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Common Cause and Lokniti Programme of the Centre for the Study of Developing Societies (CSDS), launched India’s first Status of Policing in India Report (SPIR 2018) at the India Habitat Centre on May 9.

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JAN LOKPAL MOVEMENT UNDER ATTACK

Media Campaign to Discredit India Against Corruption Movement

 

The run-up to Anna Hazare’s indefinite fast for an effective Lokpal Bill and its aftermath brought to the fore a sharp divide within the media. While the electronic media was largely supportive of the India Against Corruption movement and contributed significantly to the dissemination of its message throughout the country and beyond its borders, the print media was generally hostile. A section of the English language press went overboard in denigrating the movement and its leaders. Its frustration and fury knew no bounds when the Government conceded the demand for a joint drafting panel for the Lokpal Bill. The Indian Express was in the forefront of the media campaign, giving the pride of place to a profusion of negative stories about the movement. The Hindustan Times abandoned all pretence of objectivity and claimed to have secured independent corroboration of the finding of the government forensic laboratory in Delhi to the effect that the CD of the alleged conversation between Mr Shanti Bhushan and Mr Mulayam Singh, in which the former offers to manage for a consideration a certain Supreme Court judge through his son, Prashant Bhushan, was genuine. Challenged to provide the details of the corroboration, The Hindustan Times demurred and had to suffer further embarrassment when the government forensic laboratory in Chandigarh found the same CD to have been tampered with. The bias of certain media houses against the India Against Corruption movement is evident from the prominence given to the views of the critics of the Jan Lokpal Bill and the marginalization of the opinion of its proponents. By way of illustration, we are reproducing below a highly derogatory editorial, which appeared in the Business Standard just after Anna Hazare commenced his indefinite fast, along with the counter argument offered by your editor. No prizes for guessing that the counter argument was not considered worthy of publication.

-Editor

Business Standard / New Delhi April 06, 2011, 0:21 IST

The Hazare hazard

Unelected do-gooders cannot arm-twist elected officials

Social activist Anna Hazare wants an equal number of self-proclaimed civil society activists to be part of an official committee drafting a new Lok Pal Bill. “There should be as many representatives of government as there are of the people” is his submission. Hello? What is a government in a democracy if not an extension of the will of the people? Can self-appointed do-gooders, however well meaning, usurp the role of “representatives of the people” without due process of election? Mr Hazare is a good man. Unfortunately, he is “fasting unto death” for a wrong cause. The idea of a Lok Pal, an anti-corruption ombudsman, based on a Scandinavian model, was a bad one when it was first mooted in the mid-1960s and remains a bad one 40-odd years later. The creation of the institution of a Lok Ayukta at the state level has not helped reduce corruption in state governments, so a new Lok Pal at the national level is unlikely to do a better job at the central government level. The recent experience with the nomination of the Central Vigilance Commissioner shows that it is individuals rather than institutions that matter and there is no guarantee that a Lok Pal will necessarily inspire confidence and be effective. No one will deny that the problem of corruption in high places needs to be dealt with. There is no better way of doing this than strengthening existing institutions of democracy, including the legislature, the judiciary, the executive and even the media. Greater transparency in the functioning of these institutions will reduce corruption in public life. No Lok Pal can do what members of the four estates of the nation cannot and will not do.

It is a pity that despite the obvious shortcomings of this idea, it has been floated repeatedly. Bills have been repeatedly tabled in Parliament and successive governments, comprising almost all political parties in India today, have repeatedly spoken in favour of it, without doing anything about it. Somebody must call a spade a spade. The Lok Pal Bill should be buried, not kept alive by a threat of a fast unto death, even by a well-intentioned person like Mr Hazare.

It is tragic that an assortment of non-accountable activists, publicity-seeking busybodies and an assortment of do-gooders have all managed to push the gentle Mr Hazare into going on a fast unto death. No government in a democracy can approve of such blackmail. Merely because Mahatma Gandhi used a fast unto death as a means of exerting pressure on an alien, colonial government does not mean that in a democracy such tactics can be tolerated, much less eulogised. The situation in which the government finds itself is partly of the ruling party’s own making. By elevating the status of non-government organisations (NGOs) that are not accountable to anyone, and by not activating its own cadres on development and other issues of public concern, the Congress party has given a larger-than-life role to NGO leaders. Nothing should be done, even in the name of fighting corruption, that can weaken the Indian state and the office of the head of government, who is the embodiment of national sovereignty and answerable only to Parliament. If necessary, Mr Hazare should be force-fed and hospitalised, but not allowed to browbeat an elected government of the people.

