To:
The Lokpal Bill Panel
Bangalore Public Consultation
Respected Members of the Panel,
I understand that our public consultation is on the Lokpal Bill itself and not on corruption. However, I read in the papers that one of the points that has already been agreed upon in the last meeting of the panel is to “do away with” the need of “sanction for prosecution” by the Lokpal.
The very act of doing so indicates that this “sanction” is an impediment that has often ensured the guilty cannot be prosecuted. As far as I know, the original authority for this lies in Article 311 of the Constitution of India and is an aspect in IPC/CPC that inherits this.
In the process of this exception being sought to be done away with for the Lokpal, the question arises WHY is it left in the statute at all in its current form?
I ask this question as it is the tool that enables the “system” to offer protection to the bureaucrat who is willing to commit acts of omission and commission at the behest of the superiors who are ultimately the elected politicians in top jobs.
Amending Art 311 itself while passing the Lokpal Bill will remove this in-built protection inherited from the British who had it to serve their own purpose.
The amendment sought is to let the jurisdictional court decide if there is a prima facie case for investigation and / or prosecution.
If bureaucrats at the lowest levels know they could be hauled to court by Aam Admi, it will, in itself, place limits on his obduracy and acts of omission & commission directly benefitting the Aam Admi.
Extract of Article 311 is below for ready reference.
@jsvasan
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The article 311 acts as a safeguard to civil servants. It reads as under:
(1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges: Provided that where, it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed: Provided further that this clause shall not apply —
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or
(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.
(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final."
The procedure laid down in Article 311 is intended to assure, first, a measure of security of tenure to Government servants, who are covered by the Article and secondly to provide certain safeguards against arbitrary dismissal or removal of a Government servant or reduction to a lower rank. These provisions are enforceable in a court of law. Where there is an infringement of Article 311, the orders passed by the disciplinary authority are void ab-initio and in the eye of law "no more than a piece of waste paper" and the Government servant will be deemed to have continued in service or in the case of reduction in rank, in his previous post throughout. Article 311 is of the nature of a proviso to Article 310. The exercise of pleasure by the President under Article 310 is thus controlled and regulated by the provisions of Article 311
Ø It is suggested that in the course of the introduction of the Jan Lokpal Bill, that Article 311 itself be amended such that the right to ‘sanction to prosecute’ by a superior of the bureaucrat be transferred to the courts who may, after a primafacie review of the suit, accord or deny permission to prosecute. These judgments would also be liable to be appealed as any court verdict.
Thus as in the 2G scam, we wouldn’t have waited years before the culprits are brought to book.
Ø The IPC/CPC is subordinate to the Constitution & should also be amended.
@jsvasan
The real voyage of discovery consists not in seeking new landscapes but in having new eyes. – Marcel Proust