Sunday, August 28, 2011

Say No to Janlokpal Bill



While we can all celebrate the huge outpouring of the otherwise indifferent youth of India onto the streets triggered by Anna Hazare Movement, and become happy that this movement has singlehandedly woken up the apathetic Government of India to take up the battle against corruption quite seriously, let’s not go overboard and accept Janlokpal Bill.  The draft bill from these activists, the self-appointed guardians of Indian society, whose elitist speeches and attitudes find their way into the provisions of the bill, is as dangerous to India as the corruption itself, if not more.  In trying to fight one disease, let’s not install it with another.  If we adopt the bill imposed by these activists, we may be introducing a deadly cancer while attempting to fight the common cold.  


Jawaharlal Nehru, the first Prime Minister of India, became de facto leader of the nation after the death of Patel, and his ideas have permeated down into almost all institutions of India.  While we can be happy that Nehru did not become dictatorial, when he could have easily become one, his attitude that the central government is the biggest benefactor of the common man has created many a malaise in this country.  Freedom from British came tagged with a price of the bloody Partition of the subcontinent where nearly half a million people were murdered in the riots.  Patel, the Iron Man of India, aided by V P Menon, secured allegiance of nearly 550 princely kingdoms, mostly through negotiations and sometimes through force.  Though the country was eventually forged into one Union, it looked fragile, about to break into small pieces anytime.  Added to this problem was the vociferous demand from various regions seeking statehood on the basis of the language, which posed a threat of balkanization of the newly formed country.  Meanwhile the Tamils fought aggressively against the imposition of Hindi as the national language and warned of secession from India forever removing the hope that this country could be united on one language. 

Battling these seemingly disintegrating struggles within and getting impressed by the Russian experiment of a strong state administration, Nehru started to put faith in the benevolence of a strong central government, partly because he was heading it, and mostly because he mistrusted the state governments and private institutions who he thought were more keen on securing their selfish interests rather than work towards unity of the country.   Nehru saw the central government as the caring mother, a protector and champion of freedoms and opportunities of the common man, while the states looked like quibbling kids.  This led to monopolizing most of the power in few central institutions which did not get checked and balanced the way they should have been.  Indira Gandhi rode on top of this established path and went further down to create an autocratic central government dismissing state governments at will.  She believed she was right while everyone was wrong.  She believed she imposed all those coercive methods in the greater interests of the nation and its people.  She did not suspect herself and her own institutions while she put everyone else behind bars.  These are the lessons we should not ignore in the current anti-corruption movement.

Janlokpal Bill mistrusts almost every organ of the Government of India and treats almost every elected leader and government official as a suspect while it exempts itself of any wrongdoing.  With this attitude, it arrogates itself many rights and powers which tend to undermine Indian democracy.  In an attempt to provide teeth to the new ombudsman, it ends up creating a Tyrannosaurus Rex, equipping it with fast legs, razor sharp teeth, fierce claws and a big appetite.

All-in-one body with no master

In their eagerness to solve all the problems of this nation in one stroke, the activists have come up with a childish dream with an elitist agenda.  Right out of the children’s comic books, they create a super sleuth, super cop, super judge with a license to take away your basic rights with zero accountability, all rolled into one.  That super character is called Lokpal - as promoted by Janlokpal Bill(s).

Lokpal will be the investigation agency:
“…anti-corruption branch of CBI… shall form part of the Investigation Wing of Lokpal.

Lokpal will be the police force:
“…Officers of Lokpal… shall have all the powers which are vested in a Police Officer…”
The investigative arm of “Delhi Special Police Establishment… shall stand transferred, along with its employees, assets and liabilities to Lokpal… The Central Government shall cease to have any control over the transferred part and its personnel…”

Lokpal can tap your phone or read your e-mail without taking any permission:
“…empowered to approve interception and monitoring of messages of data or voice transmitted through telephones, internet or any other medium…”

Lokpal can invade your home based on suspicion and break open your door or any safe:
“(i) enter and search any building or place where he has reason to suspect…”
“(ii) search any person who is reasonably suspected of concealing…”
“(iii) break open the lock of any door, box, locker safe, almirah or other receptacle… where the keys thereof are not available.”
“Seize any such property, document, money, bullion, jewellery…”

Lokpal will be the court:
The members of Lokpal or any officer under the Lokpal… shall have the powers of a civil court trying a suit under the Code of Civil Procedure, 1908…”
 “…punish a public servant with imprisonment up to 6 months…”

Lokpal will be free from any accountability or prosecution:
“No suit, prosecution, or other legal proceedings shall lie against the Chairperson or members or against any officer, employee, agency or person” of Lokpal. 
“… no proceedings or decision of the Lokpal shall be liable to be challenged, reviewed, quashed or called in question in any court of ordinary Civil Jurisdiction.’

