to be done by the Parliament as provided in the Constitution. All that we are saying is that the power to grant permission to register FIR against a judge should be given to a seven member bench of Lokpal rather than the CJI.

Complaints against Lokpal members will go to Supreme Court and those against Supreme Court judges will go to Lokpal. Would that not create some kind of circularity?

If there is a complaint against a Supreme Court judge and a Lokpal member at the same time, then obviously, the accused judge or the accused member will recuse himself from the benches. If ever such an eventuality happens, the transparency of proceedings in the two institutions will keep a check on the possibility of any misuse. The hearings at the two places will be open for the public and media.

Wont we need to amend the constitution to allow a seven member bench of Lokpal to give permission rather than the CJI under the existing system?

No, we wont need any amendment. There is no provision either in the constitution or in any law which empowers the CJI to give permission before

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registration of an FIR against any judge. Such a system was created by the Supreme Court through an order in Veeraswamy case, in which the SC made it mandatory that permission would need to be sought before registration of an FIR against any judge. Interestingly, no frivolous FIR had ever been filed against any judge before that judgement and such a judgement was completely uncalled for.

Judicial corruption should be brought under the ambit of Judicial Accountability Bill
In principle, we have no problem in that. However, there are several problems in bringing it under Judicial Accountability Bill and the following needs to be kept in mind: 1. Judicial Accountability Bill (JAB), drafted by the government, does not talk of bribery by the judges. It only talks of misbehavior. 2. Even if it were brought under the purview of JAB, The National Oversight Committee sought to be created through JAB will not have the police and investigative powers and machinery to deal with criminal complaints of bribery, which Lokpal would have. Therefore, the two bills actually complement each other. 3. The government is now saying that they would include corruption also in addition to misbehavior in JAB. However, JAB, as drafted by the government, has too many serious deficiencies. JAB says that any complaint against a judge would first be scrutinized by a three member scrutiny panel consisting of a former Chief Justice of the same High Court (to which the accused judge belongs) and two sitting judges of the same court. This means that two judges of a court would decide whether to initiate investigations against their brother judge of the same court. That would be much worse than the present system where the Chief justice of India grants such permission. 4. It is being alleged that Lokpal Bill will compromise judicial independence. If so, how will JAB not compromise judicial independence? The National Oversight Committee (NOC) sought to be created through Judicial Accountability Bill is similar to the Lokpal (barring their names). How is NOC more

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constitutional than Lokpal? Just because NOC will have some judges? But then even Lokpal will have four judges. Therefore, isnt the public being misled by saying that the independence of judiciary will be protected if judicial corruption were addressed through JAB rather than by Lokpal? 5. JAB drafted by the government is a very bad law. It has been criticized by everyone. Rather than reduce corruption, it would end up protecting the corrupt judges. The law ought to be changed drastically to make it effective. 6. Even if judicial corruption were included in JAB, it is not clear when would an effective JAB become a reality? Should we wait endlessly till JAB became a reality? We have absolutely no problem in judicial corruption being included in JAB if JAB were made strong and effective and if JAB were also passed along with Lokpal Bill.

Annexure 3

Should MPs be covered under Lokpal?

Present situation:
The country has been witness to several instances of horse trading of MPs and MLAs in the past. If our MPs could be bought like this, then our democracy is in danger. We have great respect for our elected representatives but as the saying goes one bad fish brings a bad name to the entire pond. Likewise, a few corrupt elected representatives have tarnished the image of the entire class of elected representatives. Such people should be identified and punished. According to the Supreme Court judgement in Jharkhand Mukti Morcha case, the conduct of an MP in Parliament cannot be questioned in any court of law. According to that judgement, the person who gave bribe can be convicted and sent to jail but the MP who took that bribe cannot be prosecuted. Despite evidence coming out in open in so many cases, in the last 62 years, no MP has even been prosecuted and sent to jail so far. Forget conviction, none of these cases were honestly investigated. Only enquiries were done on the basis of which, some MPs were expelled. But corruption is a crime. Their expulsion is not sufficient. They ought to have been prosecuted and tried in a court of law. There should have been criminal investigation and subsequent conviction. However, that did not take place in any of these cases.

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Our Proposal:
Therefore, the present system of self regulation by the House has not worked. On the contrary, it encourages horse trading. This problem ought to be addressed immediately. An independent and credible agency ought to receive and investigate such complaints. Since Lokpal would be responsible for investigating similar crimes against other set of public servants, therefore, we are suggesting that Lokpal should be given this responsibility also.

