Friday, April 29, 2011
The Lokpal Bill is decisive in the war against corruption. It should create a strong ombudsman, neither weak nor dictatorial. Sebastian PT-30/4/11
Till the (Jan Lokpal) Bill is accepted, I am not going back alive to Maharashtra,” said Anna Hazare at Delhi’s Press Club on the evening of April 2. The media, usually reticent, applauded the 72-year-old Gandhian. But Hazare was irked. “I am not a politician who is saying this for impact. I mean it.” There were not many journalists present that evening, and most among them were worried about missing the Public Accounts Committee briefing due in half-an-hour’s time. Niira Radia and Ratan Tata had been quizzed; this would make for better headlines the next morning—and it did. The scribes, just like the common man, were cynical about the fight against corruption. The laws were such that, at best, the small fish got trapped, while the big fish almost always got away. But what happened in the next six days changed views and perspectives decisively. Cynicism gave way to hope. From the common man, who was fed up with bribing his way through life, to the businessman, who knew government dealings were a greasy affair—the pent-up frustrations found a platform, a rallying point in the fasting Hazare. The silent majority learnt to speak up. The rest, of course, is history.
Hazare’s fight is for creating a strong Lokpal. The First Administrative Reforms Commission in 1966 suggested the creation of ombudsmen—the Lokpal at the Centre and Lok Ayuktas at the state level—to examine complaints against public officials, including elected representatives. Many states have set up Lok Ayuktas. Since ’68, various governments have introduced the Lokpal Bill eight times. But it’s never been passed. “No government, irrespective of party, has been serious,” says Subash Kashyap, an expert on the Constitution. “They introduce the Bill with no intention of passing it.”
An alternative version—the Jan Lokpal Bill—has been drafted by Justice N Santhosh Hegde, SC advocate Prashant Bhushan and activist Arvind Kejriwal. “In January 2011, we accessed a government proposal to create a Lokpal,” says Kejriwal. But the proposal was for a weak Lokpal. Hazare’s protest began after Prime Minister Manmohan Singh turned down his request for the civil society jointly drafting the Lokpal Bill.
Deaf To Reason
The influence of civil society in drafting Bills is not new. The National Advisory Council (NAC) headed by UPA Chairperson Sonia Gandhi has been an interface between civil society and the government. And it has its stamp on many landmark legislations like the National Rural Employment Guarantee Act, and others in the anvil, such as the Food Security Bill. If not for Gandhi, it is doubtful the government would have given it much importance. Of late, however, the NAC seems to be heard with disdain. That apart, on the corruption front, the political class and bureaucracy appear reluctant to change. In the wake of the 2G scam, Gandhi asked Congress Union Ministers and Chief Ministers to give up discretionary powers. But media reports suggest the Group of Ministers (GoM) on corruption wants the continuation of these powers. The same GoM is examining ‘the proposal of a Lokpal Bill’.
"The nation is impatient at the lack of credible efforts against corruption."— Anna Hazare, Public activist
That said, the Siamese twins of corrupt netas and shady babus have been manipulating the system to gain impunity. The anti-corruption system is not allowed to become strong enough to punish them. For instance, the Chief Vigilance Commission, the apex independent anti-corruption body, is only an advisory body. It can’t probe politicians, only Union government officials—and there too, it has to leave prosecution to the Executive. The provision of giving sanction may have been intended to protect the honest officer, but it is usually the corrupt who hold it as a shield with conniving politicians. PRS Legislative, a research body, points out that as of 2010, the Centre had not sanctioned prosecution to 236 requests from the CVC. Of these, 66% were pending for over three months. Even the Central Bureau of Investigation (CBI), India's principal investigative agency, is seen as being influenced by the party in power. For instance, the CBI’s 2G scam probe saw action only after the apex court began monitoring it.
Clearly, a strong Lokpal can largely fill the loopholes in the system.
Short Of The Mark
“The government’s proposal does not go far enough,” says Harsh Mander, NAC member. “It’s toothless,” says Prashant Bhushan. The Lokpal, as stipulated by the government proposal, will have merely an advisory role. For instance, if a citizen has a complaint of corruption against a Member of Parliament, she’ll have to send her complaint to either the Speaker or the Rajya Sabha Chairperson (depending on which House the MP is from). This may or may not be forwarded to the Lokpal. Once the Lokpal receives the complaint, it will probe the charges and submit a report to the ‘competent’ authority, which will have the final say. If it’s a minister, the Prime Minister will be the competent authority. So, the Lokpal can’t receive any complaint directly, take any suo moto action or register any FIR.