While the Lokpal will hold no accountability to any office or agency in this country, and will remain unanswerable and un-prosecutable by any court in India, it will have all the rights to investigate and tap the communications of anyone, break open your door to enter your home, break open your safe, arrest you without taking permission from any other body, and prosecute you in their kangaroo courts to imprison you.  The newly created Lokpal will be an investigating agency, plus it will be a police station, plus it will be a court, plus it will not be answerable to anyone. 

We should strongly suspect any move which tries to centralize all the institutions into one giving it so many absolute powers.  A democracy runs effectively only when we create independent institutions that keep a check on each other.  That’s why we have executive, legislature and judiciary as three separate arms.  At no time shall we encourage all the three coming together under person – that’s when we create dictatorships.   The current institutions of CAG, CVC, and CBI have a role to play and if ever we need to fight corruption, we should strive to make these bodies more independent, giving them more power and autonomy.  Let’s realize this - Raja, Kanimozhi and Kalmadi are all in jail in spite of a Lokpal. 

In an attempt to overcome the weakness in the current institutions, Janlokpal Bill wants to replace them all with a new body that is assumed to be perfect and free from any corruption.  Such thinking is fundamentally flawed.  No single institution can be trusted completely with so much power.  That’s why we have separate democratic institutions with distributed powers working independently checking each other.  Moving all these institutions under one body is the most foolhardy thing we can do at this point of time. 

There is a reason why the police force and judiciary is not under one body.   If a police officer arrests you on false evidence, you can challenge it in the court.  Imagine this - the police officer who arrested you turns out to be the judge deciding your case. Janlokpal believes that it will be able to dole out justice efficiently this way.  If efficiency is the primary objective, then dictatorships happen to be the most effective. 

If you think that was the end of this comic book, the fairy tale does not end there.

Lokpal can transfer a government servant based on a suspicion of wrongdoing:
 “…issue appropriate directions including transfer of that government servant from that position.”

Lokpal can stop the decision of a government from implementation based on a suspicion:
“…may make any recommendation to the public authority concerned to stay the implementation or enforcement of any decision...”

And if the government authority rejects the recommendation of Lokpal, it can prosecute the officials:
“…approach the appropriate High Court for seeking appropriate directions to be given to the public authority.”

Imagine this - you can be prosecuted if even you fail to comply with a recommendation that might come out of mere suspicion. 

:-) 

I couldn’t help but put a smiley there because the bill only gets interesting and funnier, something that I could read out to my kids as a comic story.  The tragedy is that it is not a funny story, but is being pushed by millions of young and innocent Indians to be passed in the Indian Parliament to be made into a law.

Lokpal can confiscate private property just because the owner lied about it:
“If it is found that the public servant owns some property which was not disclosed in his statement of assets, that property would be liable to be confiscated by the Lokpal.”

Lokpal does not allow bail to a suspect: 
“Section 389(3) of CrPC shall not apply to offences under Prevention of Corruption Act.

Lokpal can confiscate private property just because the owner has failed to disclose it.  Lokpal denies bail to a suspect.  Even some dictatorships are more respectful of individual rights than this bill.  Or is it that these activists don't think that politicians and government officials are individuals with rights? 

Anyone in the right frame of mind would reject the Janlokpal Bill.  It may be wiser to tolerate corruption in this country than have this Janlokpal.  Using an innocent man who reminds us of Mahatma Gandhi as the mascot, these activists are pushing an autocratic bill into Indian democracy which portends to demolish all its cherished institutions.  

It is clear that these activists do not have respect for the legal procedures; they do not believe that a suspect has certain rights; and they do not have the patience to go through the rigor of a judicial system.   They want to bypass all the prescribed procedures to convict a corrupt official immediately, without giving the suspect the due legal recourse - looks like they are out to take some kind of revenge by punishing all the office holders in country.  They want to create a utopia where ‘perfect justice’ is doled out in five minutes like in a fast-food restaurant.

