Thursday, June 16, 2011

Lok Pal and the Prime Minister

The current debate about Lok Pal centers on whether the office of Prime Minister should be brought under the jurisdiction of Lok Pal. This issue figured prominently even in the consensus-building effort ‘Round Table on Lok Pal’ held in New Delhi, on April 24, 2011. The participants expressed strong views both in favour of and against, the inclusion of the Prime Minister.

Those participants having a rich public service experience at the highest levels cited the findings of the 4th Report of the 2nd Administrative Reforms Commission (ARC) and the National Commission for the Review of Working of Constitution (NCRWC) and recommended the exclusion of Prime Minister from the jurisdiction of Lokpal. They pointed out that the Prime Minister in the Westminster system occupies a pivotal position, and his / her accountability should be only to the Lok Sabha; and not any appointed authority. Any destabilization of the office of the Prime Minister could seriously undermine the stability of government and paralyze all administration. Even if the Prime Minister is exonerated fully after an enquiry by Lokpal, the damage done to the country would be considerable and irreversible.

However, several other participants strongly felt that the Prime Minister must be within the ambit of the Lokpal. They felt that public confidence in our political process has been eroded significantly, and it may be necessary to bring the Prime Minister within the purview of the Lokpal in order to restore public trust.


The demand for PM’s inclusion:

Those who believe that the Prime Minister’s conduct should be scrutinized by Lok Pal rightly argue that all public servants should be accountable. In a democracy, the citizen is the sovereign, and every public servant holds office to serve the citizens, spending tax money and exercising authority under the laws made on citizens’ behalf or under the Constitution which we, the people, gave unto ourselves. Therefore, no functionary, however high, should be exempt from scrutiny by Lok Pal. In constitutional theory, in the Westminster model, the PM is the first among equals in a Council of Ministers exercising collective responsibility. Therefore, whatever rules apply to other Ministers should apply to the Prime Minister as well.

However, there are deeper issues that need to be examined carefully.

The pivotal, unparalleled role of the PM:

While the PM’s office was merely the first among equals in conception, over time and particularly in India, the PM became the leader of the executive branch of the government. It is the function of the PM to lead and to coordinate in framing of policies, decision making and execution of those policies and decisions. The PM’s unchallenged authority and leadership are critical to ensure cohesion and sense of purpose in government, and to make our Constitutional scheme function in letter and spirit. The PM is accountable to the Parliament, and on his survival depends the survival of the government. In our Constitutional scheme of things, the PM is appointed on the basis of the President’s judgment of his commanding majority support in Parliament. All Ministers are then appointed only on the advice of the PM. The President cannot ordinarily dismiss the PM as long as he enjoys the majority support in the House of the People.

PM, not just another Minister or an MP:

But other Ministers are removed by the President at any time, on the advice of the PM. No reasons are required to be given by the PM for removal of such Ministers. They must enjoy the confidence of the PM in order to hold office as Ministers. This scheme has been deliberately introduced in our Constitution to preserve the authority of the PM, and to ensure cohesion and coordination in the functioning of the government.

If the PM’s conduct is open to formal scrutiny by extra-Parliamentary authorities, then the government’s viability is eroded and Parliament’s supremacy is in jeopardy. Any enquiry into a PM’s official conduct by any authority other than the Parliament would severely undermine the PM’s capacity to lead the government. Such weakening of the PM’s authority would surely lead to serious failure of governance and lack of harmony and coordination and goes against public interest.

Therefore, those who argue that the PM is like any other Member of Parliament or any other Minister are only technically correct.

In reality, in all countries following the Parliamentary executive model drawing Cabinet from the legislature, the PM became the leader of the country and the government.

The authority of the PM, as long as he enjoys Parliamentary support, has become synonymous with the nation’s dignity and prestige. A PM facing formal enquiry by a Lok Pal would cripple the government. One can argue that such an enquiry gives the opportunity to the incumbent to defend himself against baseless charges and clear his name. But the fact is, once there is a formal enquiry by a Lok Pal on charges, however baseless they are, the PM’s authority is severely eroded, and the government will be paralyzed. Subsequent exoneration of the PM cannot undo the damage done to the country or to the office of the PM.

