Issue in depth: Dealing
with Corruption
Lokpal Impasse
(The article
attempts to look into the nuance aspects of the debate on the issue of the
Lokpal in context of factors which would be crucial in ensuring its
effectiveness in combating the menace of corruption.) Add introductory
statement here
There
is a popular saying ‘Power Corrupts and absolute Power Corrupts absolutely’.
The saying though oft repeated is still relevant since it is able to bring out a
simple but pertinent view on the effectiveness of any functioning democracy. The
efficacy can be judged by assessing how successfully a democracy has been able
to make the power vested among elected representatives accountable relative to the basic tenant enshrined
in the Constitution of India.
Citizen
voice against corruption
Massive
corruption scams, exposed in recent years through Comptroller and Auditor
General Reports and Supreme Court intervention, shocked the consciousness of
the entire nation. The significant scam that surfaced include the 2G Spectrum, Delhi
Commonwealth Games, Krishna-Godavari water dispute, illegal Iron Ore mining in
Bellary, Mumbai Adarsh society flat allocation and so on. What shocked people
was the sheer size of these scams in terms of quantum of public funds and resources
allegedly being appropriated in undesirable way for private gains with all past
comparisons paling in significance. What is equally upsetting is the impunity
enjoyed by the perceived culprits due to lackadaisical approach of those
responsible in power to bring them to books. Due to public uproar the
government responded with the draft of Lokpal Bill in early months of last year.
The bill was thought to be too weak for the purpose and in wake of this; the
country witnessed anti-corruption protests led by social activist Anna Hazare.
The
first round of protests in New Delhi in April, 2011 resulted in constitution of
a joint drafting committee which included five members from the government side
and five members from ‘India against Corruption’ movement led by the eminent
civil society activists which was widely projected as ‘Team Anna’ in the media.
Joint drafting committee failed to come up with a common draft of the Lokpal
bill as the talks ended in failure. The government came up with own version of
the bill which was considered widely to be too weak to combat the menace of
corruption. The country again witnessed protestors led by Team Anna hitting the
streets in support of indefinite hunger strike of Anna Hazare in August, 2011 with
the demand of strong and effective Lokpal Bill on the lines of the bill which
was popularly called ‘Jan Lokpal Bill’. Due to protests parliament agreed with
three key demands of Anna Hazare when it adopted sense of the house resolution
on the issue of including lower bureaucracy in Lokpal, citizen charter and State
Lokayukta. The exact wording of the resolution adopted was “This House agrees
‘in principle’ on following issues — (i) Citizen's Charter, (ii) lower
bureaucracy under Lokpal through an appropriate mechanism, and (iii)
establishment of Lokayukta in the States. And further
resolves to forward the proceedings of the House to the Standing Committee on
Law and Justice while finalising its report.” It was also promised that Lokpal Bill will be
passed in the winter session of the parliament. In the meantime the draft of
the government bill was referred to standing committee along with ‘sense of the
resolution’ for its recommendation.
Fiasco
in the Rajya Sabha
The
government did manage to introduce the bill in the Lok Sabha though it was
alleged by many that it was diluted version. United Progressive Alliance (UPA)
also managed to get it cleared in Lok Sabha but due to lack of majority, could not
get it passed in the Rajya Sabha. It was widely perceived and also claimed by
the main opposition parties that the government resorted to the parliamentary device
of filibuster and engineered the uproarious scenes in the Upper House in order
to avoid voting on the bill as it feared that the bill may fall.
The
parliamentary debate reflected consensus among the opposition on at least three
basic amendments: protecting the legislative jurisdiction of the States under
Article 252, the appointment and removal process of the Lokpal and autonomy of
the investigating agency. In case the bill would have been passed in the Upper House, the UPA government
would have been forced to come up with a new draft of Lokpal Bill reconciling the
enormous number of amendments moved and would also have to undertake the entire
exercise from beginning.
Since
there was no voting in Rajya Sabha the bill is currently technically alive and
the government has been able to buy some time till the budget session of the
parliament. If the government succeeds in getting the bill cleared in next
session by garnering required majority in the Rajya Sabha, the present government
version of the bill will be enacted as law. In case it doesn’t succeed to
foster majority in the Upper House, constitutionally it will be left with an
option to call a joint session of the two houses of parliament to get the law
enacted.
Constitutional Status and Independence
The
bill which was introduced in Lok Sabha in the winter session along with
Constitution Amendment Bill, 2011 to confer constitutional status to Lokpal was
a new version titled Lokpal and Lokayuktas Bill, 2011 as the government in September,
2011 had withdrawn its earlier draft. The composition of the committee which
will select Lokpal has been the major point of contention between civil society
activists and government. The moot point is that for the Lokpal to be truly
independent, the selection committee should not be dominated by the political
nominees. The government version of the bill is short on this as the four
member selection committee constituting Prime Minister, Leader of Opposition,
Speaker of the Lok Sabha, Chief Justice of India or judge nominated by him
doesn’t ensure that to the desired extent. The government’s eagerness to
control the appointment and removal of Lokpal members is at odds with the
object of the Constitutional Amendment Bill which is to make the Lokpal and
Lokayuktas of the respective states, independent of the government.