We must realize that all such endeavors to create perfect systems have failed in the history of mankind.  Communists thought they had a utopia written in a hand book, and so did Nazis. After many failed experiments, we realize now that there is no such a thing called perfect institution, perfect form of government or perfect solution to any complex social or political problem.  The bill proposed by these activists is beset by the same underlying attitude which created this gargantuan and heavily bureaucratic government in the first place- that there is a set of people or institutions who can be entrusted with absolute power, because they happen to be benevolent, most kind, perfectly honest and free from any kind of corruption, for all times of time.

We understand now that the only form of institution that works is the one which requires constant work- something which has checks and balances, something that does not have absolute powers, something that allows change, something that mistrusts itself.  A modern nation based on a constitutional and parliamentary democracy does not believe in creating a perfect society; it only strives to reduce the imperfections of the human societies, never attempting to completely eliminate them, because that is impossible.  Any attempt to root out corruption completely and permanently will be beset with the same problems it tries to combat.  We can only strive to reduce corruption so that a common man does not get affected by it, so that this nation chugs forward to create equal opportunity and prosperity to all its citizens unhindered by bad policies or complex bureaucracy.

We should not be eager or earnest to create a body that is not answerable to anyone and yet has absolute powers to break open anyone’s door, investigate anyone, prosecute anyone and then convict anyone. We will then create a Frankenstein monster that will eat up this democracy in one gobble.  Unbridled power corrupts, eventually.  Janlokpal bill comes with that power.  We should exercise caution, not get carried away by our patriotism, nationalism or jingoism.  Let’s make sure we create a Lokpal that incorporates the necessary checks and balances.   

As a step one, let’s debate. 

28 comments:

  1. Although I am inclined to agree with many of the concerns you have raised, I went through the draft posted on their website, I read it and searched for the words 'intercept' and 'internet' (as you have quoted above), and could not find matches, also the judiciary powers that you state the Lokpal has are only civil in nature and cannot lead to the imprisonment of any one (they are allowed to prosecute in our normal criminal courts though, that anyone can even today).. Please clarify and provide links to the source from where you have quoted..

    Original Link:
    http://www.annahazare.org/pdf/Jan%20lokpal%20bill%20by%20Expert%20%28Eng%29.pdf

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  2. Very well written,those who were involved in the protest must rethink

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  3. Your comment "..is being pushed by millions of young and innocent Indians.." is an insult of our very ability to understand Indian Democracy.We may not be as wise as you,but we are trying.If you can't appreciate our attempts; at-least don't generalize the facts.

    As of Jan-Lokpal Bill,it is widely accepted fact that there are some very critical faults in the bill,some of which are rightly pointed out by you.But I fear you covered one-sided analysis.Once again you blind-folded the positives.

    Read>"PPT on Lokpal"(http://www.indiaagainstcorruption.org/downloads.html)

    Because,
    1.latest I can read is team Anna is flexible on the design of the mechanism to be adopted to cover the bureaucracy.

    2.There seems no objection from team-A towards centre's decision on excluding CBI from the main path.So we can expect CBI to cover the charges that are not covered under lokpal.

    3.There was enough objection yesterday in the parliament on tapping the phones etc.(notably from Arun Jaitley)So because team-A has accepted house's resolution,we can conclude that team-A have digested the sour truth.

    4.As of Lokpal being court-there are provisions in the bill which does't give itself kangaroo form(refer PPT)

    5."Lokpal will be free from any accountability or prosecution" is a myth.(again refer PPT)

    7.Confiscating property-Isn't that something income-tax dept. follows?What is wrong and new with it?You expect tax-payer to speak the truth and penalize him if he doesn't do so.Then what is wrong in doing the same treatment with babus who handle tax-payer's money?

    At the end I can say even if it may seem a fairy tale to some people,we can't get away from the fact that same fairy tale has given us opportunity to think upon some morals.Morals which we always we dreamed of,fantasized of to exist in our country.Today,Anna breaking his fast with the hands of a dalit girl and a muslim girl is a signal for us to cash this opportunity at max.This time,lets just give it our best :-)

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  4. I liked your post very much. Very relevant nd informative. I've posted the article in my facebook group.
    http://www.facebook.com/groups/188065181259948/
    Thnxx.

