The draft bill seeks to create an institution that will be independent of those it seeks to police, and will have powers to investigate and prosecute all public servants, and others found guilty of corrupting them.
A number of commentators have raised issues about the provisions in the draft of the Jan Lokpal Bill. They have asked whether it would be an effective instrument to check corruption. They have pointed to the manner in which Anna Hazare's fast put pressure on the government. It is therefore important to understand the provisions of the bill and how it seeks to set up an effective institution to deal with corruption.
Corruption in India has grown to alarming proportions because of policies that have created enormous incentives for its proliferation, coupled with the lack of an effective institution that can investigate and prosecute the corrupt. Under the garb of liberalisation and privatisation, India has adopted policies by which natural resources and public assets (mineral resources, oil and gas, land, spectrum, and so on) have been allowed to be privatised without transparency or a process of public auctioning. Almost overnight, hundreds of memorandums of understanding (MoUs) have been signed by governments with private corporations, leasing out large tracts of land rich in mineral resources, forests and water. These allow the corporations to take away and sell the resources by paying the government a royalty, which is usually less than 1 per cent of the value of the resources.
The Karnataka Lokayukta, Justice Santosh Hegde, has pointed out in a report on mining in Karnataka that the profit margins in such ventures are often more than 90 per cent. This leaves huge scope for bribe-giving and creates incentives for corruption. The same thing happened when A. Raja gave away spectrum without a public auction to companies at less than 10 per cent of its market price. Private monopolies in water and electricity distribution, airport development and so on have been allowed to be created, where huge and unconscionable levels of profit can be made by corrupting the regulator and allowing private monopolies to charge predatory prices. Tens of thousands of hectares have been given away to corporations for commercialisation in the guise of airport development, construction of highways, creation of Special Economic Zones and so on, at prices that are less than 10 per cent of the value of those tracts of land.
Apart from creating huge incentives for corruption, such policies have resulted in the involuntary displacement of lakhs of the poorest people, leaving them on the brink of starvation and forcing many of them to join the Maoists. The beneficiaries have stripped the land of natural resources (a good deal of which is exported) and destroyed the environment. Most ominously, such deals have resulted in the creation of monster corporations that are so powerful and influential that they have come to influence and virtually control all institutions of power — as we see from the Radia tapes.
While adopting policies that thus create huge incentives for corruption, we have not set up effective institutions to check corruption, investigate and prosecute the corrupt and bring them to justice. The Central Bureau of Investigation (CBI) continues to be under the administrative control of the government, which is seen as the fountainhead of corruption. Thus, no action is usually taken by the CBI to effectively investigate high-level corruption — except once in a while when the court forces its hand. Often we see the CBI itself behaving in a corrupt manner, with no other institution to investigate that. The Central Vigilance Commission (CVC), which is supposed to supervise the CBI, has failed to act, since its own appointment process is riddled with conflicts of interest. The Prime Minister, the Home Minister and the Leader of the Opposition (who has been a Minister and hopes to become Prime Minister one day) want to avoid their own accountability and are thus interested in having weak and pliable persons to man the institution that is expected to supervise the CBI. Moreover, the CVC and the CBI have to seek the government's sanction to investigate and prosecute wrongdoers; such sanction is usually not given when it comes to high-level corruption. The CVC depends on vigilance officers in various government departments. They are often middle-level officers from the same departments and cannot be expected to exercise vigilance over their bosses who write their confidential reports. The judiciary, which must try and convict the offenders, has become dysfunctional and is afflicted with corruption due to lack of accountability of the higher judiciary.
The draft Jan Lokpal bill seeks to create an institution that will be largely independent of those it seeks to police, and which will have effective powers to investigate and prosecute all public servants (including Ministers, MPs, bureaucrats, judges and so on) and others found guilty of corrupting them. Since corruption involves misconduct and gives rise to grievances, the draft proposes that the Lokpal will supervise the machinery to pursue disciplinary proceedings against government servants (the Vigilance Department) as well as the machinery to redress grievances. Thus, misconduct by government servants, and grievances, will come under the ambit of an independent authority rather than the government — where the machinery has become ineffective due to conflicts of interest. It is proposed that if the Lokpal finds that a contract is being given for corrupt considerations, it can stop the contract. It cannot otherwise interfere with government decisions or policy.
It has been said that this would create a super-cop with enormous powers and no accountability. There is a misconception that the proposed Lokpal will have judicial powers; there is no such provision in the bill. The need of the hour is to have an effective cop who can investigate and prosecute the high and mighty without interdiction from the very people who need to be prosecuted.
The bill seeks to make the Lokpal accountable. First, it is mandated to function transparently so that everything related to its functioning is known to the people (without compromising the investigation itself). Exemptions from disclosure provided in the Right to Information Act could be included. Secondly, the Lokpal's orders will be subject to review in the High Courts and the Supreme Court. Lastly, the members of the Lokpal could be removed for misconduct, by a five-member bench of the Supreme Court.