We should note that, there is no provision to impose President’s rule in the Union. In case of states, Article 356 provides for a mechanism to ward off instability or collapse in a state. But in the Union, we always need a strong and viable Council of Ministers headed by PM. Therefore, any roving enquiry by a Lokpal into the conduct of PM himself will leave the country vulnerable, and may even geopardize national security.

It could be argued that since any minister could be removed on PM’s advice or Parliament as well, Lok Pal need not have jurisdiction on a Minster’s conduct also. But Parliament does not really sit in judgment of a Minister’s conduct. It is the PM and the Council of Ministers as a whole whose fate is determined by Parliament’s will. And the PM does not have the time or energy to personally investigate the conduct of a Minister. The government’s investigative agencies are controlled or influenced by the Ministers, and therefore it is hard for the PM to get objective assessment of the Minister’s official conduct. Therefore, an independent, impartial body of high standing would be of great value in enforcing high standards of ethical conduct among Ministers. A similar reasoning applies to MPs, since Parliament’s time and energies cannot be consumed by detailed investigations into individual conduct. But the final decision of removing the Member must vest in Parliament, and that removal of a Minister must be on the advice of the PM. The Parliament is responsible to the nation for its decisions, and the PM is responsible to the Parliament.

While the PM is yet another member of the Parliament in theory, political evolution has transformed him into the leader of the nation. Theoretically, each member of the legislature is elected by his constituents in our model of government. But over the past century, elections even in parliamentary system have become plebiscitary in nature. Most often, the PM’s personality, vision, and leadership are the issues which determine electoral outcomes. Similarly, the opposition focuses its energies and hopes on its leader. The electoral contest is transformed into a test of acceptability of the leaders. The constituency contests have thus become increasingly dependent on the larger question of whose governmental leadership people trust or seek at that point of time.


PM accountable to Parliament:

Given this overwhelming political reality, it would be extremely unwise to subject the PM’s office to a prolonged public enquiry by any unelected functionary. However, this does not mean granting blanket immunity to the PM.

The Parliament is the best forum we can trust to enforce the integrity of the office of the PM: If the PM is indeed guilty of serious indiscretions, the Parliament should be the judge of the matter, and the Lok Sabha should remove the PM from office. No lengthy enquiry or impeachment are therefore contemplated in our scheme of things, and a mere passing of no-confident motion without assigning reasons is sufficient to change government. In the directly elected executive model of government, the Parliament cannot remove the President who is the Chief Executive, and therefore a complex process of impeachment, and an enquiry by Special Prosecutors to precede such an impeachment have become necessary.

Therefore, the Lok Pal Round Table was of the opinion that, on the balance, this issue should best be left to the wisdom of the Parliament. However, the Round Table was of the unanimous view that all other ministers and senior officials, including those directly associated with the Prime Minister’s Office should be brought within the purview of Lokpal’s jurisdiction.

Finally, don’t exclude the CMs!

But Chief Ministers should be brought under the jurisdiction of Lokpal at the national level, because in States there is much less risk of a government being paralyzed if a Chief Minister is under investigation / enquiry.

In a crisis situation in a state, if the government cannot be carried in accordance with the provisions of the Constitution, the President may invoke the provisions of Article 356. Therefore, the balance of convenience lies in bringing the Chief Ministers within the purview of an independent anti-corruption authority, but at the national level (i.e. Lokpal).

21 comments:

  1. Banwari Lal SharmaJune 17, 2011 at 12:54 AM

    Lokpal will be appointed by the President. There will be agroup of persons who will rcomend the name/names of the person/persons to be appointed as Lokpal/Lokpals. These persons may include Judges/ retd jdges, Polticians,Retired civil servants, eminent persons etc. etc.And who will appoint/select them? Anoher group of persons, and so on, but the process will start(from) and end(to) on the instance/recomendation of the Prime Minister, and rightly so.We have to have faith at least in one person.A person selected by agroup of people (who-ever they may be) can not undermine rhe authrity of the leader of the parliament (Who represent whole of the nation). Another question is of sovereignty,The Prime Minster excercises the sovereign powers (Through President of India), at least there should be a person to show that ours is a sovereign country. Lokpal can never have an authority over and above the Prime Minister. Now the question arises, if a dis-honest person becomes the Prime Minister of India what will be the consequencs in case he is kept out of perview of Lokpal? If the parliament bears it the country shall have to bear with it. It is the parliamentry system of government.