Response to letters@business-standard.com, dated April 7, 2011

Sir,

This refers to the editorial captioned ‘The Hazare hazard’, which appeared in your esteemed daily on April 6, 2011. I am sorry to say that it betrays an utter ignorance of the background and underpinnings of the campaign for enactment of a law to establish a credible and effective institutional framework for combating corruption and restoring probity in public life. You dismiss the demand for a joint committee of the government and civil society to draft such a law on the ground that self-appointed do-gooders cannot be allowed to usurp the role of “representatives of the people”. Left to themselves, will our elected representatives draft and enact such a law? One only needs to look at the succession of inadequate Lokpal Bills, which have ritualistically been introduced in Parliament on eight different occasions between 1968 and 2001 and allowed to lapse. Is further proof required of their insincerity in this regard?

It is equally illogical to argue that a new Lokpal is unlikely to curb corruption at the central government level on the ground that the creation of the institution of Lok Ayukta at the state level has not helped reduce corruption in state governments. If the state Lok Ayuktas have proved ineffective, it is because the relevant laws have placed unreasonable limitations on their jurisdiction and powers and denied them the means to investigate and pursue allegations of corruption against public servants. The Jan Lokpal Bill drafted by civil society seeks to plug these lacunae. The campaign has also prepared a template for reforming the disparate state laws on similar lines. These drafts are not immutable or sacrosanct; they are meant to initiate a dialogue on the essential features of a comprehensive anti-corruption law.

Referring to the recent experience with the nomination of the Central Vigilance Commissioner, you pontificate that it is individuals rather than institutions that matter and there is no guarantee that a Lokpal will necessarily inspire confidence and be effective. You choose to overlook the opacity and arbitrariness of the process of selection of the Central Vigilance Commissioner, which led to the nomination of a tainted bureaucrat favoured by the government in disregard of the objections of the leader of opposition, who had been inducted in the selection committee at the instance of the Supreme Court. The draft Jan Lokpal Bill lays down a transparent procedure for appointment to the institution of Lokpal by a broad-based, independent selection committee. This should establish the credibility of the institution of Lokpal and preclude the possibility of bias or mala fides in appointments to it.

There can be no quarrel with the postulate that the problem of corruption in high places needs to be dealt with by strengthening existing institutions of democracy and bringing about greater transparency in the functioning of the structures of governance. But this would not obviate the need for a credible and empowered watchdog institution to sanction deviations from the norms of probity.

While the epithets used by you to describe the people behind the campaign for a new Lokpal Bill may be ignored, one must take strong exception to the suggestion that an eminent social activist and seasoned campaigner like Anna Hazare can be pushed into resorting to blackmail by going on a fast unto death. It is an insult to his crusading zeal, native intelligence and discernment. Evidently, you have not taken the trouble of acquainting yourself with Anna Hazare’s track record as a crusader against corruption.

With regards,

Kamal Kant Jaswal

Director, Common Cause


Affirmation of Solidarity

On April 27, 2011, Common Cause and Development Alternatives released to the media the following joint statement expressing solidarity with the civil society nominees on the joint drafting committee for Lokpal Bill, against whom an orchestrated campaign of vilification has been mounted by those who have a vested interest in the continuance of the ineffectual anti-corruption system, which is currently in place.

-Editor

Press Release

The popular anti-corruption movement led by Anna Hazare has already secured a major victory in forcing the Central government to concede an equal voice to civil society in the formulation of a law to establish an independent and credible institution for combating corruption and restoring probity in public life. This unprecedented development has alarmed the corrupt elements in the political establishment and the bureaucracy, who have hitherto enjoyed a virtual immunity on account of the structured ineffectiveness and pliability of the existing anti-corruption institutions. These elements are making concerted efforts to derail the drafting process by questioning the representative capacity of the civil society nominees on the joint drafting committee and mounting an orchestrated campaign of calumny, slander and insinuation against Anna Hazare, Shanti Bhushan, Prashant Bhushan and Santosh Hegde. We are confident that the perpetrators of dirty tricks in the sordid drama now being enacted will be exposed sooner than later. They will not succeed in their design to distract the civil society representatives on the drafting panel from their immediate task of putting together an effective Lokpal Bill and mobilizing mass support for its early enactment.

