Still a long way to clean governance

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It has taken 46 years of incessant effort, an unprecedented outburst of public anger, and three fasts-unto-death by veteran social activist Anna Hazare in the past three years, for the country to get a Lokpal (ombudsman) with sufficient teeth to check the corruption and lack of accountability that is rampant in Indian democracy. Under the new Act, the Lokpal will have independent power to investigate charges of corruption and launch prosecutions against civil servants, ministers and Members of Parliament without the prior sanction of the government. It will also have the authority to investigate the actions of the prime minister in certain matters. But will this bring about the kind of difference to the quality of government — its transparency and probity — that people are hoping for? The short answer, as Anna Hazare has said, is that it is only a beginning. A Lokpal is a necessary but not a sufficient condition for restoring health to our democracy.

The most obvious limitation of the institution is that its authority extends only to the Central government and not to the states; to the prime minister of the country, but not the chief ministers of the states. The Centre has around 850 legislators and 40 lakh civil servants, while there are around 5,000 legislators and 1.4 crore civil servants in all the states taken together. In other words, there are four times as many points of interface between the State and the society in the states than at the Centre.

For the poor, the Centre is a remote, almost intangible, entity. After all, almost 99 percent of their interactions are necessarily with state and local government officials. It is here that what we loosely call corruption, but which is, in fact, a ruthless extortion of money in exchange for delivery of public services, takes place. The Lokpal, however, will have no authority whatsoever over the infractions committed in the course of this 99 percent of State-citizen interactions.

That is why the new Act has mandated the creation of Lokayuktas in every state. But one has only to see the pretexts under which West Bengal Chief Minister Mamata Banerjee opposed the passage of the Bill in 2012 and the desperate, but open and therefore honest, resistance that Mulayam Singh Yadav and his Samajwadi Party have put up this time, to perceive how little enthusiasm there is in the state legislatures and bureaucracy for bringing in the institution of Lokayuktas. The bleak truth is even those that do set up Lokayuktas are likely to make the institution toothless.

Anna Hazare knows this. That is why the first thing he said when he broke his fast was that the battle has only begun. But can even a strong network of Lokayuktas, working closely with the Lokpal, adequately police the state and local bureaucracies? The answer is no, because if they try to do so and the people begin to believe in and rely upon them for redress, they will be crushed under the avalanche of complaints that will land upon them.

One statistic from the National Crime Records Bureau’s annual report Crime in India 2007 shows us why. Between 2003 and 2007, there were 2,82,384 complaints filed against the police for human rights abuses. It is an absolutely safe bet that these make up not more than a tenth of the real number of abuses, for the complaints led to only 264 convictions. The rest of the indicted policemen returned to their thanas. Villagers and townspeople know, therefore, that incurring the wrath of the police is a dangerous way to live. If the poor lose their fear of retribution, the number of complaints could easily swell to half a million a year, and these would only be the ones against the police.

The ugly fact is that there is hardly a transaction between the public and the State today that does not require a kickback to a local politician or petty civil servant — whether it is the collection of one’s pension, income tax refund, ration or BPL card; the passage of an architect’s plan; the receipt of a ‘completion’ certificate after the construction is completed; the registration of a property sale; the payment of the stamp duty; the renewal of a licence; the collection of one’s BPL rations; enrolment in MGNREGS programmes; or the collection of dues under any of the 89 schemes for rural and inclusive development enacted by various governments over the years. Were the poor to lose their fear of these oppressors and bring them before the Lokayuktas, the number of complaints every year would run into millions, and cause the institution to collapse under the sheer burden.

It can be asserted, therefore, that there is no way the Lokpal and Lokayukta systems will be able to deliver unless there are supporting reforms in the democratic system itself. Punitive systems work only when the level of infraction of rules remains below a threshold. In India, the infraction of rules is the rule itself, not the exception. This is because over the past 60 years, we have created a predatory democracy that depends upon corruption, extortion and lack of accountability to the people for its politicians and bureaucrats to survive and prosper.

This is not a product of some flaw in the Indian character. It owes its origins to two crucial omissions from the Constitution by the Constituent Assembly in 1948. The first was of a transparent and publicly audited system of funding to meet the cost of running political parties and fighting elections. The second was of the inclusion of clauses and safeguards that would ensure that the bureaucracy would be answerable to the people for their sins of commission and omission.

The omission of clauses on electoral finances was the result of an unthinking emulation of British practice. What the founding fathers forgot was that whereas the average British constituency today is 375 sq km in size and has an electorate of 60,000, the average parliamentary constituency in India is 6,000 sq km in size and has an electorate of 12 lakh.

In Britain, a candidate for Parliament can, therefore, get into his car every morning, visit two or three towns and villages, and return home every night. But in India, the typical constituency has more than a thousand villages. To man the 1,000 to 1,200 polling booths in a constituency, every serious candidate has to employ at least 8,000 agents on polling day. The cost is, quite simply, enormous. The failure of the Constituent Assembly to understand how this difference in size made it impossible to copy the British model in India, was surprising, to say the least.

This oversight could have been remedied with a constitutional amendment at a later date, but instead, in 1967, the then prime minister Indira Gandhi took the country in the opposite direction and choked off the only legitimate source of funds that had sprung up in the intervening years. That source was the donations from corporations that all parties, except the Communists, had begun to depend upon. But while choking off the political system’s main source of funds, she deliberately did not create an alternative. This opened the gates to black money, muscle power and the criminalisation of India’s democracy.