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  2. My dear countrymen LokPal Committee of Govt side has crook Kapil, dhongi Pranabda, Oily Moily, Khurrshid, and criminal Chidambaram. In today's news papers famous Journalist M. J. Akbar has written that Chidambaram also made lot of money ( a few thousand crores of Rupees) in the 2G scandal. Akbar says he has documentary proof and transcript of phone calls among Radia, A.Raja, Chidambaram and Kanimozi. So dear Annasaheb Hazare please demand that Chidambaram should be immediately removed from the Committee, should be arrested and put in the jail in the the cell next to Kanimozi.

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  3. So, Silvio Berlusconi, being Prime Minister and the head of Italian government can abuse his power and coerce minor girls to have sex with him and he can abuse his powers; but prosecuting him will be wrong.

    I do not think Dr JP could argue like this. It is utter stupidity to say that PM should be above the law of corruption. Imagine a corrupt PM elected by people of this country without the knowledge that he would abuse his office, would the same people like him to continue in power if he is proven to be corrupt? Lokpal is not there to meddle with PM everyday, only when there is a prima facie case LOkpal can intervene. Even then PM can resort to Supreme court if he believes he is targetted wrongly.

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  4. Mr Vinod,
    you are arguing what if PM becomes corrupt??
    I am asking What if lokpal becomes corrupt??
    do you suggest one more lokpal to lokpal???

    Real solution is in the election of PM.we have to choose correct party which can give honest PM...

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  5. Dr. JP your reasoning to not include the PM under the ambit of Lokpal may be theoretically correct but it is not practically viable. Your argument centers around the premise that the collective authority of the parliament will take care of everything but in practice we see only unpatriotic amorous thugs, criminals and culprits filling the benches of the so called "sacred" parliament and how would you expect these crooks to question the bad conduct of the government?
    I agree our parliamentary system is well designed but it was bases on the assumption that only honest members will walk on the floors of the parliament. But in reality we see otherwise which is why we are in the current chaos. So what is the panacea? The cure is to elect only honest people to the parliament. How do we elect if honest citizens are not contesting elections? Give them opportunity to contest. How? We have to do two things to accomplish that.
    First and foremost - Culprits are attracted to the parliament and government by the money and power they could lay their hands on. Just remove money and power from the government. How? Having the top bureaucrats appointed by and reporting to the individual ministers or small group called "the cabinet" always provides opportunity to appoint those who are pliable; there by opening the doors for corruption. Good example will be the secretaries who are in Tihar along with Raja. So have them collectively appointed by the parliament and have them report to a collective parliament. Let the government be responsible for creating the laws, policies, social welfare schemes, planning and monitoring the the functioning of the bureaucrats and bringing them in front of the parliament in case of wrong doings. This will give the bureaucrats the much required freedom to operate honestly. Since there is no money and power involved, these thugs will never venture in to politics; thus paving the way for honest people to play a role.
    Secondly - Elections should be state funded. I know there are a lot of questions like how to we prevent non serious contestants? How much to fund? What is the source of the fund? etc. I have thought about that and share my ideas with any one who is willing to know. It will be too much to write in this column. Those honest and patriotic citizens but not rich enough to spend money will be encouraged and participate in our electoral process. Eventually we will see healthy minds with honest goals reaching the parliament and assemblies. At that point, we will be able to say we don't need Lokpal and the PM under it. NOT TILL WE MAKE THOSE CHANGES.

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  6. An unsound argument that Lokpal system is above Parliamentary Democracy and PM is being spread by some unintelligent men. Not only it is a lie but a dangerous lie. Lokpal has nothing in its armour that can unsettle the government or PM, unless there is a Prima Facie Case against some minister or PM. If Lokpal officers appears to be corrupt, there are clear mechanisms to undo them, so where is the question of they turning out to be dictators. And all decisions of Lokpal can be challenged in the court of Law anyways. It is a dangerous lie being spread by even intelligent people. And the truth is Jan Lokpal is not asking any more powers to Lokpal than what CBI already have to investigate a case.

    Why is the government so insistent that Lokpal should not have atleast similar investigative powers as that of CBI? Currently CBI can investigate PM, so then, why should Lokpal be not able to investigate PM?