There has been some criticism of the Lokpal selection committee and the selection process. Given the erosion in the integrity of most of our state institutions, it was thought that the best bet would be to have a broad-based selection committee and build transparency and public participation into the selection process, while trying to keep out those who are most likely to be within the ambit of the Lokpal's investigations. That is why in the draft bill Ministers were sought to be kept out.
One criticism has been that this shows contempt for democracy. We have seen how the “democratically elected” Prime Minister, Home Minister and leaders of the opposition have normally selected weak and pliable CVCs. So the draft bill proposes a selection committee comprising the Lok Sabha Speaker, the Rajya Sabha Chairman, the Comptroller and Auditor General, the Chief Election Commissioner, the two seniormost judges of the Supreme Court, two seniormost Chief Justices of High Courts, the Chairman of the National Human Rights Commission and the outgoing members of the Lokpal. This proposed composition of the committee will certainly be discussed, and perhaps improved upon, during public consultations and discussions within the drafting committee that will now take place.
It has been said that putting the function of redress of grievances on the plate of the Lokpal would make its work unmanageable. Though the Lokpal will only reorganise and supervise the grievance redress machinery (rather than dealing with each grievance itself), this is an issue that will be discussed openly by the committee. By next week, a website that will formally take in all the opinions and suggestions on the Jan Lokpal bill will be launched and announced. People are welcome to read, understand and send their comments on it, to be taken note of.
One must not, however, be under any illusion that the Lokpal law by itself would solve the problem of corruption. Unless we tackle and change the policies that create enormous incentives for corruption and monster corporations that become too powerful for any institution to control, the fight will be incomplete. The judiciary too is in need of comprehensive reforms.
But an independent, credible and empowered Lokpal is a necessary, though not a sufficient, condition to effectively control corruption. Let us work at least to put that in place.
(Prashant Bhushan is a senior Supreme Court lawyer and member of the joint committee to draft the Lokpal bill.)
Keywords: Anna Hazare, Lokpal Bill, joint committee
Comments:
That was a good article.But the question is, if an elected body is corrupt, then what is the chance of a non elected body to be non-corrupt? Will it not be better if the persons constituting the body have a fixed tenure and once the tenure ends they are out of office forever, and the body should be constituted by a new bunch of people after that.
A non-transparent system of governance is facilitated by subjectivity and discretion in decision making. Guidelines and objectivity coupled with more de-centralisation will lead to progressively reduce opaque practices. Effective panchayati raj has manifested itself as a bulwark against corruption. Authorities charged with curbing corruption, such as for example -the CVC or CBI should be completely independent of government control. Also, as the author rightly points out one should be under no illusion that the setting up of the Jan Lok Dal, is by itself a sufficient measure to render India corruption -free. The conscience of every Indian will have to be thoroughly clensed to weed out corruption. I'm not a cynic, at the same time I'm not unduly optimistic
It is a great beginning, to have this clarification from Prashant Bhushan. Was there a 'political birth' to this self-described 'apolitical' movement? That is a theory being put forward, just as netizens are now learning about a Human Rights campaigner who was being force-fed for attempting fast unto death (http://www.sify.com/news/after-anna-hazare-netizens-support-irom-sharmila-news-national-lemoagbhdfa.html) and discovering inconsistent applications of executive power. The 'Jan Lokpal movement' will therefore do well to place its working in public view, with full transparency and accountability. The writer takes pains to clearly state that a credible and empowered Lokpal is a 'necessary but not sufficient' condition. This is to be admired. The people of India are perhaps placing undue hope on the Lokpal Bill as a panacea for corruption. The people of India should receive the message that 'eternal vigilance is the price of liberty'. Democracy can only be stolen when the people fail to exercise their power, and if we the people fail to deliver our judgement unerringly at the ballot box, things can get much worse than they are.
Several efforts have tried to address various facets leading to corruption and have not been able to take a comprehensive view on the subject. Therefore, there is a need for a mechanism that would adopt a simple, independent, speedy and cheaper means of delivering justice by redressing the grievances of the people, latest being Jan Lokpal bill speared headed by Anna Hazare. How is it with all the apparent earnestness the anti-corruption efforts have been dogged by failures and widespread social misery continues? The answer seems to be directly related to the gigantic geographical scale of the country with billion plus population. Over size is the one and only problem permeating all creations. It is inevitable that a society growing beyond its optimum size, its problems will eventually stifle the growth of the human faculties which are essential for dealing with the issues. Hence it is always bigness, which is the problem. The problem is not uncontrolled growth but controlled calibrated growth; and not big geographical union of nation but its peaceful division in to small states whose leaders are accessible and responsive to public.
Any amount of legislative actions to earnestly tackle corruption in public life is doomed to fail and we will be left whistling in the dark unless fundamental issues are tackled and economic distortions corrected.