The second oversight was the founding fathers’ failure to realise that something specific had to be changed if a bureaucracy schooled into believing that its function was to rule the people, was to become its servant. As a result, they imported a clause from the Government of India Act of 1935 that virtually guaranteed immunity to British-Indian civil servants from prosecution, lock, stock and barrel into the Constitution of Independent India. This became Article 311 of the Constitution, which reads: “No person who is a member of a civil service of the Union or an all-India service or a civil service of a state or holds a civil post under the Union or a state shall be dismissed or removed by a authority subordinate to that by which he was appointed.”

(This provision can also be traced back to British constitutional practice, albeit a highly contested one. As the British Crown is the source of legitimacy for all law in Britain, it is, of necessity, above the law. But the Crown operates through its servants. Does this mean that they too are above law when carrying out the sovereign’s orders? This immunity was contested by the British Parliament with increasing vigour for nearly a hundred years from the rule of King William and Queen Mary at the end of the 17th century until that of King George III a century later, and ended with a typically messy British compromise. While individuals cannot bring charges against the State in a court of law, they can do so against civil servants in their personal capacity for the manner in which they perform the duties given to them by the State.)

The Article 311 injunction applies not only to civil cases, but to criminal cases as well. For the Central services, the empowered ‘Authority’ is the President of India; for the state civil services, it is the Governor. In practice, this has meant that no prosecution can be initiated without the permission of the Central or state government. As the dismal experience of the Central Vigilance Commission has shown, this permission is rarely given in civil cases.

Today, India’s criminal class is firmly ensconced in its Parliament and state Assemblies. Of the 544 members elected to the current Lok Sabha, 155 are facing serious criminal charges in their home states and cities. The ratio of members with criminal records is much higher in the state Assemblies: 44.6 percent of the legislators elected to the Bihar Assembly in 2011 were facing similar criminal charges at the time of their election. According to a report brought out by the Association for Democratic Reforms, a New Delhi-based civil society group, in the May 2011 state elections, 75 MLAs of West Bengal, 36 MLAs of Tamil Nadu, eight of Assam and two of Puducherry have declared serious criminal cases pending against them, including charges of murder, kidnapping and extortion.

As for the bureaucracy, it would have been a miracle indeed if such blanket protection that Article 311 provides had not been abused. But the political bosses’ perennial hunt for funds placed a premium upon the abuse of bureaucratic power, and gave a novel meaning to the term ‘servants of the State’. The harm this has done is beyond description, for it has virtually immunised civil servants from prosecution not only for their acts of commission, but also their acts of omission. Today, there is no law that requires a civil servant to do his duty towards the public; no law that obliges him or her to issue a licence, a permit or a waiver once the applicant has fulfilled the conditions for its issuance. There is no law that even requires a civil servant to reply to an inquiry from a member of the public within a specified period of time. Since peoples’ plans, businesses, often their very lives, depend upon the timely issue of these permits and licences, this lacuna has given bureaucrats virtually unlimited powers of blackmail. Today’s corrupt and predatory democracy is a product of the intertwining of the consequences of these two lacunae in the Constitution. Bureaucrats serve their political masters, as they did 70 years ago. Bureaucrats also remain unaccountable to the people they govern. But years ago, their political masters sat in Westminster and were reasonably honest men with a real concern for good governance. Today they are politicians who need the connivance of officers of the state, Central and all-India services to facilitate the receipt of kickbacks, cite regulations and precedents where necessary, and put the gloss of public interest upon the most private of transactions.

History, now a much discounted subject in the universities of the West, teaches us that no State that has forsaken the basic moral principles that govern human relations has survived for long. India has travelled a long way down that road. The Lokpal Bill is the first serious step it has taken away from the downward path. But it too will prove impotent if it is not accompanied by steps to fill the lacunae that were left in the Constitution. Transparent and fully accounted funding of political parties and elections, a large State fund for distribution to recognised parties according to their share of the vote, and a drastic revision of Article 311 to permit members of the public to sue the State for its failure to deliver promised services, thereby forcing it to set its own house in order, are necessary pre-requisites for the success of the Lokpal.

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What The Lokpal Bill Envisages

  • 50 percent of members shall be from SCs/STs/OBCs, minorities and women
  • The chairperson and members shall be selected by a committee consisting of the prime minister, Speaker and Leader of the Opposition in the Lok Sabha, Chief Justice of India or a sitting Supreme Court judge nominated by the CJI, and an eminent jurist to be nominated by the President of India on the recommendation of the first four committee members
  • The prime minister has been brought under Lokpal’s purview
  • Lokpal’s jurisdiction will cover all categories of public servants and all entities receiving donations from foreign sources in excess of 10 lakh per year
  • Lokpal will have power of superintendence and direction over any investigation agency, including CBI, for cases referred to them by Lokpal.
  • CBI officers investigating cases referred by Lokpal can be transferred only with the Lokpal’s approval
  • A high powered committee chaired by the PM will recommend selection of the Director, CBI
  • Director of Prosecution, CBI, will be appointed on the Central Vigilance Commission’s recommendation
  • State legislatures have to enact laws to establish the institution of Lokayukta within one year from the date of commencement of the Act

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