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  7. Vinod,
    If I am correct Jan Lokpal bill proposed by Anna Hazare, Kiran Bedi and other social workers are asking for more powers than CBI has. They are asking powers of almost the parallel government including the powers of court, which obviously CBI does not have. UPA government rejected this saying, it leads to parallel government.

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  8. Dear Anonymous,
    What is wrong in granting more powers? The corruption we have been seeing is at such high places that no one can punish them. Tell me a situation where a high profile person was ever punished in India. Raja and Kalmadi can be cited but does that mean there was no corruption before them?
    Unless we change our system as I discussed above to separate the bureaucracy and politicians and install state funded elections, we are not going to have corruption free government. That will be the best and right option than Lokpal. In the absence of effort to create any such changes, we need autonomous Lokpal till then.

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  9. I give more preference to Democracy, and I want Democracy is at the top of everything. If you think, you want something on top of democracy, then there is no use of discussing further.

    Anyway, if people are electing corrupted leaders, it means, they want corrupted leaders. Who are you or me to tell that, we should not have corruption? If few people can force something on the country, then it is not democracy. It is dictatorship. You may think that, this kind of dictatorship is good. But, I don't want that. I want pure democracy.

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  10. Dear Anonymous,
    We have been living with democracy for the past 64 years and we know how efficient and honest our governance is. People are electing corrupt thugs because they do not have any other option. Say for example, they voted Karunanidhi out and elected Jayalalitha in Tamil Nadu. That does not mean Jayalalitha is honest and sacred. She is equally corrupt or at least her past records and current indications tell that she is not honest. I have seen a lot of comments that our country has progressed a lot in the 64 years despite all the corruption. I think that is a short sighted opinion. I assume they look at the nuclear bombs, satellites, technological advances, missiles etc to make that call. But the standard of living of the common man is the same or worse than it used to be. Also without corruption we could have scaled more heights than what we have achieved. So saying "we have progressed despite the corruption and we do not have to worry about it" is a kind of like closing one's eyes and not willing to look at the obvious.

    Best thing to do is
    1. to drive away dishonest elements from politics by moving power and money from the clutches of individuals (ministers and cabinet) to collective authority (parliament and assembly)
    2. above step will drive dishonest elements and attract honest and patriotic individuals to contest elections. We should also implement state funded elections so that no one will consider politics as investment to reap benefits.

    In the absence of the above changes, Lokpal is our next best option

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  11. "If the PM is indeed guilty of serious indiscretions, the Parliament should be the judge of the matter, and the Lok Sabha should remove the PM from office"

    This is from Dr.JP's article above. How many honestly believe this is happening and this will happen in the future? I suspect even Dr.JP can stand by this with conviction. Why is this happening or not happening? Intrusion of dishonest elements in to the parliament attracted by money and power. More over, freedom of speech and expression is stifled even in our parliament by the unconstitutional law disqualifying the members if they voted against the party whip. How would one expect democracy to by guarded by Parliament when we do not have the right environment to nurture healthy and honest souls in Parliament?
    We either changes these undemocratic, unconstitutional scenarios or install Lokpal

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  12. Just because the democracy has not been working, I don't want dictatorship. Because, if democracy itself did not work, I don't think dictatorship will ever work.

    Who says there are no options in electing the candidates? In most of the elections, there are more than 10 candidates contesting, and why do you think, there are only two parties? In TN, is there no other candidate contested from other parties or as independent? If there is no candidate, why cannot they contest themselves? If people want to suffer, they will suffer.

    I don't think corruption is the actual problem. It is the economic policies of the state and country, that are hindering the state. At any time, I would prefer the corrupted government of P.V.Narasimha Rao rather than the uncorrupted government of Nehru. It is the policies of Nehru and Indira Gandhi that made the country so backwards. Only because of the free market economics of P.V.Narasimha Rao and Vajpayee, we have been in a better shape when compared to 20 years back. Without changing the system and policies, if we just try to reduce the corruption, that will hinder the development and we will never make progress.