We laud the invaluable contributions of Anna Hazare, Shanti Bhushan, Prashant Bhushan and Santosh Hegde in combating corruption and upholding civil liberties and the rule of law. We stand firmly by their side in the ongoing struggle to cleanse the structures of governance of the taint of corruption and restore the credibility of democratic institutions.

Kamal Kant Jaswal ----------------------------------------------------------------- Ashok Khosla Common Cause ------------------------------------------------------------------- Development Alternatives sd/- ---------------------------------------------------------------------------------- sd/-

CLEARING THE AIR ON JAN LOKPAL

After a pre-emptive, tactical surrender, which took most observers by surprise, coming as it did on the fourth day of Anna Hazare’s fast, the UPA government and the Congress Party unleashed a no-holdsbarred campaign of obfuscation, misrepresentation and vilification targeting the Jan Lokpal Bill movement, even before the ink on the gazette notification for the constitution of a Joint Drafting Committee (JDC) had dried. This was followed by an all-out bid to create dissonance within civil society and play up the divergence on the priorities of the anti-corruption campaign and the vision of the institutional framework required to ensure probity in public life. A section of the national media enthusiastically participated in this enterprise.

The pretence of collaborating with the civil society nominees on the JDC with a view to finalizing an agreed draft of the Lokpal Bill by June 30, 2011 was soon given up. The JDC is no longer joint: it is a sundered drafting committee that will deliver two separate drafts! The state sponsored campaign has succeeded to a considerable extent in distorting the public perception of the institution envisaged in the Jan Lokpal Bill and its impact on other institutions of our polity. Shri Shanti Bhushan, Co-chairman of the JDC, has, in a letter addressed to his counterpart, Shri Pranab Mukherjee, sought to clear the air on the conceptual underpinnings and implications of the institutional mechanism envisioned in the Jan Lokpal Bill and put the ongoing debate in a proper perspective.

We are reproducing it below for the information of our readers and their families and friends.

- Editor

Letter

Shri Pranab Mukherjee,

Chairperson,

Joint Drafting Committee on Lokpal Bill,

New Delhi

Dear Pranab Ji,

In continuation to my letter to you yesterday, I am attaching our views on some of the important issues related to the Lokpal Bill. I would be grateful to know the government’s views on these issues. I am confident that you will agree with me that now that the government has ratified the UN Convention again Corruption (UNAC), the government is under an international obligation to ensure that the Lokpal Bill is in line with this convention. The convention requires that any public servant falling in the definition of ‘Public Official’ in Article 2(a) is covered by this Lokpal Bill. This definition clearly includes the prime minister, the judges, all MP’s as well as all officials irrespective of rank. Article 3 of the convention provides for investigation and prosecution of their corruption apart from freezing, seizure and confiscation of the proceeds of their corruption. Article 6(2) requires that the anti-corruption body which is responsible for the above be independent.

We are therefore trying to draft the Lokpal Bill so as to be in line with these requirements. This will answer most of the points on which there is difference between us and you. I am also enclosing a detailed note mentioning in detail the reasons for our views on contentious issues.

We are really curious why is the government against the idea of telecasting live the proceedings of the committee. The people ought to know the reasons why there is a difference between your viewpoint and our viewpoint. The government’s apprehension that it would prevent members from expressing their opinions freely does not appear to be justified. The five civil society members do not have any hesitation in expressing their opinion freely if it were telecast. Why should government members have a problem in expressing their free opinion publicly?

far. As members of the committee, it seems to us that we have a right to have copies of the same. Yours sincerely,

(Shanti Bhushan)

Co-Chairperson, Joint Drafting Committee

Issues

Should Lokpal have powers to investigate allegations of corruption against Prime Minister?

1. Government feels that ongoing investigations would make a Prime Minister “dysfunctional”. So, did Mr. Rajiv Gandhi become “dysfunctional” after investigations started in Bofors case? Did Mr. Narasimha Rao become “dysfunctional” due to investigations in the Jharkhand Mukti Morcha case?

2. Contrary to a popular misconception, the Prime Minister does not enjoy any immunity from investigations under the constitution. Many Prime Ministers have faced investigations in the past. Does the government plan to amend the constitution to grant the Prime Minister such immunity? According to some media reports, government has suggested that the Prime Minister may be brought under the purview of Lokpal with some exceptions. Even that would require a constitutional amendment. Does the government plan to do that?

3. The Government’s apprehension that the Prime Minster would face series of frivolous and mischievous complaints is incorrect because a full bench of Lokpal would first decide whether to accept a particular complaint or not. The complainant would be severely fined if they turn out to be false of unsubstantiated allegations.