The Jan Lokpal seeks to merge the the CVC and the CBI’s anti-corruption wing with the Lokpal to create a single body against corruption.
A look at the working of some state Lok Ayuktas shows that recommendatory powers have limited outcomes. For instance, Justice Hegde, who heads the Lok Ayukta in Karnataka, has had regular run-ins with the BS Yediyurappa government. Last year, he had put in his papers over the state not cooperating in probing corrupt officials. Worse, tainted officials ticked off by the ombudsman were being given key positions. Similarly, Justice Manmohan Sarin, who heads the Delhi Lok Ayukta, recently recommended the removal of PWD minister Rajkumar Chauhan from the Cabinet for trying to influence a tax evasion probe against a resort. While the minister has not been dropped, the government is said to be considering clipping the Lok Ayukta’s powers.
Coming back to the government proposal, Kejriwal says it’s silent on who will file the chargesheet in the court or initiate prosecution. He points out that the CBI’s role is not clear. If the CBI loses its powers to investigate politicians, then it could completely insulate politicians from any probe whatsoever, he says. Also, the Lokpal has no jurisdiction over officials as that is the CVC’s domain. So, would the Lokpal and the CVC then separately probe the neta and babu on the same corruption case? What the outcome would be, is anyone’s guess.
Too Soft Or Too Hard?
The Jan Lokpal Bill, on the other hand, gives the ombudsman enormous powers. It can entertain complaints directly from the public, prosecute, initiate probes suo moto and needs no reference or permission from anyone. The ‘Jan’ seeks to convert the Lokpal into a single independent body against corruption. The CVC and the entire government vigilance machinery will be merged into the Lokpal, and so will the CBI’s anti-corruption wing. The government proposal gives a time limit of six months to one year to enquire into a corruption case, but there’s no time limit for completing a trial. The civil bill mandates completing a trial in a year.
"The government’s proposal is to create a toothless Lokpal."— Prashant Bhushan, Senior Advocate, Supreme Court
The Lokpal will not be a three-member body, restricted to retired judges, but an 11-member panel consisting of eminent citizens selected in a transparent process. It will have jurisdiction over politicians, bureaucrats and, more controversially, judges of the Supreme Court and High Courts. The bill also seeks to delete Section 19 of the Prevention of Corruption Act 1988 and nullify Section 197 of the Code of Criminal Procedure so the Lokpal need not seek sanction for initiating a probe or prosecution against a public servant.
Mander feels the alternative version is draconian. “There’s a need for a strong Lokpal, not a dictatorial one,” says NC Saxena, another NAC member.
Bringing the judiciary under the ambit of the Lokpal could violate the doctrine of judicial independence. True, not everything is well with the judiciary, but perhaps the way out could be through the Judicial Standards and Accountability Bill 2010. The Bill, under parliamentary scanner, provides for higher judicial standards, accountability and mechanisms for investigating complaints against judges and even their removal. Perhaps making the provisions stronger may be a better idea.
Another touchy issue is bringing the PM completely under the Lokpal’s ambit. The National Commission to Review the Working of the Constitution (2002) was against it. The Second Administrative Reforms Commission concurred: “Any enquiry into a PM’s official conduct by any authority other than the Parliament will severely undermine the PM’s capacity to lead the government.” The government seeks to include the PM under the bill, except on matters of national security, public order, national defence and foreign relations. “This may not allow probing of a Bofors-like case,” says Kejriwal. However, Hazare was pragmatic in his April 6 letter to the PM, : “We are not saying that you should accept the Bill drafted by us. But kindly create a credible platform for discussions.” The 10-member joint draft panel formed on April 9 may sort out contentious points by June 30.
Unflinching Hope
Transparency International ranks India at 87, among the most corrupt countries. But that can change. The most quoted example is of how Hong Kong turned around from a high level of corruption after the formation of the Independent Commission Against Corruption (ICAC) in 1974: with swift convicion of erring officers. A strong Lokpal can do more. Still, it’s just a start. Fighting corruption means getting at the root through real electoral reforms, among other things.
Manmohan Singh is known as incorruptible. But his legacy will depend on what he does to cleanse the system. The people are watching.
Posted by vibha tailang at 10:35 PM
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