There was a time, not long ago, when stories of corruption did not turn a hair. It was the accepted fabric of life. This summer, the heated anti-graft movement led by Anna Hazare has changed all that. The idea of impunity has been punctured. A much-needed corrective has kicked in.
The draft Lokpal Bill itself though — both Team Anna’s version and the government’s — leaves much to be desired. The eventual shape of this Bill will have far-reaching implications for democracy. As the first noise subsides, therefore, there is an urgent need for wider and more reasoned debate — both from within the system and outside of it.
Are there other ways of leashing corruption? Will the Lokpal be misused? What shape should it take? How can the political system be cleaned up?
It would be a huge mistake to conclude there is a magic wand that can sweep away corruption: the Team Anna position. Or that it’s suicidal to involve ordinary citizens in any way, in the process of legislation: the government’s current position.
The answers lie elsewhere. Over the coming weeks, we hope some of the essays in this series will point to what those directions can be. Or, at least, keep the steam of sane resistance alive.
Implementing the civil society’s version of the Lokpal Bill will let loose an Orwellian nightmare that will only weaken the country
IT IS absurd to suggest that it was Anna Hazare and Baba Ramdev who brought the issue of corruption to the forefront of public consciousness. The 2G scam, Adarsh Housing and Commonwealth Games scandals had already damned the politician, the bureaucrat and the new kid on the block — the army officer. Of course, we must not forget the bunch that light candles at India Gate and Jantar Mantar and yet routinely pay bribes to jump the queue or to get away with a law violation. They are the beneficiaries of this iniquitous system and help prop it up.
No wonder then, this general disaffection of the masses struck the right chord with Hazare and Ramdev. But the claim of these so-called civil, self-appointed guardians of society that they have ‘awakened’ the people to the rot in the system is laughable. Not so amusing, though, is their belief that they, and not the elected representatives, represent the will of the people. What is of utmost concern is that they and their supporters have bullied a weak-kneed government into setting up a joint committee for drafting the Lokpal Bill. The 11-member committee consists of five members of Hazare’s team who apparently claim omniscience in all matters relating to corruption, as well as the law and Constitution.
It is sad that gullible sections in society have begun to believe that the Lokpal Bill will work like a magic wand and eradicate the bane of corruption. These fanciful thoughts have arisen due to total ignorance of the formulations in the Bill, as conceived by the team. Having gone through their latest draft, one is convinced that only a government that has lost its bearings would accept it. This Bill is not only naive and impractical, it is also adverse to a smooth functioning of all the institutions of governance. In a country already overburdened with laws, acts, rules and procedures, another Act of this kind is no answer to fighting corruption.
Significantly, under this much-maligned system, a senior minister, MPs and a large number of corporate honchos are in Tihar Jail on corruption charges. This should underline the fact that anti-corruption agencies are already armed with the powers to bring anyone to book. It is their effectiveness that needs to be improved. The draft legislation of Hazare’s team will not only slow down an already lumbering government machinery, but create a new fountainhead of corruption through its proposed outfit.
In essence, Hazare’s Bill seeks to emasculate the government and its institutions and concentrate all punitive powers on a randomly selected group of individuals with no accountability whatsoever. The preamble to the draft Bill enumerates the mandate of the Lokpal Authority, which will be to “investigate any offence under the Prevention of Corruption Act, 1988, and prosecute offenders”. Section 6 of the Bill elaborates further on the powers of the Lokpal and its officers, which includes superintendence over investigation of offences and on completion of a probe to “impose punishment of dismissal, removal or reduction in rank against government servants after giving them reasonable opportunities of being heard”.
In the words of Nicholas Katzenbach, an inherent tension between the police and the judiciary “is intentional and healthy and is the real difference between a free society and a police State”. The most disturbing thing about the Lokpal Authority is that it will be both prosecutor and judge. That’s not all. The proposed superpower can, if seven of the 11 members agree, initiate probes or prosecution against the PM or any of the ministers, any judge of the Supreme or High Court or any MP (Section 17). For the purpose of investigation, the Lokpal is empowered to approve interception of messages, data or voice transmitted by telephone, Internet or any other medium in accordance with the Indian Telegraph Act, 1885. If Hazare has his way, soon Big Brother will be watching you.
The Lokpal will be empowered to recruit investigating and other officers and staff to get them trained in modern methods of scientific investigation (Section 6k); and appoint judicial officers, prosecutors and senior counsels (Section 6e). Is it not true that Hazare’s team in an earlier draft Bill had said, “exercise of discretion in excess” was to be treated as corruption? Do these sanctimonious do-gooders see nothing amiss in allowing the Lokpal unmitigated powers to make appointments?