4. The Prime Minister is privy to the entire security related information of this country. What if Mr. Madhu Koda or A Raja became the Prime Minister of this country, which is quite likely in this era of coalition politics? A Prime Minister enjoying complete immunity from any kind of investigations would himself become the biggest security threat! What if he or she sold such crucial information?

5. If a Prime Minister held 15 portfolios, would all these ministries be outside the ambit of Lokpal?

6. If there were a corrupt Prime Minister, isn’t there a distinct possibility for this person to become a conduit for receiving bribes on behalf of all his ministerial colleagues if immunity were granted to him/her?

7. There is no civilized country in the world where the head of the government is exempt from corruption investigation. Even in the U.K. or in the U.S.A the P.M. or President are subject to independent investigation. Should Lokpal have powers to investigate allegations of horse-trading in Parliament? The government wants criminal investigations into such allegations to be left to the Speaker.

1. Do you agree that horse trading of MPs and MLAs attacks the very foundations of our parliamentary democracy? Do you agree that it ought to be addressed with the utmost urgency?

2. The UPA is alleged to have won the confidence vote in July 2008 in Parliament through horse trading. It has been more than three years now. The Police are still investigating the case. The Police come directly under the control of UPA, which is alleged to have benefitted from the wrongdoing, if any. Can we expect a fair investigation? Shouldn’t such investigations be done by an independent body like Lokpal? After investigations, the police will submit its report to the Speaker. Who will prosecute them? And in which court? According to government’s interpretation of the constitution, the Speaker has the powers to prosecute them and also announce punishment against them. So, should we expect the Speaker to award punishment to her own party colleagues?

3.There have been numerous incidents of horse trading in Parliament and various state assemblies. In many cases, the evidence has been quite strong. There have also been many sting operations. Though some members of state assemblies and parliament have been expelled on the basis of some enquiries, however, mere expulsion is not sufficient. Corruption is a criminal offence. There ought to be a criminal investigation. They ought to go to jail for accepting bribes. In how many such cases, has criminal investigation been ordered? Did any MP ever go to jail for having accepted a bribe for asking questions or voting in Parliament?

4. Does the government interpret the Constitution to mean that only the Speaker can order criminal investigations and also order the punishment thereafter? The Speaker, therefore, becomes the investigator, prosecutor and judge all rolled into one. So, is he/she expected to order investigations and punishment against his own party members? Can this ever happen? This means that the members of ruling party will never be investigated, prosecuted and punished. In other words, the constitution grants de facto immunity to the MPs to take bribes for asking questions and voting in Parliament without ever having to face any consequences. Can the constitution be interpreted in this manner?

5. A problem has been created by a patently wrong judgment of the Supreme court in the JMM case where it held that an M.P. taking a bribe for voting is protected by parliamentary privilege. That speaking and voting is protected by legislative privilege does not mean that taking bribes or committing crimes for doing that is also protected. This Bill will legislatively overrule the incorrect JMM judgment.

Should allegations of corruption against Supreme Court and High Court Judges be investigated by Lokpal?

Mr. Chidambaram could not obtain permission to file an FIR against a corrupt judge of Kolkata High Court because the then Chief Justice of India (though who himself was a very honest judge) refused to give permission. The present system, under which the Chief Justice of India gives permission to register an FIR, has ended up protecting corrupt judges. Permissions have been given only in two cases in the last twenty years despite allegations of corruption against so many judges.

What is being proposed in the Jan Lokpal Bill 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. The Government wants corruption by judges to be brought within the ambit of Judicial Standards and Accountability Bill (JSAB) instead of the Lokpal.

Firstly, the JSAB drafted by the government does not deal with bribery of judges. It deals with only “misbehavior” of judges. If a judge is alleged to have taken a bribe to pass an order, should he not be investigated against, prosecuted and punished? The Government says, it will include “corruption” also in its ambit. Even if corruption were included in its ambit, JSAB will end up protecting corrupt judges because then permission to register FIR against a corrupt judge would be given by a committee, which includes friends and colleagues of the accused judge from the same court. Isn’t that much worse than the present system? Rather than reduce corruption won’t such a Bill end up protecting corrupt judges and thereby increasing corruption instead of curbing it? Should Lokpal have powers to impose departmental penalties in corruption cases?

Today, if any officer indulges in corruption, two parallel proceedings start against this individual. The CBI initiates criminal proceedings under Prevention of Corruption Act. These proceedings, if successful will result in that officer going to jail. Simultaneously, the department initiates vigilance enquiries against that officer. These enquiries, if successful, will result in that officer losing his job.