Critique of our proposal

Our response

This would compromise the independence of legislature.

This is incorrect. Only if there is a credible evidence of corruption against any MP would the investigations start. Ordinarily, an MP will continue doing his job without any interference. Independence has been given to MPs under Article 105(2) of the Constitution to speak and vote and not to take bribes.

Constitution would need to be amended for that.

Article 105(2) of the constitution only grants immunity to MPs to speak and vote independently in Parliament. It does not grant them immunity to sell their vote and right to ask questions. Therefore, many experts believe that a law would be sufficient to address this issue and to overturn the JMM judgement. However, even if constitution needs to be amended, we feel that it should be done to address such a critical problem.

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National Commission for review of Constitution had recommended amendment of Constitution to enable credible investigations by independent agencies (see below).

Frivolous complaints would be filed against them and they might be unnecessarily harassed

Any complaint against an MP will first be scrutinized by a bench of seven members of Lokpal. Frivolous or mischievous complainant would be penalized.

National Commission to review the Working of the Constitution, set up in the year 2000, examined this issue in detail and recommended: The Commission recommends that article 105(2) may be amended to clarify that the immunity enjoyed by Members of Parliament under parliamentary privileges does not cover corrupt acts committed by them in connection with their duties in the House or otherwise. Corrupt acts would include accepting money or any other valuable consideration to speak and/or vote in a particular manner. For such acts they would be liable for action under the ordinary law of the land. It may be further provided that no court will take cognisance of any offence arising out of a Member's action in the House without prior sanction of the Speaker or the Chairman, as the case may be. Article 194(2) may also be similarly amended in relation to the Members of State Legislatures. At that time, the Commission recommended that the prosecution sanction should be granted by the Speaker because there was no independent body like Lokpal. With Lokpal in place, we strongly suggest that this job should be entrusted to a seven member bench of Lokpal.

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Annexure 4

Why should CBI be merged into Lokpal?

Present situation:
CBI is directly controlled by the government. Before starting any investigation, it has to seek permission from the government, sometimes from the same people who are either accused or could be influenced by the accused. Despite huge unaccounted cash being recovered from the house of a top NHAI officer, Kamal Nath denied permission to initiate enquiry against him. After completion of investigations, if sufficient evidence is found, CBI has to again seek permission from the same people in the government to file a case in the court. Coal Ministry just sat on CBIs repeated requests to prosecute the officer who was to become the CMD. Railways just sat on CBIs request to prosecute one of its top employees involved in railway recruitment scam. There are many other ways in which the government controls CBI. Like CBIs lawyers are appointed by Law ministry and are under ministrys control. Even if a CBI officer does a good investigation, the government can kill that case in the court through the lawyer. CBIs officers are also appointed by the government and are under governments control. Therefore, CBI is completely in the clutches of the government. It has been used by every successive government to teach lessons to political opponents and to arm twist them into submission.

Our Proposal:
Supreme Court, on many occasions has said that CBI should be made completely independent of the government. For obvious reasons, successive governments have not done that. This is exactly what Jan Lokpal Bill proposes to do now, that the anti-corruption wing of CBI should be made independent and be made the investigation arm of Lokpal. In effect, our entire proposal of jan Lokpal can be summed up as we are making the anti-corruption wing of CBI independent and renaming it as Lokpal. However, governments draft allows government to continue CBI under its own control. Lokpal will be given its separate investigative machinery.

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Governments proposal has following problems: 1. What if the same complaint is made to both CBI and Lokpal? Which agency takes precedence? It is almost like having two police stations in same village. 2. With a choice between a compromised CBI and an independent Lokpal, wont almost all people like to approach Lokpal? Then what would CBI do? It would be left to investigate only those cases which are forwarded to it by the government itself. This means that the government basically wants to continue misusing CBI for its political purposes. 3. CBIs annual budget is around Rs 300 crores. Why should we spend the same amount to create another set up to do the same things? 4. Government says that the government also needs some agency to get various cases investigated. We are suggesting only that part of CBI to be transferred to Lokpal which deals with anticorruption cases. If government wishes to get any corruption case investigated, why cant it forward to Lokpal itself?