The following two great books are like bible as we migrate from the industrial era of pyramidal top-down command and control empires and police states, into the information era where We the People can impose home rule and boycotts that restore morality and kinship.
“The Breakdown of Nations” by
Leopold Kohr
shows that throughout history, people who have lived in small states are happier, more peaceful, more creative and more prosperous. He argues that virtually all our political and social problems would be greatly diminished if the world's major countries were to dissolve back into the small states from which they sprang. Rather than making ever larger political unions, in the mistaken belief that this will bring peace and security, we should minimise the aggregation of power by returning to a patchwork of small, relatively powerless states, where leaders are accessible to and responsive to the people.
In the words of Leopold Kohr, “A small-state world would not only solve the problems of social brutality and war; it would solve the problems of oppression and tyranny. It would solve all problems arising from power.” No country better illustrates the upside of Kohr's philosophy than tiny Switzerland, which is one of the wealthiest, most democratic, least violent nations in the world, with the most decentralized social welfare system. Founded in 1291, the Swiss Confederation may be the most sustainable nation-state of all time. Switzerland has not been involved in a foreign war since 1515 and has remained neutral since 1815. Although it recently joined the United Nations, it has avoided membership in NATO and the European Union.
Kohr calls for peaceful dissolution of nation states into smaller independent entities which can network or confederate as they choose. His book is a bible of the radical decentralist movement and applauded by anarchists, libertarians, greens alike. It's a fascinating read and will make you realize how much you yearn to belong to a real community and not just be an anonymous cipher in a giant nation state.
Small Is Beautiful, Economics As If People Mattered:
By
E. F. Schumacher
Proposes that infinite economic growth is impossible within a finite system, and the inevitable consequences faced by countries like India of ignoring this simple truth. The book argue convincingly for inclusive growth to solve the problems of million villages to basically mitigate uncontrolled and explosive urban growth with all its attendant evils which inevitably follows.
It is good that that a few very-much-needed clarifications have been given by the author.They are all welcome. One only hopes that the envisaged Jan Lok Pal does not become just another institution in the already long list of its ilk. The Act thus passed also does not become another one in the so many existing Anti-corruption Acts. One also feels that corruption cannot be eradicated by legal means only .Essentially it falls in the moral domain.Both have to be mutually re-inforced.
Dear Mr Bhushan: Thank you for a very nicely written article. And many thanks to you for having taking the lead in making our people aware of the malaise of corruption that is eating away the very vitals of our society. All of us claim lineage from very distinguished ancestors - Manu Needhi Chola in the South, Rama, an all India personality or perhaps more appropriately one held in esteem all over the world for his sense of fairplay, virtue and adherence to dharma and King Vikramaditya from the north, to name a few distinguished personalities. All of these personalities were strength personified, drawing this substantially from the people whom they ruled over and made no distinctions when it came to setting a personal example. Unfortunately today's rulers have conveniently stored their sense of accountability to themselves and to the people at large in the impregnable Swiss banks. The country as Shri Advani has pointed out, is ruled by politicians notionally but by bureaucrats at large. Shri Manmohan Singh, Shri P Chidambaram, Shri Pranab Mukheerjee, Shri Kapil Sibal etc who are at the centre of power are leaders without a mass base and so cannot reflect the will of the people nor can they carry the people with them to make meaningful and substantial contributions to society. To complicate the situation further, both the opposition and the ruling parties are effectively being led by a battery of lawyers, distinguished in their fields no doubt, but incapable of reflecting the will of the people and more prone to finding and exploiting legal loopholes to help out their concerned parties and personalities from difficult and embarrassing situations. The Lokpal Bill is indeed praiseworthy, seeking as it does to bring the PM under its ambit - but haven't almost all the state governments found ways and means to defend their incumbent chief ministers from the wrath of the Lok Ayukta at the State level? The problem it appears is not a question of insufficient laws, but a lack of will in enforcing strong and deterrent punishment for the guilty. On the other hand, the Indian Legal System, under the garb of humanism and various other deficiencies, has allowed the guilty to go scot free, with a slap on the wrist. It is here that advocates like your esteemed self can set a personal example of choosing not to defend somebody whose guilt is obvious even at the expense of losing a few lakh rupees as consultation fees.
It was quite an informative article. This movement against corruption is unique in many ways. It quickly gathered so much momentum (in less than 5 days) not because it was a media campaign, as some believe. Corruption is a daily truth for almost every household of the country and nobody needs a news channel to tell them that corruption is rampant in India. Until now it was politicians who used to play with public emotions, but here we saw civil society using same tool against them. Now for the first time we are seeing politicians talking plausibly. All types of high-talks are doing rounds in media like 'super-cop', 'danger to democracy' etc. But common people are not going to listen to this because what they see is truth for them. So goodbye politicians and puppet media, it's hard times for you.....