The draft Bill also gives the judicial and other officers under them sweeping disciplinary powers. A Bench of judicial officers appointed by the Lokpal shall determine the penalty to be awarded to the government servant and shall make a recommendation regarding the penalty “which shall be binding on the appointing authority” (Section 22(4)). Clearly Hazare’s team has no inkling of discipline and appeal rules or the law. They are brazen to suggest that the decision of the judicial officers – either retired judges or retired civil servants appointed by the Lokpal – will perforce have to be accepted by even the President of India who is the appointing authority of group ‘A’ government servants. Can it get any more absurd?
A serious bone of contention between Hazare’s team and the government members on the drafting committee relates to the procedure for selecting the Lokpal members. A selection committee of PM, Leader of the Opposition, two youngest judges of the Supreme Court, etc, will nominate five of the 10 members of the search committee from retired Chief Justices, CAGs and CECs of India. The five selected members of the search committee would then nominate the remaining five members. This will then provide to the selection committee a list of 33 individuals who have “impeccable record of public service in the field of fighting corruption”. (The curriculum vitae of Hazare’s team fit this job description perfectly). In this so-called broadbased selection process, there is apparently no room for the politician. Although the Constitution accords prime importance to the political executive in the governance of the country, the team apparently views the politicians as pariahs. And they think the government is being unreasonable in not accepting a supreme Lokpal without a politician in its ranks.
A critical issue is that the vigilance officers will essentially consist of government officers on deputation. Can these very people who, in the eyes of Hazare’s team, are responsible for the all-pervasive corruption in the country, be trusted not to misuse their enhanced powers? Today’s vigilance officers command fear but no respect because many of them abuse their immunity as moral policemen to terrorise officials to share their illegitimate booty or to soft-pedal cases for a consideration, or to institute cases against colleagues in order to eliminate competitors in the bureaucratic rat race. Given the immense powers proposed for a vigilance officer, there is the real fear that the unscrupulous bureaucrat would see this posting as a goldmine. How will the Lokpal ensure that only persons “of impeccable integrity and ability to take proactive measures against corruption” are slotted against these posts?
THE JAN Lokpal proposed by Hazare’s team will spawn a massive administrative set-up. The existing Delhi Special Police Establishment dealing with investigation and prosecution of offences ie CBI, will be transferred to the Lokpal, as will the vigilance organisations of the Central government, corporations, government companies societies and local authorities. In every state, “one or more complaints authority would be established by the Lokpal to entertain any complaints against any officer or staff of the Lokpal. Each complaints authority shall consist of five members” (Section 15). An army of judicial officers, who may be retired judges or retired civil servants ‘or such others as may be provided’, will be appointed by the Lokpal.
But even a Lokpal of this magnitude would not be able to monitor the activities of over 4 million Central government employees and a much larger number of state government employees, let alone the PSUs, and others. One statistic will prove this point. The total vigilance apparatus of the Indian Railways consists of about 500 officers and inspectors and their task is to track down the dishonest men among 1.4 million employees. A drop attempting to calm the ocean! The Jan Lokpal can, at best, only raise the storm signals, but ensuring a clean administration is a critical function of the executive.
Hazare’s team apparently believes that only the anti-corruption agency can root out this evil. What they do not realise is that tracking down and punishing corrupt officials is only one element in the fight against corruption. In order to make a lasting impact, every organisation needs to reduce opportunities for corruption by plugging loopholes in the rules and procedures. Systems that minimise personal interaction between common citizens and the bureaucracy should be encouraged. In the Railways, harnessing technology in the form of e-ticketing and e-Procurement have not only improved the quality of service, but also reduced levels of corruption.
The Lokpal can only raise storm signals. But, ensuring a clean administration is a critical function of the executive
Instead of dabbling in lawmaking, Hazare’s team should ignite a countrywide campaign against graft by reaching out to every citizen to desist from paying bribes. Officials who demand bribes should be gheraoed and their crimes given wide publicity. Elected representatives must be questioned by their constituency regarding the manner in which the Local Area Development money has been spent. Such proactive action at the ground level will yield rich dividends for the nation. At present, Hazare and his men are wasting the nation’s time and resources on a subject of which they have little knowledge.
In sum, the draft Jan Lokpal Bill is a blueprint for setting up an organisation with draconian powers that is an Orwellian parody. The organisation that they seek to put in place will, far from eradicating it, create a new fountainhead of corruption. It will have a debilitating impact on the legislature, executive and judiciary as well. No sane legislature or government should allow such a monstrosity to happen.
Abdul Khaliq is a secretary general, Lok Janshakti Party