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Annexure 5

Should Lokpal deal with only higher level corruption

and should Lokayuktas be set up through the same law?
Governments Lokpal Bill confines Lokpals jurisdiction to Group A Central Government officers. Common man rarely has to deal with Group A officers in central government offices say in Income Tax department or Excise or Customs or Railways. If at all, common man deals with much junior officers in these departments. At the same time, a common man has to deal with a lot of state government departments like ration, water, electricity, licensing etc. However, government refuses to include all central government employees in Lokpals ambit. Government also refuses to set up Lokayuktas in all states, which could have jurisdiction over state government employees. Unfortunately, the entire debate on Lokpal Bill has got concentrated on inclusion of PM, MPs and higher judiciary in the ambit of Lokpal. Whereas these are important issues, they are not the key issues. We are more interested in finding solution for a common man who faces corruption in his day to day life. Where will a common man go, who has to deal with junior functionaries? Government has no answers. Government says that since there are 4 million central government employees, 2 million public sector employees and 8 million state employees, it cannot check their corruption. It would require a huge workforce. Is that a valid excuse to keep the workforce corrupt and unchecked? Till now governments have deliberately starved anti-corruption systems of adequate resources. Internationally, one anticorruption staff is provided for every 200 government employees. Against this, there are just 15 anticorruption officers to check 85000 Delhi Police staff. CBI has just 3000 staff in its anti-corruption wing to check corruption of 4 million central government and 2 million public sector employees. Like murder and rape, corruption is a crime. Can the government say that it will not provide adequate staff to check murders and rapes? Corruption violates fundamental rights of citizens like right to life and right to equality. It is the prime duty of any government to protect its citizens against crime and to protect their fundamental rights, whatever be the resources required. If the government feels that checking upper level corruption would have a trickle down effect, then the governments assumption is flawed. Just like trickle down effect did not work in economic sector, it

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would also not happen in corruption either. There have been numerous cases when the top man was honest but he alone could not do much. A question is being raised that if you put such large number of people in anti-corruption set up, how would you ensure their integrity? The integrity of an organization does not depend upon the size of that organization. It depends upon its internal systems. CVC has a staff size of just 232 people. But CVC has been ineffective. In sharp contrast, Delhi metro, with a staff size of 7000 people, has delivered world class metro - only because Delhi Metro has better systems. Mr Sreedharan put the right systems in place. If his successor continues with the same systems, Delhi Metro would continue to deliver. Unfortunately, all the systemic changes that we had suggested to ensure the integrity of Lokpal institution have been rejected by the government. India has a classic anti-corruption system with completely fractured mandate. In the same case of corruption, the departmental vigilance wing enquires into the role of junior officials, CVC enquires into the role of senior officials, CBI investigates the criminal aspect of that case and in states, the Lokayuktas enquire into the role of a politician all enquiries and investigations take place in the same case. It is the sure way of killing any case. Junior officers, senior officers, bureaucrats and politicians do not indulge in corruption separately. Firstly, this kind of fractured mandate creates confusion. No agency gets access to all records. Secondly, enquiries and investigations into any case goes on and on for years. For instance, in street lighting case of Common Wealth Games case, first an enquiry was done by CVC, then CBI investigated into the same case and then it was again enquired into by Shunglu committee. Thirdly, if two agencies arrive at conflicting conclusions on the same case, it only weakens the case against corrupt people. By creating yet another agency called Lokpal to deal with only politicians or senior bureaucrats, we will further fracture the mandate. Rather than check corruption, this system would create further mess and end up helping the corrupt. None of the top ten countries on integrity appearing on the list of Transparency International have such fractured mandates. They just have one anti-corruption agency to deal with corruption at all levels. Other agencies, if any, just provide support like research etc to the main anti-corruption agency.

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Annexure 6

What kind of model should Lokpal be?

Wont bringing all officers and politicians make Lokpal unwieldy? Would it be able to handle so many cases? Wont it die under its own weight? These questions have been raised by many people. It depends upon our vision of Lokpal or what kind of model do we have in mind? There are two types of models possible.

Governments vision:
Government is looking at Lokpal as an 11 member body, which will pass all orders either collectively or in benches like Supreme Court or High Court. There would be many types of orders to be passed in each case granting permission to register cases, granting sanction for prosecution, making recommendations for departmental penalties, freezing assets of accused, issuing arrest warrants, issuing warrants for search and seizure etc. In addition, the Lokpal members would also be required to supervise and administer. If this model were accepted, Lokpal would collapse within a few days.