I do agree we need a strong start to eradicate coruption .The point is that for the larger benefits of masses a mechanism independent of polictics should be constituted. I have a suggestion to set up other independent instituions to look into the working of other departments. Also I would like to highlight that if India has to emerge as a global player than it should get itself rid of corruption and emerge as a better democratic model for other countries to respect.
It is good to hear such articles coming on from the author. It is time we all worked together in this issue.
We also need to make a 'people force' that is able to understand the details of the working proceedings of such special institutions. This can only be possible, if citizens take more interest to understand the constitutional provisions, current existing laws and provisions, because most Indians die without even being aware of our laws. How can we create more awareness is by making Indian constitution, laws all online, accessible to everyone, more cases (law-based knowledge) online such that people can really know how they can cope up with corruption. So, let's make powerful institutions and equally powerful, transparent and democratic execution.
A welcome step in right direction. All the sincere efforts and move in this direction be supported by all irrespective of party affliations or motivated by vested interest. Let us hope and pray for the effective implementation of the so-called transparency mode and i would like to appeal all the leading politicians and the general public to be very alert and put all their efforts to see and ensure that such moves should not go waste and every effort be made that this Lok Pal is ultimately get through the both houses of parliament so as to ensure transparency and the real purpose and aim is achieved at any cost.
Excellent and very informative article! This needs to be publicised widely.
However, I am a bit sceptical when you say that corruption has inflicted the highest levels of our judiciary. Well, there is some corruption - no denying that - but on the whole the judiciary has done a very good job. I think it's a bit 'too much reading between the lines' to say that the judiciary is corrupt. There should be pretty stringent criteria before going into that territory, i.e sanctioning of investigation against the judges.
You might say that who will take care of the corruption in the judiciary - but then, isn't the question 'Who watches the Watchmen? always there. We have to repose our trust somewhere to begin with. By the way, won't it be great if we could push for the independence of the CBI too.
Dear Mr Bhusan,Thank you for writing this article and congratulations to 'The Hindu' for publishing it. There needs to be a regular forum to learn about and discuss this most important Bill, perhaps the most important since independence, to safeguard the future of present and future generations of India. I urge all thinking Indians to actively participate in drafting this Bill and then in implementing / complying with this Law.
One of my concerns has been that laws in India usually make exceptions for certain groups of individuals (not just situations) eg VIPs and others. Why? Why are top civil servants or politicians or judges exempt from some laws? Has this not added to the abuse of their powers? How can anyone be above the law in a democracy?The proposed Bill is like a Human Rights Bill, and to command public TRUST and TRANSPARENCY it must be of universal application. All must be equal in the eyes of the law. I am very grateful to the IAC movement.
Nice Article! Although the author has clarified a few points very well, the article had not touched the punishment part of the bill. Remember, it's the execution of policies that bring changes; merely a policy will be non-effective. What steps can be taken to recover the money lost in corruption? What will be the punishment for the guilty? How soon, the investigation can be ordered? Once found a corrupt policy by any authority, how soon he/she will be awarded punishment. Will the punishment be strong enough to put fear in the mind/heart of others looking for corrupt means for personal gain? There had been a number of bills/laws in the country to curb eve-teasing activities, but still it exists and it has increased in some areas too. This is only because of lack of teeth in the punishment. We need to realize that those involved in corruption would have indirectly resulted huge psychological, economical, physical loss to the poor/deprived. It might even be to the extent of attempting suicide. Hence, the punishment must be strong enough to set an example.
It is quite the natural thinking of Indians nowadays, that any thing could get for a cost. Not only Indians, in general, people created a mindset between money and time. In order to save the time they are spending money for no cause. The thing they(who are spending for bribe) should understand is, the work they are doing is for our cause and we are paying them as Salary. We pay in the sense, the processing charges,taxes,etc are their Salary. Then I don't Understand why people are again and again falling to pay the bribe to fulfill their work. In order to avoid corruption and bribe, self discipline is more required. If that is not there, no law could stop them. However, I `m not saying that we need no law, but need a strong one in which the after effects should be the worst thing they face in their life time.
This article clears all doubts. There is nothing like a 100% perfection in any legislation. What is important, a mechanism for correction and improvement as we experiment with it.
Speaking of the jan lokpall bill, it would have been democratically correct only if it was not a forced verdict by a certain bunch of self imposed activists. It is an unfortunate situation for the people of India that we are to make a choice between an undemocratic dictatorial power as against a democratic government which is inherently corrupt. It appears to be a choice between freedom and fight against corruption. It rightly reminds me of the Patriot Act of United States of America which stole the liberty and privacy of citizens of that nation at the cost of fighting terrorism. My concern is at what price is this fight against corruption meant for? As per the those engineers and tech professionals that have overwhelmingly supported this movement, wouldnt it had been best if they had resigned from those companies and institutions which are a party to the scandals like 2G spectrum and adarsh? It would have been Gandhian way of protesting injustice
It is a good beginning. But it is not possible for Jan lokpal bill /S.C. or any other institution to curb corruption unless we have administrative reforms and most importantly value based politics.Let us hope we will succeed.
