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Lokpal: Where Do We Stand Now, and How We Got Here

Both civil society and government have travelled a long way on the Lokpal Bill. The official Bill is a much improved version of earlier efforts. Most of the key elements for a strong and effective law are in place. What remain are differences on whether the Lokpal should cover all civil servants, at the centre and the states, and whether the office should also redress public grievances. A huge Lokpal will lose focus and itself become an oppressor; a more nuanced approach is thus called for. Civil society groups need to bridge their differences and carry the Bill through its last stage.

COMMENTARY

Lokpal could not commence an inquiry with-

Lokpal: Where Do We Stand

out the recommendation of the presiding officer of Parliament, and worse, after finding

Now, and How We Got Here

the person guilty of corruption all that the

Lokpal could do was to inform Parliament and the prime minister.

Sriram Panchu

Both civil society and government have travelled a long way on the Lokpal Bill. The official Bill is a much improved version of earlier efforts. Most of the key elements for a strong and effective law are in place. What remain are differences on whether the Lokpal should cover all civil servants, at the centre and the states, and whether the office should also redress public grievances. A huge Lokpal will lose focus and itself become an oppressor; a more nuanced approach is thus called for. Civil society groups need to bridge their differences and carry the Bill through its last stage.

Sriram Panchu (srirampanchu5@gmail.com) is a senior advocate.

Economic & Political Weekly

EPW
october 8, 2011

E
arlier this year Anna Hazare commenced a fast to force the pace on legislation to control corruption. The outbreak of support for him made the government do something unprecedented; it constituted a drafting committee comprising its senior ministers and an equal number of Hazare’s nominees, which excluded some well-known civil society activists like Aruna Roy. Then followed several rounds of talks, some progress, draft bills prepared by the government and the Anna Hazare representatives which showed up significant differences, then a hardening of stands accompanied by bitter statements mostly from the Hazare team, and then a breakdown of talks. The doughty Hazare announced another fast; the government played into his hands by arresting him and watched in dismay as the thunderclap of protest echoed nationwide. Support for Hazare swelled with each passing day. With his throwing down the gauntlet and an imminent breakdown of his health, the government appeared to give in to his demands, and both Houses of Parliament expressed accord in general terms. Some flak is being exchanged between India against Corruption (the Hazare group’s public force) and the National Campaign for People’s Right to Information (ncpri) which has put forth its version of an appropriate Lokpal Bill that differs on material points from Hazare. The matter now rests with a parliamentary committee to consider all the draft bills. While the issue is off the front pages of news papers and the breaking news of tele vision (having been broken so many times it may be as well be called decimated news), a perspective analysis may be useful. The Lokpal Bill 2010 which the United Progressive Alliance government put forth was less than a half-hearted a ttempt to handle corruption. Among its many flaws, it covered only ministers and MPs and left government officers out of its scope; public servants were not allowed to make complaints; the

vol xlvI no 41

Improved Government Bill

Following the interaction with the Hazare team the government put forth its new Lokpal Bill, a considerable improvement over the previous one. The Lokpal is to have jurisdiction over senior civil ser vants and ministers, it will have its own investigative arm, no prior sanction is required for it to commence inquiry, it has its own team to prosecute offenders, special courts are to be set up for corruption cases, interim attachment of property of the accused is provided for, the loss caused by the act of corruption is to be assessed and recovered, and the expenses for the Lokpal are to be met from the Consolidated Fund of India thus assuring its indepen dent income. The Bill also provides for a citizen’s charter and a declaration of a ssets. The Anna Hazare group can justly take credit for such improvement, as can the government for accepting the lacunae in its first effort. That said, there remains divergence on these aspects. Notably, the punishment sought by Hazare is much higher; he wants it to increase in tandem with the rank of the accused, to go all the way to life imprisonment. There are few in the country who would disagree; indeed the fear of such retribution, coupled with deprival of assets gained by corruption, is probably going to make all the difference. Where a business entity is the beneficiary of the offence, it may face a fine of up to five times the loss caused to the public. The Hazare group wants the team selecting the Lokpal to have a greater composition of judges and former comptroller and auditor generals and chief election officers rather than ministers and parliamentary leaders; again, this will strike positive chords with most people, for reasons obvious. On the investigative front, the civil society group demands that the CBI as a whole come under the Lokpal.

Controversial Issues

The inclusion of three institutions – the j udiciary, MPs and the office of the prime minister – raised controversy. The first has been resolved; Anna’s team has agreed to

COMMENTARY

exclude the judges, provided Judicial Accountability Bill comes into being. Wisely so: the independence of this organ cannot be placed under strain; a Lokpal whose decisions are subject to judicial review cannot be allowed to subject the judiciary to its investigation. Such inclusion would not have passed constitutional scrutiny by the courts. That said, there is little doubt that the judiciary needs to be covered by an institution similar to the Lokpal that can investigate, prosecute and recover illgotten assets; that body may have an a ltered procedure and larger composition of judges. As regards MPs, they are protected by the Constitution in respect of anything said or any vote given in the House; Anna’s group may not be able to make headway here. As regards the prime minister, while practical reasons exist for exclusion emanating from the fear of destabilising government, it is difficult to resist the a rgument that no one should be beyond scrutiny for corrupt acts. Voices within the government and across the political spectrum argue for his inclusion; it is quite likely that this point will go to Hazare.