Therefore, for the same offence, two enquiries/investigations start simultaneously by two separate bodies. Since the vigilance enquiries are being conducted by the same department i.e. by the friends and colleagues of the accused, most often, these enquiries end up acquitting the officer. When CBI files its chargesheet in the court, the accused officer presents the findings of departmental vigilance before the court, which weakens the CBl case in the court. The prosecution case suffers serious damage if departmental enquiry exonerates the accused. In the past, the apex court had even supported quashing of the trial proceedings on this ground (for ex. P S Rajya V/s Bihar 1996). Why should we have two agencies enquiring/investigating into same offence? When prosecution and departrnental enquiry are handled by different agencies, there are practical difficulties in exchange of documents, uniformity in leading evidence and maintaining consistency in witness depositions.

We are suggesting that only one set of investigations should be done by Lokpal. Post investigations, the prosecution wing of Lokpal will file a case in the court. Simultaneously, a bench of Lokpal, after giving the accused officers a reasonable opportunity to be heard, imposes a departmental punishment on the accused officers. However, these orders of the Lokpal could be challenged in the High Court. This system is better than the present system where the head of the department, who is often in collusion with the accused, is responsible for imposing these penalties.

Should the institutions of Lokpal at the centre and Lokayuktas in all states be created through the same law?

Central lnformation Commission and State lnformation Commissions were created through the same law. Likewise, the Lokpal at the centre and the Lokayuktas in each state should be created through the same law. Currently, there are either weak Lokayukta with recommendatory powers in the states or there is no Lokayukta at all. If we have a single act providing for both Lokpal for the centre and Lokayukta for the states, it will provide uniformly good institutions throughout the country to tackle corruption at the central and at the state levels.

What kind of model should Lokpal be?

Some questions are being raised about the model to be followed for the Lokpal. Won’t bringing all officers and politicians make the Lokpal unwieldy? Would it be able to handle so many cases? Won’t it die under its own weight?

This depends entirely on our vision of Lokpal the kind of model that we chose to implement.

There are two types of models possible.

As proposed by Government:

The 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, imposing financial penalties for violation of citizen’s charters, imposing 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, the Lokpal would collapse within a few days from the overload of cases.

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 an entire machinery of staff under them to deal directly with the cases. In order to deal with high profile cases, they can have a 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 incorrect 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 be overwhelmed with work and would not be able to deal with high profile tax evaders. The reality is that the Chairman does not deal with individual tax returns himself. There is a huge machinery of staff at his disposal that works under him. Likewise, it is also incorrect to say that Director of the 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.

Likewise, the 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.

Therefore, the Lokpal will be an institution with l0 members and lead by one chairman. This body would have quasi judicial powers and will also be a supervisory bodv. They will have a staff under them as proposed above. They will have powers to delegate their quasi-judicial powers to their subordinate officers.

Why should CBI, CVC and departmental vigilance be merged into Lokpal?

The 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. For example, as per media reports, despite huge amounts of unaccounted cash being recovered from the house of a top NHAl officer. Mr. Kamal Nath denied permission to initiate an enquiry against him.

After completion of investigations, if sufficient evidence is found, the CBI has to again seek the permission from the same people in the government to file a case in the court. A couple of recent examples from media reports — the Coal Ministry just sat on the CBl’s repeated requests to prosecute the officer who was to become the CMD; The Railways just sat on CBI’s request to prosecute one of its top employees involved in railway recruitment scam.

There are many other ways in which the government controls the CBI. The CBI’s lawyers are appointed by the Law ministry and are under ministry’s control. Even if a CBI officer does a good investigation, the government can kill that case in the court through the lawyer. The CBI’s officers are also appointed by the government and are under government’s control. Therefore, the CBI is completely in the clutches of the government. It has been used by every successive government to settle scores with their political opponents and to arm twist them into submission. At the same time, the CBI has been pressurized to scuttle cases against the ruling party bosses. For instance, eyebrows were raised when the CBl unfroze bank accounts of ltalian businessman Ottavio Quattrocchi, one of the prime accused in the Bofors scandal in January 2006. The CBI also asked lnterpol to take him off the “wanted” list on 29 Apr 2009, barely three weeks before the end of the UPA - I tenure.

It took investigative agencies three years to arrest Hasan Ali, two years to arrest Raja, six months to arrest Kalmadi. Was it due to inefficiencies of investigative agencies or due to direct government interference?