More than six decades of independence, Affirmative Action has remained on paper. While Govt and Politicians are least interested, even civil Society is absolutely indifferent at power sharing. Enough talent and competence is available in country from all sections of the society including weaker section. However, weaker section does not get place even in the Draft Committee representing Civil Society or Govt. Moreover, lack of participation of main Opposition in Parliament in the Draft Committee is a tactical blunder. Opposition should have been officially involved in the Drafting process.
Prashant Bhushan writes well. But the Jan Lok Pal Panel, on which he and his father are members, itself is not proper. Out of 10 panel members there are 7 advocates, not a single female member, not even the Opposition Leader who brought the Govt. to book on CVC issue. The good bill will be defeated by the 5 handpicked Ministers of the MM Singh Govt. Hence, a PIL (no.12275 of 2011) was filed today in the Supreme Court of India for better representation. Jan Lok Pal Bill, like the RTI Act, like the earlier Consumer Protection Act which talked of judgment within 3 months, but which now takes about 3 years if the matter does not go in Appeal, will likewise be bogged down. Can Prashant Bhushan tell us how the 3 crore cases pending in courts, which will take 300 years to dispose of, will be reduced by the Jan Lok Pal Bill?
There is no doubt that there is widespread corruption in India and is affecting all services and there is a clear rationale for corruption to be fought and eliminated at all levels. But the Lokpal bill which Hazare and his ultra leftist civil society has drafted will create a Frankenstein Lokpal with unlimited powers and this will suffocate and damage India's governing and various other affiliated institutions and hinder India's economical growth. Hope the five Govt ministers in the committee will not allow the ultra leftist civil society to saddle India with a Franenstein Lokpal. Hazare may be a simple man of integrity, but many of his advisors are pro-Maoists, pro-Kashmiri separatists anti-industries anti-corporates shenanigans.
It is all the way we have travelled with painful experiences of increasing corruptions without any control ,eroding our society since independence.The anticorruption movement has naturally taken a very strong grip of our social sentiment and definitely shape a very much transperent body to suppress the corrupt practices and corrupt individuals.At the same time there should be social revolution to make ourselves just and clean in an inherent manner.We have crossed many platforms by making rules,by breaking rules and making rules for breaking rules.But one nutural call from our core of heart should be to inherit a sustainable national character of transparency in every action.
There's an old saying,'power tends to corrupt people and absolute power corrupts people absolutely.' Whatever be the final outcome of the Lokpal bill draft, this saying should be the guiding light for the drafters as we are seeing how power is corrupting the people at the top of the government.
Every body talked so much about janlokpal bill. It is advocated by media to much. It is, according to government, going to be tabled in monsoon session in parliament. And hopefully will get passed by both houses and will become Law after widespread public uprising. but it would be effective only if it would be implemented effectively. Draft of bill and provision forwarded by civil society are effective. It is good to take entire government and administration under the surveillance of lokpal. What major issue that arise is about the appointment of lokpal. It is thing of greater concern ie what would be the procedure of appointment of lokpal. Either its procedure would be like procedure of appointment of cvc or like chief attorney general of India. If they will select former then it would be ineffective body like other anti corruption department or if we will select later,can't be think we are awarding more power to lokpal than PM.which would virtually be undemocratic.
Very good article, thanks for clarifying the public on this major question. Further I have the following idea to keep a check on lokpal committee not going corrupt. Please see if this can be done. 1. The complaints to Jan Lokpal, the actions and the proceedings should be transparent, made available to public, 24x7. 2. People could review and rate the committee members in a rating of 1 - 10, citing reasons for the same. This evaluation can happen any time for any decision/activity done by lokpal committee. This could happen online or by an IVR based system or by simple postal letter. 3. Once in a year (or two years perhaps) there should be consolidation of these ratings and an appraisal of the committee members.Those with ratings below minimum should be automatically removed, and efforts to be put in place to replace him/her. 4. Both Judiciary and Jan Lokpal to be mutually in control of each other, Jan Lokpal should be able to receive complaints against Judiciary(Because Judiciary is also corrupt) and Judiciary can receive complaints against Jan Lokpal(Because Jan Lokpal can go corrupt as well). This is just a proposal this should be made little more realistic, but this appraisal system should be there. Ideally appraisal system should have been there for all Government officials, MLAs/MPs/Ministers and even for Judges and advocates, but there is no such thing in place yet. Let it be there atleast in Jan Lokpal.