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  13. What do you think is going on in India now? Do you think Manmohan is ruling? Or is he the benami being operated by a non elected person? Was there democracy when Karunanidhi was ruling TN? No one can sell their lands without his family's permissions. It was an elected government.
    Dear Anonymous.. I respect your love and dedication for democracy. If you think you have democracy just by voting and still let these things happen, I am sorry, no one can help India.
    I am not sure where you got the idea that Lokpal is dictatorship. Please be open minded, try to understand the situation and see the state of our state. Every one needs to be ideological and please understand Lokpal is not going to infringe any one's ideology.

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  14. Probably, except BJP and communists, in all other parties, one single person/family rules. People knew all these and voted for Congress. That means, they are fine with single person/family ruling.

    What is your definition of democracy? My definition is simple. People electing the candidates/parties that they want, and they are ruling. People elected Karunanidhi and he became CM. Was it not democracy? In 2004, Congress projected as if Sonia Gandhi would become PM. In the last minute, they brought in Manmohan Singh. Sonia Gandhi ruled indirectly through Manmohan Singh. Still, people elected Congress again. It means, people are fine with Sonia Gandhi ruling indirectly. Why do you think democracy is not there in this? In my opinion, Democracy is not there in India only between June 1975- March 1977. At all other times, there is democracy.

    In democracy, Whomever the people elect must be supreme. If there is anybody on top of him/her to verify each and every small thing, then I would consider it as dictactorship, because, it can potentially lead to Dictatorship. I don't mind PM doing corruption as long as the development that he/she brings is much more than the loss because of corruption. There are so many allegations on the congress leaders in P.V.Narasimha Rao government including P.V. himself. But, the development that, P.V. brought is invaluable and the corruption is negligible. Similarly, there are hardly any corruption charges on the cabinet of Nehru. But, they caused the country to go backwards. If we bring lokpal, and stop leader like P.V. in the name of corruption, then that will do no good for the country.

    Instead of bringing the lokpal bill, bring the bill of liberalizing Education and transport in India. That will be 100 times more beneficial for India.

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  15. Did Congress say Sonia is going to rule from behind the scenes prior to the election and people elected MMS based on that? What if tomorrow Ayman al-Zawahiri does the same thing?
    Lokpal is not meant to rule India, dear friend. If you think so, please read and understand it in more detail. It is supposed to be an autonomous constitutional body to be a watch dog for honesty in public life. It is a simple fact that the thief can not police himself. How do you expect our politicians to police themselves? So it is natural that a totally different body is necessary. Why do we have a constitutionally independent Comptroller and Auditory General? Why can't the Government itself audit its work and certify that everything is fine? Why did the Constitution create an autonomouns CAG?

    My friend, rest assured. Lokpal is not a parallel government. I don't understand where you got that view. If critical constitutional positions like CJI of SC, Election Commission, CAG etc could be appointed instead of being elected, then Lokpal could also be appointed.


    "I don't mind PM doing corruption as long as the development that he/she brings is much more than the loss because of corruption. There are so many allegations on the congress leaders in P.V.Narasimha Rao government including P.V. himself. But, the development that, P.V. brought is invaluable and the corruption is negligible." - How do you quantify and compare the benefits with and without corruption? Has the life of common man improved because of these changes? There may be more cell phones, televisions and cars but the day to day life of a common man is still the same... pay bribe every where. Friend look outside our country how people are living, the comforts they have, the lifestyle they have, the self respect they get. We need to yearn for such things for us too. We know corruption is a such a big obstacle to the development of our country which needs to be stopped at any cost immediately. My dear friend, be rest assured. Lokpal is not a parallel government. Neither is it envisaged to be one. It is expected to be a constitutional body in lines of CJI, Election Commissioner and CAG.
    There is a saying in Tamil - If a cat closes its eyes and says the universe is dark, no one can help. It needs to open its eyes.

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  16. Fathers of our Constitution envisioned all the scenarios except the current one our democracy is in where the fence itself is eating the goat!! If they did they certainly would have created Lokpal on par with the SC, CAG and Election Commission.
    Remember setting up just Lokpal is not going to be the cure for the illness. There are a lot more reforms that need to be done -
    1. Power to the people to recall their representatives
    2. Making the bureaucracy answerable to a collective authority viz the parliament/assembly instead of individuals
    3. State funded elections
    4. Town hall meetings between the candidates and the voters.
    5. Computerizing all the government departments and reducing personal interaction between the public and government employees
    6. Making the government as much transparent as possible.
    7. Removing the law that punishes the MPs and MLAs if they voted against their party whip

    So Lokpal is just the first step, friend. No one expects everything to be rosy after Lokpal!!