Three other major issues relating to the ambit of the Lokpal’s coverage have seen deep differences not just between the government and Hazare, but also with Aruna Roy’s team. On each of these, expectedly, Hazare wants the Lokpal to have the widest jurisdiction; the others want the body to be focused on corruption in high places, and different mechanisms to be devised for lower levels of corruption and other forms of misgovernance. In particular, the NCPRI has a more nuanced approach here. While the Hazare team may claim that the lead up to Parliament’s resolution shows that their stand has been accepted in toto, this will be resisted on the argument that Parliament has only accorded broad approval to bringing these categories under the anti-corruption scanner, not necessarily under the Lokpal as desired by the Anna team. It does seem necessary that there should be some more debate and discussion on these crucial aspects; after all, it cannot be denied that there was tremendous public pressure on the government and Parliament during the last days of the Hazare fast. A fuller consideration seems warranted, and should not be avoided on the argument that a parliamentary expression of the “sense of the House” constitutes a done deal on each aspect of every issue.

Overburdening the Lokpal

There can be no doubt that corruption exists at all levels of officialdom, and needs to be checked. However, a Lokpal hand ling all complaints of corruption will find itself overburdened with this huge task; this will make it lose its focus on high-level corruption. Separate treatment is required for the multicrore political and bureaucratic scamsters, rather than equating them with the village patwari and police constable. Bringing the top leadership under control is imperative now, and this cleansing will itself dramatically improve performance at the lower levels. Being the watchdog over senior officers is difficult but manageable, to oversee honesty of the entire lot of government officers will make the Lokpal unwieldy and inefficient. Moreover, there is a widely articulated and legitimate fear that an all-encompassing body will be gargantuan in size and power, a recipe for authoritarian abuse and which may even affect the constitutional scheme of governance. A wiser course will be to permit the Lokpal to f ocus on the top leadership, improve the Central Vigilance Commission (CVC) to handle corruption at the lower level, but with the rider that the Lokpal should exercise a s upervisory jurisdiction over the CVC and also have the power to itself take up such cases which have wider implications.

It makes little sense to have an anticorruption body at the centre, and not to have similar legislation for officers, ministers and legislators of the states. The argument has been advanced that the federal structure of the Constitution precludes Parliament legislating for the states. As has been ably pointed out by Shanti Bhushan, the former law minister, in an article published in The Hindu of 6 September 2011, an anti-corruption law for the entire country would fall within the domain of Parliament under the constitutional scheme of demarcation of legislative power. After all, the Prevention of Corruption Act, 1988 is a parliamentary enactment, and it covers all officers irrespective of whether they serve under central or state governments. There may thus not be much substance in this objection to the nationwide coverage of the Lokpal if its focus is on dealing with corruption.

Creating a Frankenstein?

The third sticky point seems to be on the citizen’s charter and redressal of grievances. Every public authority is to prepare a charter enumerating its duties to the citizen. Failure to perform such a duty invites punishment, and a direction to so perform. Such charters will come from every government department having any degree of interaction with the public – welfare schemes, the public distribution systems, police, railway tickets, road repair, and indeed most aspects of our lives. Monitoring this obligation is a task multifold larger than policing all civil servants. Fears expressed over one Lokpal overseeing all government servants for integrity will grow manifold when such a Lokpal oversees all government functioning. L ittle doubt that the term Frankenstein has found usage in this connection. Again here, handling complaints of non-performance of the charters will make the Lokpal lose its focus and effectiveness as an anti-corruption fighting body. It must be stressed, time and

ŽŽŬƐŽŶZĂďŝŶĚƌĂŶĂƚŚdĂŐŽƌĞϭϱϬzĞĂƌƐ¾ZĂďŝŶĚƌĂŶĂƚŚdĂŐŽƌĞ͗/ŵĂŐĞƐŽĨtŽŵĞŶ^ĞůĞĐƚĞĚWŽĞŵƐ͕:ĂĚƵ^ĂŚĂ;dƌĂŶƐůĂƚĞĚͿZƐ͘ϰϱϬ¾ZĂďŝŶĚƌĂŶĂƚŚdĂŐŽƌĞ͗WŽƌƚƌĂŝƚƐŽĨtŽŵĞŶ^ĞůĞĐƚĞĚ^ŚŽƌƚ^ƚŽƌŝĞƐ͕:ĂĚƵ^ĂŚĂ;dƌĂŶƐůĂƚĞĚͿZƐ͘ϲϬϬ¾dŚĞůƵƚĞ͗^ĞůĞĐƚĞĚWŽĞŵƐŽĨZĂďŝŶĚƌĂŶĂƚŚdĂŐŽƌĞ:ĂĚƵ^ĂŚĂ;dƌĂŶƐůĂƚĞĚͿZƐ͘ϴϱϬ¾^ŽŶŐƐŽĨZĂďŝŶĚƌĂŶĂƚŚdĂŐŽƌĞdƌĂŶƐĂůƚĞĚďLJ:ĂĚƵ^ĂŚĂZƐ͘ϯϱϬ¾ZĂďŝŶĚƌĂŶĂƚŚdĂŐŽƌĞ͗^ĞůĞĐƚĞĚtƌŝƚŝŶŐƐĨŽƌŚŝůĚƌĞŶ:ĂĚƵ^ĂŚĂ;dƌĂŶƐůĂƚĞĚͿZƐ͘ϮϱϬ^ŚŝƉƌĂWƵďůŝĐĂƚŝŽŶƐ͕WĂŶŬĂũĞŶƚƌĂůDĂƌŬĞƚ͕͘WĂƚƉĂƌŐĂŶũ͕ĞůŚŝϭϭϬϬϵϮdĞů͘ϮϮϮϯϲϭϱϮ͕ϮϮϮϯϱϭϱϮ͕ŝŶĨŽΛƐŚŝƉƌĂƉƵďůŝĐĂƚŝŽŶƐ͘ĐŽŵ͕ǁǁǁ͘ƐŚŝƉƌĂƉƵďůŝĐĂƚŝŽŶƐ͘ĐŽŵ