Thank you very much for elucidating the points in the Jan Lokpal Bill and for clarifying the apprehensions of the civil society in a comprehensive manner. I am very sure that this article will clear the doubts of many and the website that you have mentioned on the draft of the bill calling for suggestions from the public, that will be a very good idea.We are all with you and the civil society representatives in the committee.
I agree with Mr Bhushan when he says that the Jan Lokpal Bill is a necessary condition for curbing corruption. If nothing it build on the low tolerance level of the people of India towards corruption. Having said that, it is equally important that the people who are appointed as authority by this bill are deserving of the post. They do not come there because of who their father was or because of how rich they are. I believe that it would be best that they are appointed through a competition like IAS. The youth of India is keen to do something for its country but suffers for a lack of platform. It comes into the bureaucracy only to find itself a part of what it wanted to fight against.
I salute our heroes, Annajee and his supporters, who have made it possible to attempt to redress the balance in favour of the people of India. However, I must reiterate that those who think they are in power are only as powerful as we allow them to be. It was only a matter of time before the people would rise against our failing institutions. I pray that this bill is truly effective against corruption because another revolt against the abusers of their position may not be as peaceful as the recent protest. The people will simply no longer tolerate unbridled iniquity. Justice must be served, and India must be allowed to realise her true potential.
the writer of article has tried to show the phenomenon of corruption but failed considerably. He has held executive responsible completely for corruption but spared judiciary. If judiciary was active in disposing the cases before it and punished the wrongdoers timely, the level of corruption would had been very low. Please go to the courts(district courts)- the judges do not sit before 11am and then go for lunch at 2pm and finish the working day before 5pm. During the time the hearing of 1 or 2 cases takes place. The judges of HC and SC still enjoys the colonial arrangement of summer and winter vacation and during this time the whole judicial administration remains close.It's not a blame game but writer has to make critical analysis of situation otherwise the proposed jan lokpal bill in the name of transperency will create only a FOG.
This article is very good. I do not think, there is anybody who has not experienced in some or the other form corruption in their daily life. People got united to the movement and want something to be done on the corruption issue. We hope that the proposed Lokpal bill may provide some relief to the people with timely intervention of the regulating authority.
The importance of the proposed Jan Lokpal Bill to the welfare of the present and future generations of the people of India, as well as the development of India, cannot be overstated. It will probably be the next most important Act after the Indian Constitution. Clearly it is a complex Bill and requires careful analysis to ensure that all appropriate measures to achieve the stated public interests have been adequately covered, as well as to ensure, from a legal point of view, that it can be smoothly operated and will not be continually frustrated by existing Acts, rules and regulations.I wish to make a comment on the SCOPE of the Bill. I think it will not be enough just to reactively investigate acts of corruption, punish the wrong-doers, redress hardship to the public and recover stolen national property. The Act must also create and foster an environment where the citizens of India choose to act honestly, because honest behaviour is rewarded (pay rise, promotion, recognition awards), and not just because there is a risk of punishment for corrupt behaviour, should one be unfortunate enough to be caught, and that too only when the law catches up with one.I should like to suggest that s31A - Preventative Measures be strengthened in the Bill and given a major section. PREVENTION IS MUCH BETTER THAN CURE, and the Lokpal must not be perceived simply as a punitive, even a vindictive body, some sort of 'Committee of Public Safety' from the French Revolution . s21 - Citizen's Charter may also be shown in that same section.
The 'preamble' may add, 'to encourage reduction of bureaucracy, and scope for collecting bribes, and to receive departmental reports from various Ministries, to monitor progress in this regard.' [One such approach might be through e-governance, where all routine dealings with the citizens are computerised, the rules are published on the websites, forms are downloadable, applications are received over the website, acknowledgement / reference number issued, fees directly transferable to the Government account, receipts automatically issued, straightforward decisions made as soon as possible and communicated on the website with an opportunity to print that decision, etc.) These are all tried and tested technologies already in use in most western countries, and India as the nerve centre of world IT services should have little difficulty in implementing them, if only this Act could provide the required 'motivation'.
s31B - Reward Scheme, needs to be carefully worded. The Commission should only enact the provision to pay 10% of the loot (or any other %), as a last resort, so as not to unintentionally create heroes out of partners-in-crime!
Other Comments: 2.6 / 2.12 Govt Servant/Public Servant - add? 'appointed at any level' including central, state, district, village, corporation/municipal, in any capacity, full-time or part-time or on a contract basis or on an extension of service after retirement”
2.9a mal-administration - please add 'unlawful' after 'such action or the administrative procedure or practice governing such action is ..'