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  5. Rohan Sehgal:

    In this article, I was referring to version 2.2 (released to media on 16 April 2011) and to version 2.3 (now available on indiaagainstcorruption.org
    I used them both in the above discussion.

    The one you cited on annahazare.org is version 1.8. To be honest, I find version 1.8 more ridiculous; and to give at least some credit to the activists, I did not use it in my discussion - though it would have made the article even more hilarious.

    Thanks.

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  6. Version 2.2 released to media:

    http://www.tehelka.com/story_main49.asp?filename=Ws160411CORRUPTION.asp

    http://www.deccanherald.com/content/154201/jan-lokpal-bill-version-22.html

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  7. I look at the Jan Lokpal bill in a totally different way from the way you look at it. Firstly, I don't consider corruption to be the common cold, and the Jan Lokpal bill to be the cancer - On the contrary, I consider corruption to be the cancer, and the Jan Lokpal bill to be the radiation therapy to cure us of this cancer.

    It is my fervent hope that the cancer afflicting us is not in such an advanced stage, that there is absolutely no hope for the patient. I hope that a few doses of Jan Lokpal therapy will cure us of this cancer. Maybe we might go through a tough time dealing with therapy - but it is still a small and temporary price to pay to get rid of the cancer.

    If there is a cancer, does a patient reject radiation therapy just because his/her hair will fall off? Just because there will be intense bouts of vomitting and loss of appetite? Just because there will be lots of negative consequences, and not 100% certainty of curing the cancer? A lot of the time, hope is the only thing that we can go on, and if that hope is lost, everything is lost.

    When people say, just legislation cannot solve the problem of corruption, I fully agree. There has to be sea change in the attitude of the people for there to be a lasting change. Will this happen? I don't know.

    However, one thing I do know. The problem is so drastic that it is no wonder that some people are complaining that the proposed solution is drastic! But what is the alternative?

    Most importantly, I strongly feel your objections to the Jan Lokpal bill are plain wrong. You are asking "What if Jan Lokpal provisions are misused?" "What if Jan Lokpal itself is corrupt?" "What if Jan Lokpal paralyses parliament?", "What if bringing PM under Jan Lokpal compromises security of the country?".

    I say, there are some checks and balances built into the Jan Lokpal. If more are required, we can debate them and add them. The Jan Lokpal bill is not cast in stone - there has been immense public debate and contributions, and several provisions of the bill have been changed after getting public opinion.

    Secondly, even if there is excess and misuse, atleast for first few years, you can be sure of one thing - Jan Lokpal will be operating under the spotlight of public and media attention. There will be intense scrutiny of whatever actions Jan Lokpal does.

    Thirdly, even if there is some excess, it is not guaranteed that the "cure will be worse than the disease". Lok Pal itself can only take cognizance of a complaint, investigate it, and approach the courts for legal action. So at worst, the only thing Lok Pal itself can do, is harassment. They cannot dole out punishment. Of course, even harassment can be extremely powerful weapon - but at least the courts act as natural checks and balance against any such actions by Jan Lokpal.

    Fourthly, even if there is some way by which Jan Lokpal can be misused, there are remedies available. It is not like as if nothing can be done. I remember when Congress misused its power to appoint Naveen Chawla as CEC - this is the sort of problem that most people are worried about the Jan Lokpal - what if the government can hijack a supposedly independent body like the Jan Lokpal, the way they did with Naveen Chawla - even in this worst case situation, time proved a solution. At some point, Naveen Chawla had to retire!

    The bigger worry for me, is how to prevent Naveen Chawla type situation - where the Jan Lokpal itself is hijacked. The only way to prevent such things, is by having stronger provisions, and greater independence - not by diluting provisions or lesser independence.

    Regards
    V L P

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  8. Lokpal can confiscate private property just because the owner lied about it:
    “If it is found that the public servant owns some property which was not disclosed in his statement of assets, that property would be liable to be confiscated by the Lokpal.”


    What's wrong with this? If they have some assets appearing magically and not declared, it's no longer a private property, but rather it's a public property made from public money. Let it come back to public.