The Supreme Court, on several 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.

However, in the Joint committee meeting, the government suggested that the CBI should be allowed to continue to work under the control of the government and let a separate investigative wing be created for Lokpal. The following questions immediately arise:

1. What if the same complaint is made to both the CBI and the Lokpal? The Government says that Lokpal would get precedence. But suppose CBI is doing a dishonest investigation in any case or is being influenced by the government, then could Lokpal call for the file from CBl midway through the process and take it up from there?

2. With a choice between a compromised CBI and an independent Lokpal, won’t almost all people like to approach Lokpal? Then what would be the purpose of the CBI. It would be left to investigate only those cases which are forwarded by the government? This gives the government to continue misusing CBI for its political purposes. Should this be allowed?

3. Even if the government wants any case to be investigated, it could forward the same to the Lokpal. Let there be an independent investigation in that case. Why is government interested in getting “some cases” investigated by an agency directly under its own control?

4. The CBI’s annual budget is around Rs 300 crores. Why should we spend the same amount to create another redundant set up to do the same things? Why not bring the CBI under the Lokpal so it can operate with greater freedom and no interference from the government?

What should we do with the CVC? The CVC received around 1700 actionable complaints last year and enquired into just 11 complaints. It merely forwarded the rest of the complaints to respective departments to enquire and take action against themselves. With a total staff strength of just 240 people, CVC is a glorified post office. In the cases enquired into by departments, CVC gives its advice on quantum of punishment. However, that advice is rarely followed. For these reasons, the CBl, CVC and departmental vigilance must be brought under the administrative and supervisory jurisdiction of the Lokpal. Should the Lokpal deal with only higher level corruption?

The Government has suggested that Lokpal should concentrate only on higher level corruption. India has a classic anti-corruption system with completely fractured mandate. In the same case of corruption, 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 a 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 the street lighting case of the Common Wealth Games, first an enquiry was done by CVC, then CBI investigated into the same case and then it was again enquired into by the 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.

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.

In fact, Lokayuktas in most states deal with only higher level corruption – at the level of politicians only. This model has completely failed. Almost no corruption starts at the level of a politician. It normally starts at the level of an officer, who writes something on the file, may be under pressure. The role of a politician or a senior officer in a file becomes visible after many levels. That is the reason, that almost no case reaches Lokayukta. Delhi Lokayukta has jurisdiction only on politicians. Justice Shamim, former Lokayukta of Delhi, used to complain that though the government spends almost Rs. 1.25 crores on his institution annually, he receives less than 5 actionable complaints every year. In Karnataka, the Lokayukta has jurisdiction over both politicians and bureaucrats. And it has worked very well. The conference of all Lokayuktas, held annually, has been demanding for many years that this fractured mandate given to them only on politicians was serving only the interest of the corrupt people and should be immediately done away with. They have been demanding replication of the Karnataka model everywhere in the country.

In the absence of political will, this has not been done so far. If Lokpal will deal with only higher level corruption, who will deal with lower level corruption? Where should a common man go, who has unearthed corruption in some government scheme through RTI?

Government says that the existing anti–corruption agencies should continue dealing with lower level corruption. But isn’t it a fact that these agencies have completely failed? Should we brush this important issue under the carpet? The situation in those countries, who have handled corruption better, is completely different. While they may have some corruption at higher levels, there is practically no corruption at lower levels. Therefore, dealing with the corruption at the level of a common man is most important. If not through Lokpal, then what action plan does the government have to deal with this corruption?

There is an assumption that if Lokpal dealt with high level corruption, there would be a trickle-down effect and lower level corruption would automatically reduce. Just like the economic reforms did not have trickle down effect, creating anti-corruption systems only against top people would also not have any trickle down effect. Experience shows that honest individuals sitting at top could not reduce corruption at lower levels in their departments.

So, according to the model that we are suggesting, the 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. Financial independence of Lokpal Lokpal should be financially independent of Government of India. In principle, government agrees. Government agrees that the expenses should be charged to the Consolidated Fund of India. However, the important question is – how should the annual fund requirements of Lokpal be decided? “Some Secretary in some ministry” should certainly not have the power to reduce Lokpal’s demands.

Presently, though Supreme Court’s and CAG’s funds are charged to the Constitution of India, the law ministry and finance ministry have the final say in deciding the quantum. Whatever is demanded by all 11 members of Lokpal together in a meeting should be charged to the Consolidated Fund of India.

January – March, 2011