For the benefit of other readers, I have downloaded the DRAFT Jan Lokpal Bill (version 2.1) on 15 Apr 2011 from the IAC website, URL:http://www.indiaagainstcorruption.org/. It proposes, 'An act to create effective anti-corruption and grievance redressal systems at centre so that effective deterrent is created against corruption and to provide effective protection to whistleblowers.' The draft Bill has 35 Clauses, which for ease of perusal I have re-arranged as follows:
SCOPE: [Preamble, 16. Matters which may be investigated by the Lokpal, 17. Matters not subject to investigation, 19B. Receiving and disposing complaints against Judges of High Courts or Supreme Court, 25. Investigation Wing of Lokpal, 31A. Preventive measures, 31B. Reward Scheme]
INTRODUCTION: [1. Short Title and Commencement, 35. This Act shall override the provisions of all other laws, 3. Establishment of the institution of Lokpal and appointment of Lokpal, 2. Definitions]
ORGANISATION, EMPLOYEES and STAFF of Lokpal: 4. The Chairperson and Members of Lokpal not to have held certain offices, 5. Term of office and other conditions of service of Lokpal, 6. Appointment of the Chairperson and Members, 7. Removal of Chairperson or Members, 13A. Special Judges under section 4 of Prevention of Corruption Act, 25. Investigation Wing of Lokpal , 22. Chief Vigilance Officer, 23. Staff of Lokpal, etc. 32. Power to make Rules, 33. Removal of difficulties]
POWERS OF THE LOKPAL: [8. Functions of Lokpal, 34. Power to make regulations, 12. Lokpal to be a deemed police officer, 9. Issue of Search Warrant, etc., 10. Evidence, 13. Powers in case of non-compliance of orders, 13B. Issue of Letter Rogatory, 28B. Monitoring Property Statements?,11. Reports of Lokpal, etc.]
FUNCTIONING OF LOKPAL: [14. Functioning of Lokpal, 29. Power to delegate and assign functions, 15. Making a complaint to the Lokpal, 16. Matters which may be investigated by the Lokpal, 17. Matters not subject to investigation, 18. Provisions relating to complaints and investigations, 21A. Receipt and disposal of Grievances, 21B. Allegations of misconduct shall be received and enquired by vigilance officers, 21C. Allegations of misconduct and public grievances with deemed vigilance angle under section 21A shall be dealt in the following manner, 30A. Transparency and application of Right to Information Act, 30. Time limits, 26. Complaints against officers or employees of Lokpal, 27. Protection, 19B. Receiving and disposing complaints against Judges of High Courts or Supreme Court
Recovery of Loss to the Government and punishment: [19. Recovery of loss to the Government, 19A. Punishments for offences, 31. Penalty for certain types of complaint]
WHISTLE-BLOWER PROTECTION: [20. Protection of Whistleblower]
MISCELLANEOUS: [21. Citizen's Charter, 28. Public Servants to submit property statements, 28A. Properties deemed to have been obtained through corrupt means, 24. Repeal and savings].
Jan lokpall bill shows a perfect way to lead a corruption-free environment.As the bill includes members who are not elected democratically,this shows some disrespect to the constitution.But it should not be big issue where India is being weakened against corruption by those who are elected.Anna hazare has done a great job by now but the big question is that will it work? The answer lies in the selection of the committee members,I think they are perfect for it because the committee members are those who did a good work against corruption and fought against it throught their life.
We do not have a democracy in this country but just a 'chorocracy'. Unless we change our electoral laws, crooked characters will always form the Government. The root of all this is 'black money'. Let us first root out black money and change the method of financing elections.Bribing voters and coming to power is the rule of the game. These freebies are paid for with taxpayers money. Just as we have prepaid and postpaid mobile tariffs we have prepaid and postpaid bribery in elections. The freebies offered and given lead to a lot of corruption. For example the Deepam scheme of the TDP caused a lot of unauthorized people to get gas connections.This has resulted in a shortage of gas. Similarly, though natural gas was discovered in AP it is available in Gujarat but not as piped gas in AP. There is a curious connection between the attack on Reliance outlets in AP and Mr.YSR asking for special rates for AP. The people of AP have suffered due to YSR's arm twisting.Yet he is counted as a hero of the Congress but none less than Sonia Gandhi. If piped gas had come in time to AP the subsidy cost for the Central government for gas would have come down.These aberrations occur due to crooked people getting elected by crooked means who form part of this 'chorocracy'.
Unless we get the right people to rule us corruption will continue. Politics in our country is a money making profession and not a means of social service to the 'aam admi'. Unfortunately like many other professions it is inherited by many by right or wrong means.The Jan Lokpall Bill is a good beginning but unless we get the correct servants in Parliament and Assemblies and correct servants in the bureaucracy there will be no major change in the level of corruption.I think Shri.Hazare should now take up electoral reforms as the next platform for protests.
Interesting arguments although I am still not fully convinced that the proposed Lokpal can be incorruptible and that there are enough mechanisms to make it accountable. But this certainly sounds promising. All those who supported Anna Hazare should realize that this is just a beginning. Instead of declaring 'victory,' we should demand that the drafting committee conduct nation-wide public consultations to allow participation of as many people as possible in the drafting of the bill. And many people should actually participate - supporting Anna Hazare on Facebook doesn't solve the problems.
