Our Campaign Against Corruption

Swapna Jha

“Corruption is an evil that threatens and challenges all people around the globe, but bears with special cruelty upon the world’s most poor,” warned the Durban Declaration of the 9th International Anti-Corruption Conference in 1999. “It deepens poverty; it debases human rights; it degrades the environment; it derails development, including private sector development; it can drive conflict in and between nations; and it destroys confidence in democracy and the legitimacy of governments. It debases human dignity and is universally condemned by the world’s major faiths,” said the declaration.¹

To stem this rot, it is imperative that we create and strengthen institutions that monitor adherence to ethical conduct by public servants, the global conference further observed. Yet time and again, creating an empowered monitoring structure has been one of our biggest challenges. Common Cause is among many civil society organisations and peoples’ movements in India that have consistently fought for probity in public life and integrity of institutions. This article discusses the Society’s multi-pronged approaches to eliminate corruption through a series of democratic interventions and advocacy efforts.

Although Lokpal Bills designed to put in place an institutional framework to combat corruption in public life were introduced in Parliament by successive governments on as many as eight occasions, no real commitment to enact a Lokpal legislation was in evidence. All governments past and present have failed in their duty to institute systemic reforms to minimise corruption and ensure the exercise of due vigilance. They have displayed no inclination to remedy gross financial irregularities under their watch, or penalise corrupt politicians and bureaucrats colluding with them.

All governments past and present have failed in their duty to institute systemic reforms to minimise corruption and ensure the exercise of due vigilance

2011 was marked by one of the biggest people’s movements to emerge not from one of India’s remote villages, but also from the national Capital, demanding to pass the Jan Lokpal Bill

As the executive stubbornly refused to make abiding changes to the transparency architecture of the country, Common Cause carried on with its battle for anti-corruption reforms, and also took the initiative to prepare the blueprint of a legislative framework for combatting endemic corruption and abuse of office in the polity. These endeavours are recapitulated in the following paragraphs.

Common Cause had filed a PIL in the Supreme Court in 1995 to demand the establishment of an effective framework for combatting corruption by creating the institutions of Lokpal at the central level and Lokayukta at the state level. The essential features of a law for establishing an independent and empowered Lokpal were first outlined in an affidavit filed by Common Cause in August 2008. After an eventful contest over 20 long years, the PIL was dismissed in 2015 for having become infructuous with the passage of the Lokpal and Lokayuktas Act, 2013.

The year 2011 was marked by one of the biggest people’s movements to emerge not from one of India’s remote villages, but also from the national Capital, demanding to pass the Jan Lokpal Bill to establish a citizen’s ombudsman. A mass campaign under the banner of India Against Corruption (IAC)was launched in January 2011 at Ramlila Ground, Delhi, to press for a strong legislation for setting up a central and state-level ombudsmen. This was followed by a march to New Delhi’s Jantar Mantar by activists, lawyers, retired civil servants, academics, students and throngs of common people.

Meanwhile, in the context of rampant corruption and the failure of the government to visibly combat it, certain events unfolded in quick succession. The leading lights of civil society came together to draft a law for the establishment of an independent and empowered central institution for combating corruption at both political and bureaucratic levels. This was in sharp contrast to the toothless advisory body with limited jurisdiction envisaged in the Lokpal Bill being formulated by the government.

Common Cause, used the Karnataka Lokyukta Act as base and reworked it. This draft helped navigate the path for the Jan Lokpal Bill used by the family of civil society organisations. One of the key features of this Bill was to set up an institution completely independent of the government. The Bill also asked that corruption and vigilance matters be dealt with entirely by the Lokpal, who would have jurisdiction over bureaucrats, politicians and judges.

It was also demanded that the Lokpal be empowered to initiate investigations and prosecution without needing permission from any other agency. He/she should also be invested with powers to act as an appellate authority as well as supervisory body for grievance redressal in all central govt departments. Common Cause recommended that an effective Lokpal legislation be evolved, based on the Jan Lokpal Bill. It advocated that the new legislation be a great improvement on the previous versions of the Lokpal Bill ritualistically introduced in Parliament eight times by successive governments and allowed to lapse.