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  17. The current point of disagreement is the prosecution power of Lokpal proposed by the Civil Society. Let us look at other Constitutional bodies. For example CAG does not have prosecution authority. It has investigative and reporting authority. Parliament is the final authority to act on its recommendations there by democracy is followed. Lokpal does need prosecution powers to a certain extent till the principles of democracy are not violated. It may be provided with investigative and prosecution powers for cases with every one except PM and CJI. It should still have investigative powers for cases with PM and CJI but it should report its findings to the parliament for further action there by abiding by the democratic principles. In case, its findings against the PM and CJI are true and for some reason Parliament is not willing to punish CJI or PM, then it should have the powers to appeal to the President of India and even to call for a public referendum in case the President does not take action.
    We may have to make it more democratic and responsible but at the same time we should give enough freedom and powers to meet its responsibilities.

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  18. Please read Dr. JP's letter to PM that has important issues than PM and media is ignoring.

    http://news.loksatta.org/2011/06/drjps-letter-to-prime-minister-on.html

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  19. "The draft Bill on Lokpal rightly excludes the Prime Minister from the purview of Lokpal. The Second Administrative Reforms Commission, the National Commission to Review the Working of the Constitution, and several eminent experts who held high Constitutional office have argued that Prime Minister occupies a pivotal position in our Parliamentary democracy." - Agreed.
    "They recommended that the Prime Minister should be accountable only to Parliament and not to any extra-Parliamentary institution in order to protect the stability of the country and preserve the authority of Parliament." - Agreed but is that recommendation made based on the assumption that the PM is always going to be honest? How is a majority party in the parliament expected to investigate and convict its own PM? who is going to investigate scandals and corruption issues with PM and his departments? I don't see answers to these questions. I accept the wisdom of those learned people but we, the citizens of India, should need answers to these questions. One way we could make the Lokpal not violate the accountability of the PM to the parliament and at the same time have an independent body investigate would be to have the Lokpal investigate the PM but lay out the facts/evidences in front of the parliament for conviction if the accusation is proven. If the parliament is not taking any action, the Lokpal should have the authority to appeal to the President and even to call for a referendum from the Citizens.

    I see some great suggestions like the Lokpal law should include the state Lokayktas and integrating investigating agencies at the central, state and local level. All we want is to make sure everything is covered when the law is enacted. Nothing, including the PM, left behind.

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  20. Please read this concern from one of the ex ministers. Why didn't the PM direct the CBI to investigate this issue? The concern was not from some insignificant person. It was from one of his colleagues. If Lokpal was there, Aiyar could have somehow started the investigation. Why is everyone including Dr.JP and all the luminaries show a blind eye to such obvious and gross misconducts? Here is a proven case where the PM was ignoring, if not colluding with the perpetrator, the scandal.
    http://indiatoday.intoday.in/site/story/prime-minister-ignored-mani-shankars-letters-warning-cwg-scam/1/143343.html

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  21. Hope Dr. JP and others who are not in favor of bringing the PM under ambit of Lokpal would have, by this time, read the news about the Supreme Court talking over the investigation of black money. Does it not mean the PM and PMO is failing its duty? Is it intentional or procedural? To me it looks more intentional.
    Of late, we are seeing the Supreme court intervening and taking over a lot of the responsibilities of the executive branch. Is the Supreme court a democratic body? It is not. It is a constitutional body and it still is investigating all these scandals which may or may not end up with the PM/PMO. So what is wrong with entrusting Lokpal with that responsibility? That will take this load of work off of Supreme court's shoulders and will let it focus on cases.
    With the intervention of supreme court, in all these cases that it took over, has the PM become defunct as you claim. Come on. Please open your eyes and see the ground realities. Support the cause to include every one on the Indian soil to come under Lokpal.
    I am happy that the deeds of the government are making the case of the civil society stronger and stronger.
    One fact every one forgets is that the constitution is not set on hard stone. It was created by the wise men with the knowledge, experience and belief they had 60 years ago. Unless the constitution evolves with the change in time, it is bound to end up being a piece of paper!!

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