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  9. Sujai, If you look at the Draft bill of Government
    It will also have almost all the same provisions as you are pointing out here with may be some extra riders.
    What do think about that ?
    May be we should say NO to every Lokpal Bill ;-)

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  10. Kamal:
    It will also have almost all the same provisions as you are pointing out here with may be some extra riders.
    What do think about that ?


    There are problems in the Government Bill as well. We should debate that. Absolute powers in one body without provisions for checks should be discouraged.

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  11. I am a no fan of Anna Hazare or Jan Lokpal Bill (JLB or Jalebi) per se. But the host should also make an attempt to compare the proposed power of Lokpal (within Jalebi) such as tap phone, search home etc. vis-a-vis the existing power of CBI.

    (I am told that) In principle CBI can also tap phones and search homes etc. But CBI gets it permission from the government. When one suspects arbitrary use of power by the CBI, one approaches judiciary and the judiciary has the power to intervene.

    Similarly, if the Lokpal is suspected to use power arbitrarily, one can approach the supreme court for intervention (or for removal of Lokpal member).

    I would like to know, if Lokpal is subject to RTI?

    Lokpal believes in retrieving financial loss to the state due to corrupt practices of public servant. Now, imagine, Lokpal makes an error of judgement (if not corruption) which leads to a financial loss to either an individual party (say a private company) or the government. And the supreme court finds Lokpal guilty. Does lokpal has to pay back the financial losses that occurred due to its negligence/corrupt practices? If so where from the Lokpal gets that money? It certainly cant use public money because that will make it public servant....

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  12. I am a no fan of Anna Hazare or Jan Lokpal Bill (JLB or Jalebi) per se. But the host should also make an attempt to compare the proposed power of Lokpal (within Jalebi) such as tap phone, search home etc. vis-a-vis the existing power of CBI.

    (I am told that) In principle CBI can also tap phones and search homes etc. But CBI gets it permission from the government. When one suspects arbitrary use of power by the CBI, one approaches judiciary and the judiciary has the power to intervene.

    Similarly, if the Lokpal is suspected to use power arbitrarily, one can approach the supreme court for intervention (or for removal of Lokpal member).

    I would like to know, if Lokpal is subject to RTI?

    Lokpal believes in retrieving financial loss to the state due to corrupt practices of public servant. Now, imagine, Lokpal makes an error of judgement (if not corruption) which leads to a financial loss to either an individual party (say a private company) or the government. And the supreme court finds Lokpal guilty. Does lokpal has to pay back the financial losses that occurred due to its negligence/corrupt practices? If so where from the Lokpal gets that money? It certainly cant use public money because that will make it public servant....

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  13. If Hazare is such a great patriot and leader who is anxious to fast for worthy causes- Why can't he orchestrate another movement where the parliament passes a bill by which anyone littering or dumping,spitting or peeing in the open will be jailed until he changes these habits..
    This is absolutely necessary to clean up Indian society

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  14. Sujai,

    Govt is already doing all the things you said

    -Phone tapping,Our govt is oficcially threatening blackberry,skype,and google to hand over encryption keys ,there is no privacy law for telecom in India, and do you think CBI asks permission before tapping someones phone?

    -Indian police does not need search warrants like in US ,they break in and enter whenever they want ,you cannot deny a policemen the right to search your home,they can do this without warrant,how is the lokpal different?

    -EC already has a law wherein a public servant can be debarred if the assests disclosed do not matchthe assests available,what is wrong with lokpal then,do you not see govt seizing assets of individual when they lie about their assests ,I suppose our tax codes already cover that

    all the brutalities you mention are done by the present govt's everyday in the name of 'national intrest' , at leats lokpal will have member who we can file cases against f such things happen

    now can I file a case against sachin pilot because he wants my encryption details ..

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  15. Telangana, Irom Sharmila's 10 year fast(and force-feeding), farmer suicide, female-foeticide, child sex- ratio- no one bothers about them. Neither the media nor the "educated" middle-class. Guess these are not "sexy" enough.

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  16. Overall, agree with the author.

    This agitation by Anna is a tight slap on the "great Indian democracy". One way or the other, lets face the fact - Corruption can't be truncated even a wee bit, unless we change the way we bring our children up :)

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  17. Times of India, 30 August 2011.
    Parliament is for people

    This sets the stage for the adoption of a strong and effective Lokpal Bill. This would require Parliament to discuss the really important questions regarding the Jan Lokpal draft that have not been adequately discussed, notably, the pitfalls of setting up a super-institution without proper checks and balances.