The efforts of Common Cause bore results, when the National Advisory Committee (NAC) agreed to engage so as to ensure that the govt’s draft bill was publicly debated, appropriately strengthened and finally enacted. In the meeting of the NAC, held on February 26, 2011, it was decided that the NAC Working Group on Transparency and Accountability, convened by social activist Aruna Roy, would take up the Lokpal Bill. This was a huge success for the civil society organisations. By February 2011, the delegation formed by civil society organisations had met the leaders of the ruling party as well as those in opposition to try to form a consensus on proper public consultation and inclusion of relevant portions of the Jan Lokpal Bill in the bill proposed by the government.

During the same period, the UPA-II government at the Centre, already reeling under a tsunami of corruption allegations, prompted Mrs. Sonia Gandhi to delineate her prescription for combating corruption in her presidential address at the Congress Plenary Session in Delhi’s Burari on December 18, 2010. In response to this event, Common Cause addressed an open letter to Mrs Gandhi on January 14, 2011. It urged her to translate the Congress Party’s declaration of intent into concrete action. The letter highlighted the following five action points to tackle bribery and embezzlement of epic scales:

• State funding of political processes and parties.
• Fast-tracking of all cases of corruption by public servants, including politicians.
• Legislation, clear procedures and full transparency in public procurement and contracts and protection of whistleblowers.
• All discretionary powers, particularly in land allocation, breed corruption and should be reviewed and relinquished.
• An open and competitive system for exploitation of mineral resources should be put in place.

The spontaneity of the upsurge witnessed during the first two phases of the Jan Lokpal campaign exploded the myth that corruption is a non-issue in Indian politics. It is true that even in the Lok Sabha elections of 1989, the Bofors affair had taken centrestage, but it was the first time that people from all walks of life had taken to the streets in response to a call to bring about a systemic change in the institutional anticorruption framework.

Within four days of Anna Hazare’s first indefinite fast at Jantar Mantar in December 2010, the govt was forced to yield. It conceded to the demand for the participation of Hazare’s nominees in the process of drafting the Lokpal Bill to be introduced in Parliament. Subsequently, the bill that the govt eventually introduced in Parliament on August 4, 2011 was a damp squib.

In its second phase, the movement received a shot in the arm with the denial of a venue to IAC for staging Hazare’s fast and the subsequent arrest of its leaders early in the morning of August 16, 2011. Common Cause took an active part in the protest against the denial of a venue to IAC for staging Hazare’s fast and the subsequent arrest of the leaders of the movement on August 16.

By the time Hazare chose to come out of Tihar Jail, the growing support for the movement was apparent to everyone. The trickle of protesters at the Ramlila ground, where Hazare was to stage his second indefinite fast, soon turned into a deluge. However, it became clear that the political establishment would not allow the Jan Lokpal Bill to be enacted.

The next battle was to be fought in the precincts of the Parliamentary Standing Committee. This Committee was mandated to redraft the Bill, taking into account the ‘Sense of the House’ resolution and the divergent views expressed in the debates inside and outside the House.

As the divisions within civil society over an institutional framework to combat corruption widened, Common Cause took the initiative to bring IAC and the National Campaign for People’s Right to Information (NCPRI) to the conference table. This was done in an attempt to enlarge the area of convergence and forge a common approach for resolving the outstanding issues. These efforts met with considerable success. The Society also exhorted the IAC leadership to make full use of the opportunity afforded by the consultation process of the Parliamentary Standing Committee to steer the Lokpal Bill in the desired direction.

After several protests and much persuasion, the Union Govt eventually passed the Lokpal and Lokayuktas Act, 2013. Later, in January 2014, it notified the rules under the Act. These rules undermined the independence of the ombudsman institution by restricting the field of selection to hand-picked nominees of the govt. They also gave undue advantage to senior bureaucrats in their appointments as non-judicial members of the Lokpal. It was a blatant abuse of the device of delegated legislation.

Common Cause, which had been fighting for the establishment of an independent and effective Lokpal since 1995, realised that the rules were an attempt to dilute the institution. Hence, the Society filed a PIL in the Supreme Court, challenging the arbitrary Search Committee rules on March 5, 2014.

Subsequently, an IA was filed to foil the outgoing UPA II govt’s last-ditch effort to convene a meeting of the Selection Committee in order to pack the Lokpal with its nominees. The government had to give an undertaking that it would proceed with the appointments only after amending the impugned rules.