Though
its seems fair to argue on part of government that constitutional authorities
once appointed tend to become autonomous over time in their working but the
movement for strong and effective Lokpal which was born out with strong
distrust of the government has resulted in such attempts to be seen as
smokescreen for an otherwise comparatively weak institution. Moreover the
constitutional body should also have the authority commensurate to its stature but
the government bill fails to provide that to the Lokpal. The object of
providing constitutional status doesn’t seem to be in tandem with other
important provision of Lokpal and Lokayukta Bill, 2011 in view of many opposition
parties which resulted in failure on part of the government to garner required
two-third majority to get the constitutional amendment bill cleared. The later
draft of the Lokpal Bill also has provision for mandatory search committee
which will recommend names to the selection committee. There is also a
provision for 50 percent reservation to scheduled castes, scheduled tribes,
other backward classes, minorities and women to provide representation
considering the pluralistic diversity of the country. Some political parties
have argued that providing representation to minorities is unconstitutional as
it tantamounts to providing reservation on the basis of religion. Nine member
Lokpal body headed by Chairperson also has similar provision to provide
representation to particular segments of the society.
Jurisdiction
and Investigation wing
The
new version of the bill as related to the provision for inclusion of Prime
Minister is an improvement over the earlier draft. He has now been included under
the ambit of the Lokpal but with safeguards that two-third (after amendment) of
the Lokpal members should agree to launch inquiry against him. Inquiry though can’t
be related to atomic energy and space, public safety, defence matters,
international relations etc. Such provision it has been argued would
effectively exclude from investigation high profile corruption cases like
Bofors gun scam, coffin case and the recent Antrix-Devas deal.
The
most sticking point of the whole debate has been whether anti-corruption wing
of the Central Bureau of Investigation (CBI) should be brought under the ambit
of Lokpal. The bill cleared in Lok Sabha still doesn’t provide for it. Even the
provision in the bill (of August) that Lokpal would have its own investigation
and prosecution wing was weakened by the standing committee when it recommended
that Lokpal will only conduct preliminary investigation after which CBI would
investigate. The CBI would also have autonomy in its investigation. The bill of
December further dilutes these recommendations when it states that the Lokpal
shall refer a preliminary enquiry against officers of Group A, B, C, and D
employees to the Central Vigilance Commission (CVC). The Bill further says that
after conducting the inquiry the CVC shall send a report to the Lokpal in case
of Group A and B employees and proceed according to the specified procedures in
case of Group C and D staff. The Bill continues in the same direction when it
elaborates that in case the Lokpal finds a prima facie case to exist
against a public servant, then the former may refer it to the CBI for
investigation. It also provides that the Lokpal shall exercise general
superintendence over the CBI similar to CVC supervision presently. Administrative
powers over CBI will persist with government as is the case currently. It has
been contended by civil society activist Prashant Bhushan that such general
superintendence fails to be effective in investigation due to the fact that administrative
powers over concerned officers of the CBI rests with the government. The Bill
seems ostensibly to have increased the jurisdiction of Lokpal to cover lower
bureaucracy by including Group A, B, C, D employees under the ambit of Lokpal but
in effect has significantly reduced its investigating power. This has brought
the effectiveness of the entire institutional mechanism in question. According
to critics such an institutional arrangement between Lokpal, CVC and CBI, will
effectively reduce Lokpal to just a post office who will simply forward
complaints.
Amendment
passed in Lok Sabha
The
debate in the parliament also revolved around whether the Lokayukta in the State
should be covered under Article 252 or Article 253. The bill created the
Lokayukta under Article 253 as India
Another
amendment that has been passed relates to deadlines for investigation. The bill
as introduced contained a provision that investigation must be completed within
six months and that this period can be extended by six months for reasons to be
recorded in writing. No further extension was allowed. The amendment passed has
lifted the limits to the number of extensions. It is likely to jeopardise the
effectiveness of time bound investigation. The third important amendment that
was cleared in the Lower House was done away with the need of reporting to
Lokpal within 90 days of action taken by the competent authority through a
report which was also to be tabled in the parliament. This move thus inexplicably
also takes away the tool to ensure accountability through mutual checks and
balances. Another amendment that was moved in the parliament to make Lokpal
more effective like inclusion of corporate within its ambit has not been
cleared. These three crucial amendments that were cleared after introduction
and before its passage in the Lok Sabha, have the potential to further weaken
the institution of Lokpal.
Citizen
Charter
The
government introduced the Right of Citizens for Time Bound Delivery of Goods
and Services and Redressal of their Grievances Bill, 2011 in the Lok Sabha on
December 20, 2011. Standing committee also recommended constitutional status to
the grievance redress mechanism and a separate law to guide citizens on
procedural matters and to acknowledge a citizen’s complaint within a fixed time
frame. The government has not seen merit in according constitutional status to
it.
Lokpal
and Corruption
Public
awareness created through nationwide debate and discussions during recent times
has certainly succeeded in deepening the understanding on corruption and the
possible ways to tackle it. Now the shallow perception about corruption being just
bribe-taking or a reflection of lack of morality in the wrong-doer has found
its challenge, rather a stronger view has emerged that corruption can be any
instance that goes against impartial public interest. Though different
political currents and popular opinion still differ on many contentious issues
with respect to different versions of the bill but what is needed to combat the menace of corruption
is a holistic and integrated approach which put forth public interest as
supreme while deciding on appropriate policy framework along with political
will, capable of delivering on promise of independent, strong and effective
Lokpal to the country..
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