october 8, 2011 vol xlvI no 41

EPW
Economic Political Weekly

COMMENTARY

again, that the country needs a tough official to deal with corruption, that if this is not done well our development objectives will come to naught considering the magnitude of scams; the moral fibre of public life will plummet to below zero figures, and we will be ruled indefinitely by those who get into public office to misuse it. Therefore, while by all means we should recognise that lower level corruption should be tackled and public grievances should be redressed, we should not make the mistake of entrusting all these functions to one body, which will result in no task b eing well done, and the body itself b ecoming another source of our problems. A separate grievance redressal authority can provide the administrative relief for non-implementation of the charters, i ncluding punishment for wilful failure.

While a couple of points mentioned above would call for reconsideration by the Hazare team of its position, this would in no way detract from the enormous contribution made by them in placing the fight against corruption squarely in the forefront of the national agenda, showing the way with its focused draft and the achievement of getting government to a ccept most of its points.

In addition, there are some other aspects contained in the Jan Lokpal Bill of the Anna group which deserve mention. One is the protection to be given to whistle-blowers. Since the disclosures principally pertain to corruption in mega amounts and in high places, it stands to reason that the Lokpal itself should bring them under its protective umbrella. Another innovation to encourage disclosure is the power of the Lokpal to give immunity to the bribe-giver, if the information be true and he is willing to give up the i llegitimate benefit gained. Another wellthought-out set of practical measures is designed to combat the scrouge of well-meaning legislation – the tactics of delay in our courts. So Anna Hazare’s experts provide that the trial should be held on a day-to-day basis and should be completed within a maximum period of 12 months, that sufficient number of special courts will be set up exclusively for corruption trials, that the high courts will create special benches to speedily dispose of appeals within six months. (Yet another measure that may be thought of here is to mandate that the trial cannot be held up by filing appeals against any interim or procedural order.)

Economic Political Weekly

EPW
october 8, 2011

Systemic correction is also provided – apart from dealing with the individual offender, the Lokpal may take action to prevent the ongoing incidence of corruption; thus if the 2G scam was investigated early enough, further spectrum loss could have been averted. No government officer shall be eligible to take up jobs or assignments with organisations which he had dealt with in an official capacity. All contracts and property transactions of public authorities must be by public auction or tenders, unless specially warranted otherwise. These, as well as agreements dealing with natural resources, must be put up on a website. These aspects have received little public attention, but they are crucial in adding up to an effective anti-corruption body.

Transparency in Committee

The parliamentary committee now discussing all the draft bills should have a timeframe, it must give civil society representatives full opportunity to participate, and televise its meetings. Visual transparency is as important as access to the written word. The committee should realise that it does not have a clean slate to write upon, and except for a couple of matters, it has but to add flesh to the structure and scheme already agreed upon. However, the muscle is as important as the frame, and the devil is in the details, and there are any number of politicians and bureaucrats who would use every

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vol xlvI no 41

trick in the book to scuttle this enactment. Therefore civil society has to stay vigilant and focused. It has also to stay united.

Differences within Civil Society?

This last aspect is a source of worry. There are disturbing signs of discordant views and personal differences between members representing civil society. There are complaints of claims of proprietary rights of representing the public on the Lokpal issue. The space, forum and opportunity to debate and discuss seems restricted. Civil society groups deserve thanks for having done so much, but will not escape censure if they let their differences prejudice the common cause. And indeed it does not take much to resolve the points on which they are at issue. Longterm i nterests should be borne in mind, and there must be a willingness to give and take in order to move ahead. The adage that the best is the enemy of the good should be recalled to realise that stubborn refusal to compromise on anything less than what one deems perfect may only r esult in nothing being achieved. And there should be civility of discourse; we have seen exchanges and expressions which do only harm and no good. As m ediators say, “don’t poison the well from which you must drink to get your settlement”. India has an unparalleled opportunity to come up with an anti-corruption law which will detect, punish and deter. Let us not lose it.

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