    Link:http://timesofindia.indiatimes.com/articleshow/9787032.cms

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  18. The Economist, August 27th 2011.
    Anti-corruption protests in India.
    No modern-day Mahatma

    ...Indians are right to be furious. Yet Mr Hazare and his followers could end up doing more harm than good...

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  19. "Don't mess with the middle class" by Mr. Swapan Dasgupta >> http://www.swapan55.com/2011/08/dont-mess-with-middle-class.html

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  20. sujai is only scared because he thinks that people like him who incite commnunal feelings and are involved in corrupt ideas and who corroborate with a thug like kodandaram ,will get caught.

    PEOPLE WHO VISIT THIS BLOG ARE STUPID,PIGS,THUGS,IDIOTS.

    ReplyDelete
  21. "PEOPLE WHO VISIT THIS BLOG ARE STUPID,PIGS,THUGS,IDIOTS."

    Self-realization is the first step towards self-actualization

    ReplyDelete
  22. "PEOPLE WHO VISIT THIS BLOG ARE STUPID,PIGS,THUGS,IDIOTS."

    Self-realization is the first step towards self-actualization

    Well said.

    And a step forward for a democracy free of tyrants.

    Democracy is not equality or equal opportunity as it is often misunderstood. Democracy is a system to avoid tyranny by one individual against an other - not one group against an other or one region against an other or a caste against an other.

    That is the fundamental blindness which runs this blog and which makes you say everyone is a PIG, STUPID, THUG, IDIOT etc.

    Don't fret and sweat - the owner of this blog does a better job than you of calling people names and insulting them.

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  23. you said 'The draft bill from these activists, the self-appointed guardians of Indian society, whose elitist speeches and attitudes find their way into the provisions of the bill, is as dangerous to India as the corruption itself, if not more. In trying to fight one disease, let’s not install it with another. If we adopt the bill imposed by these activists, we may be introducing a deadly cancer while attempting to fight the common cold'.
    well said!very well put!
    I see a parallel here.. if you appropriately substitute separate telangana activists in the above para ,the logic still holds good!

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  24. I see a parallel here.. if you appropriately substitute separate telangana activists in the above para ,the logic still holds good!

    No. It doesn't.

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  25. THE HINDU,
    05 Sep 2011

    The Lokpal and the CBI

    As one who has headed the CBI, I am totally against any dismemberment of the organisation. That would cause more harm than good to the objective of rooting out corruption.

    Link: http://www.thehindu.com/opinion/lead/article2424159.ece

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  26. THE HINDU
    05 Sep 2011

    Need to review parliamentary privilege: Aruna Roy

    While the Jan Lokpal formulation sought to create an anti-corruption regime with ‘excessive powers' that would override the democratic checks and balances, the Anti-Corruption Lokpal presented in Parliament was ‘dangerous' in that it allowed government control over the agency by granting government power to appoint and remove the Lokpals. “The Jan Lokpal also left out corporate groups, political parties, NGOs, professional groups, religious corruption and the like,” said Ms. Roy.

    Link: http://www.thehindu.com/news/national/article2424461.ece

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  27. haan bahut sahi aur sateek topic hai,tum log jaise kuch log sahi ho aur bade bade vakeel,commisioner,ips officer,journalist galat hain?aisa soch bhi kaisey sakte ho,ya tum news nahi dekhte ya phir tumhara attitude hai

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  28. Looks like the ruling class is safe in India forever and ever.
    Because Indians lost their backbone. It is missing in their DNA completely now. Reasons are plenty.
    For thousands of years, India ruled by foreigners.
    People are still scared of the few hundred elite political leaders. The are afraid of the Police, rich people, even visiting foreigners.
    After 7 decades of waiting and watching, one old guy is fasting for the rest 1.2 billion people. Another old guy is fighting in the slowest acting court system in the world. Read the history of other countries. Look at what is happening even in arab countries, former soviet union countries, why nothing changes in India forever and ever. Corruption is at the peak now. If you don't fight now? when will you? For our system and culture non-violenant protests are the best ways to go. Wake up and do at least that. If couple of old guys are doing it for you? why dont you join them instead of fighting based on petty issues like caste.

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