Lokpal Logjam: The pros and cons of the Jan Lokpal Bill-28/12/11

28 Dec, 2011, 04.40AM IST,

Lokpal Logjam: The pros and cons of the Jan Lokpal Bill

Srivatsa Krishna

There is enormous confusion and more heat than light on the ongoing Lokpal debate. Team Anna is wrong about many things and right about many more. First, never before has India, other than the freedom struggle, seen such a strong collective action and for bringing the issue of an anti-corruption institution on to the prime-time national agenda.

The team as a whole deserves a Padma award for this alone and for deepening India's democracy. In fact, if they channelise their energy towards clean politics and electoral reforms as a pressure group, that would be of even higher service to India.

Second, on the issue of jurisdiction, Team Anna is right in asking for original jurisdiction for Lokpal to have powers to institute suo moto investigation via the CBI into anti-corruption cases. For such cases, CBI's superintendence, direction and control must be under the Lokpal, something that the government's Lokpal Bill, 2011, already allows under Section 25. It doesn't give powers of suo moto investigation to Lokpal, which is prudent and should be agreed to.

However, there is a rider. Right from Abhinandan Jha vs Dinesh Mishra 1968 AIR SC 117 till date, in several Supreme Court judgements, the court has upheld Section 173 of CrPC as supreme that the investigating officer cannot be given instructions even by the Supreme Court, so forget about the Lokpal doing so.

Allowing Lokpal, under Section 20(7), the powers to close a case or file a charge sheet, is violative of the purity of investigation as enunciated by various SC judgements. What Team Anna really wants is powers of higher police officer under Section 36 of the CrPC, which the government is not willing to give.

Third, Team Anna's demand for administrative and financial independence of CBI is largely correct, for if the government doesn't give up its powers here, suspicion will always persist that through postings, promotions and annual confidential reports, the government can control the CBI. But independent must not mean unaccountable. Thus, ideally, administrative and financial control of CBI should be with a bipartisan parliamentary committee.

There are outstanding handpicked officers in the CBI but in numerous cases, irrespective of the party in power, CBI has become a handmaiden of the government. The most recent case being an outstandingly honest officer like Shyamal Ghosh suddenly finding the CBI at his doorstep more than 10 years after his retirement, only because the UPA wanted to settle scores with the NDA and an honest officer was sacrificed.

Which honest officer will ever sign another file if there is such a threat hovering over him? Also, it must be known that apart from the director, and the two special directors of CBI, all other ACRs are done in-house inside CBI, so giving control of them to Lokpal won't change that aspect at all.

Fourth, Team Anna is completely wrong in asking for powers to investigate Group C and D employees. Higher-level corruption and transactional corruption require two separate mechanisms. Assume, of the 60 lakh central government employees, if even only 20 lakh of them are corrupt and there just two complaints against half of them every year, the Lokpal would be flooded with 20 lakh complaints, which will grind its machinery to a halt.

The very process of policing every single government employee will start a new anti-corruption corruption, and be impossible to implement. Group C and D can be tackled only through strong IT systems and e-governance such as removing the power of discretion at cutting-edge levels, electronic audit of every keystroke in a transaction, and so on, which have almost removed corruption in land registration in some states.

Fifth, prior sanction for prosecution for IAS/IPS officers (Section 6A of DSPE Act or Section 19 of Prevention of Corruption Act) for acts done in pursuance of their official duty must remain or else, it will disincentivise the honest officer from taking decisions.

Except in a 'trap' or disproportionate assets cases, where this sanction can be done away with. Or else, almost every decision can be proved to have caused presumptive notional loss to the exchequer and proceedings under a simple complaint with the Lokpal can be started by affected parties in the corporate sector or unscrupulous rivals in the government. Section 10 of the UK Bribery Act, 2010, allows for the same permission.

Both the government and Jan Lokpal Bills have significant flaws: the latter because of inadequate understanding of the solution, though having an outstanding understanding of the problem. Both must understand the real issue is not the Lokpal but corruption, and it must not become Anna vs Parliament, and that we must come back to the heart of the debate, which is the huge public anger asking for tangible, effective action against unprecedented levels of corruption in the history of India. The cure must not become worse than the disease itself.

(The author is an IAS officer. Views are personal)