Our suggestion:
In contrast, what we have in mind is a comprehensive anti-corruption system capable of enforcing the Prevention of Corruption Act. Such a system does not exist in our country at present. Lokpal members will not directly deal with any case. They will have a machinery under them which will deal with the cases. In order to deal with high profile cases, they can have certain number of special investigative units directly under their control. But the rest of the machinery will receive and investigate smaller cases. For instance, it would be wrong to say that the Chairman of Central Board of Direct Taxes (CBDT) should not be given the responsibility of handling income tax returns of 3 crore tax payers as he would get flooded with work and would not be able to deal with high profile tax evaders. But he does not deal with individual tax returns himself. There is a huge machinery that works under him. Likewise, it is incorrect to say that Director of CBI gets flooded with complaints of corruption and thus, is incapable of dealing with high profile cases. CBI has more than 1600 investigation officers who do the investigations. The Director of the CBI neither receives nor investigates complaints personally.

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Likewise, Lokpal Chairperson or members will not directly receive complaints. The institution, at various levels will receive complaints and investigate them. Will Lokpal become unwieldy? No, our estimates show that its workforce may not exceed 15,000 people, which is a middle sized government department. So, according to the model that we are suggesting, Lokpal would have quasi judicial powers in some high profile cases or against judges and ministers, which the members may like to monitor personally, but largely, it will supervise a comprehensive anti-corruption system.

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Annexure 7

Rather than government corruption, is the Governments Lokpal bill directed against those who raise their voice against corruption?
Lokpal will have jurisdiction over a fraction of government employees in the country but all movements, and citizens groups across the country. Out of 4 million central government employees, Lokpal would have jurisdiction over 65,000 Group A officers only. Government resisted bringing all central government employees within Lokpals jurisdiction saying that would make Lokpal unwieldy. However, on the other hand, Governments Lokpal will have jurisdiction over all movements, NGOs, citizen groups in the country - whether small or big, whether in state or at centre. Even unregistered groups of people in remote villages are covered under the ambit of Lokpal. So, in a remote village, if a group of youngsters detect corruption in panchayat works using RTI, Lokpal would not have jurisdiction over Sarpanch, BDO and their corruption but Lokpal would have jurisdiction over the youngsters. Whereas Lokpal would not have jurisdiction over Delhi government or municipal officials, it would have jurisdiction over all RWAs and market associations in Delhi. All small neighborhood groups who raise donations to do Ramlila or Durga Puja would be under Lokpals scanner. Lokpal could haul up activists from any of the farmers, labours, anti-corruption, land, tribal or any other movements. All the movements whether registered or not, are under the jurisdiction of Lokpal. There would be several million unregistered groups across the country. Lokpal would have jurisdiction over all of them. No one can dispute the fact that corruption in NGOs needs to be addressed. But how can you leave most public servants out of Lokpals purview and bring all citizens groups upto village level within its purview?

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Annexure 8

Governments Lokpal Bill seeks to grant illegitimate protection to corrupt officials:

As soon as a citizen makes a complaint of corruption to Lokpal against any public servant, the government servant will have a right to file a cross complaint against the citizen straight to the special court, without any preliminary enquiry by any agency, that the complaint is false or frivolous. The government will provide free advocate to the government servant to file this case. The citizen will have to defend himself on his own in the special court! Where will the citizen get an advocate from? Will any citizen then dare make a complaint? Then there is stiffer punishment for the complainant than the corrupt government servant. If the Special Court concludes that the complaint is frivolous or false, the citizen faces a minimum of two years of punishment. But if the corruption charges against government servant are proved, there is a minimum of six months of punishment for the corrupt government servant!

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Annexure 9

Enquiry and investigation process:

The process of inquiry and investigations provided in Governments Lokpal Bill violates Criminal Procedure Code and provides illegitimate protection to corrupt officials. It makes a mockery of the entire investigation process and renders it ineffective. After preliminary enquiry, the accused will be given an opportunity of being heard before filing an FIR as to why an FIR should not be regd against him. After completion of investigations, again he will be given a hearing to explain why a case should not be filed against him in the court. During investigations, if investigations are to be started against any new persons, they would also be presented with all evidence against them and heard. This will seriously compromise investigations because till filing of chargesheet in the court, the investigations are often done in secrecy. Giving frequent hearings to accused will compromise that. Also, the names of witnesses and whistleblowers would get leaked and compromise their security. Such kind of investigation process does not exist anywhere else in the world. Have you ever heard of a case where a burglar was issued a show cause notice and asked why an FIR should not be regd against him?