Even after the impugned Rules 10 (1) & (4)(i) were amended in terms of the prayers made in the petition, the govt did not initiate the appointment process of the Lokpal. Hence, Common Cause filed an IA in March 2016, requesting the Court to allow an additional prayer in the writ petition for a writ of mandamus to the govt to constitute the Lokpal as per the amended rules.

The amended petition was taken on record. In its hearing on April 27, 2017, the Apex Court held that there was no justification to put the Lokpal appointment on hold because of a vacancy in the Selection Committee, and that the Lokpal Act, as it stood, was enforceable. It turned down the Centre’s plea to keep the Lokpal Act in suspension until the laws governing the recognition of the Leader of Opposition were amended. The Court observed that if the Leader of Opposition was not available, the Chairperson and two other members of the Selection Committee could proceed to appoint an eminent jurist as a member of the Selection Panel.

Despite the Court’s ruling that the Lokpal Act was a perfectly workable piece of legislation, the govt failed to appoint the Lokpal for nine months. Hence, Common Cause filed a contempt petition regarding the Govt’s willful and deliberate failure to fully comply with the judgment. The matter was listed several times as the govt seemed to be in no hurry to set up an anti-corruption body. Eventually, the Lokpal was constituted on March 19, 2019, leading to the dismissal of the contempt petition on December 2, 2019.

In 2013, Common Cause also challenged the competent authority’s (Lt. Governor of Delhi) rejection of the recommendations made by the Lokayukta, with respect to eight former Municipal Councillors, who had been caught in the act of negotiating bribes for facilitating unauthorised constructions. It was contended that the Lt. Governor had deviated from the prescribed procedure by conducting fresh inquiries and considering extraneous circumstances. The High Court was urged to set aside the impugned orders and direct that the case records be forwarded to the Commissioner of Police for further action in accordance with law.

On February 19, 2015, the bench of Chief Justice G. Rohini and J.R.S. Endlaw disposed of the petition following the Court’s judgment in Sunita Bhardwaj vs Smt Shiela Dixit case.

Refusing to sit in appeal over the decisions of the Competent Authority, the Court expressed its helplessness in addressing the inherent weakness of the legislation, which made the Lokayukta a powerless body. Granting a token relief, the Court, however, said that the formality of laying the Lokayukta’s Special Reports in the Assembly, which had not been done as yet, should be completed within six weeks.

Conclusion

Despite the President giving his assent to the Lokpal and Lokayuktas Act on January 1, 2014, the implementation of the Act took ages. The simple job of setting up a constitutionally autonomous office that will look into complaints against top-ranking govt officials just didn’t get done. Despite the change of wind at the Centre, the new govt didn’t seem to be in a hurry to remedy its predecessor’s gross inaction. The new government, cruising along to power on the anti-corruption movement, had to be prodded with multiple PILs in the Supreme Court, beginning with one challenging the arbitrary nature of the Search Committee Rules and even a contempt petition.

Finally, when the Lokpal was appointed on March 19, 2019, as a direct result of a Common Cause intervention, it seems unable to come out of its incubator to resolve the big-ticket corruption cases. On paper, India finally has a Lokpal but it is hardly an anti-corruption watchdog the country eagerly awaited. Even after the delayed appointments, the govt failed to appoint the Directors of Investigation and Prosecution for a long time without which Lokpal had no meaning. The institution is still run by handpicked officials which was feared by the civil society during the drafting of the Jan Lokpal Bill.

While the debate must go on, the moot point is if the lame duck Lokpal we have is any better than no Lokpal at all. The struggle to set up truly credible and autonomous institutions may still be a work in progress but it can surely be the goal that citizens can aspire to. As for Common Cause, we are disappointed but certainly not disheartened. The fight against corruption must go on because we know that corruption is a moral failing that hollows out democratic institutions and undermines the rule of law, civil liberties, and human development.

Endnotes

• The Durban commitment to effective action against corruption: Durban, South Africa, 15 October, 1999, Trends in Organized Crime, Vol. 5, Iss. 1, (Fall 1999): 94-97. Retrieved on 17 March 2022 from https://bit.ly/3uJigSD

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