Bhushan writes: "Under the garb of liberalisation and privatisation, India has adopted policies by which natural resources and public assets (mineral resources, oil and gas, land, spectrum, and so on) have been allowed to be privatised without transparency..." In general, there has been a heavy claim and orchestration of pro-people sentimentality of the nominated authors of the Jan Lokpal Bill. I am not sure how it gels with the fact that some of the members have relentlessly supported and fought on behalf of international companies pressing for patent laws even in essential drugs like cancer and HIV/AIDS. Defying calls, requests and protests by millions of people to allow manufacturing of cheaper drugs, the learned lawyers on board have chosen to serve the private international interests. We'll do well to remember that corruption of monetary nature is just one kind of corruption.
My personal experience is unless the OFFICIAL SECRETS ACT is demolished,truth cannot come out under certain circumstances.Corruption does not remain bound in terms of a simple tender based commercial transactions.It involves generating QR( Qualitative requirements) by government departments for some activity also and manipulating specs suiting to a vendor purposefully.
I think the process has finally been made a bit more transparent by concerted public agitation against ALL incentives in the federal system for corruption. BOTH AT STATE AND CENTRE. Even inside EU-27, The Ombudsman Office was circumscribed by member governments to limit its scope and function. No NATIONAL bureaucracy wants to be controlled and checked and, for sure, subject to legal scruitny. However subsequent European Parliament amendments made The EU Ombudsman a bit more independent and relevant to administrative oversight of decision making by official institutions.
Indian constitution does not provide for an Ombudsman. Therefore, if that's what is politically demanded by the public, Government will eventually relent give in, me thinks. However the incentive for corruption - at all levels of public administration and jurisprudence - will only get more volatile and incongruous principaly because India is a huge nation-state and growth will generate inevitable financial corruption.
For example, if the License Raj (until 1991) was an incentive for bureaucratic mismanagement/corruption by private sector and government, controlling transparency of public administration will not be easy with GDP growth at close to 10%. Finally, Office of Ombudsman cannot be run by a Committee. It must be vested in a capable single person with public integrity and capacity for independent investigation and judgement - wherever the culprits may exist in the system.
Your effort is indeed commendable and needs the support of every citizen of India. I am sure that your bold efforts along with Anna Hazareji will certainly pay rich dividends in the future and India will become more progressive and transparent. I do however, crave indulgence to offer a few comments for consideration as below:
1-I do think that bad Government is any day better than no Government, however the bill must ensure that the Lokpal does not become a super government in it's own right, which would then lead to the creation of another super body for supervising the affairs of the unelected body of Lokpal appointees.
2-Along with Lokpal ,steps should be initiated to make our States more independent, powerful and smaller in size to enable them to be managed efficiently like small nations and they in turn could take steps worth emulating by others for achieving better transparency and efficiency.
3- Electoral reforms enabling honest people to get elected and organize corruption free elections are equally important.
4-Our present bureaucratic system, originally developed by the British Government to rule a slave country should have been revamped immediately after getting independence to manage our big independent nation. Our wonderful Bureaucrats today are neither accountable for any lapses nor do they have any sense of belonging to any particular ministry or department. They are shifted/transferred frequently from ministry to ministry leading to a lack of effeciency in adminstration and this sense of apathy and ineffeciency in our various ministries has led to a similar culture being transmitted to people working below them in their departments.
5. In 1974-75 an unofficial committee consisting of Late Shri Mohd Fazal, Planning Commission Member; Dr Malthi ,Director Inst of Applied Manpower and myself when I was the Director of Technical Education, U.P had drafted a report suggesting changes in the process of selection, training and postings of IAS officers but all that was nipped in the bud by the all powerful lobby of bureaucrats.
6- Late G. L Nanda did raise his voice against increasing corruption but in vain .
7- Like Lokpal, the present CBI and CVC should also be made fully independent of government control. In conclusion, it is true that the lobby of corrupt people in Government and in the Bureaucracy is too powerful to oppose changes in the present system and our only hope in the nations struggle against corruption and bad government will be the strong support of citizens from every strata of our society who can come forward to do the needful.
An anti-corruption commission is in place in many civilized democratic countries in the world and such an institution is certainly welcome in India as well. Really,it is overdue. The appointees need to be above suspicion and best recruited from the judiciary and approved by the parliament. They will have limited tenure and they should be answerable to the Supreme Court and a combined parliamentary commission. They need to have power and resources to investigate and bring charges against corrupt people without fear or favor. Once the evidence is obtained, normal legal processes would apply. Justice delayed is justice denied. People should demand for more courts and quick resolution of cases. It is a reality that the most effective opposition in any country where there is press freedom is the public media and a politically alert public. After all, they put the Government in office! India is reaching that maturity now!
As the author has pointed out, it is the post economic liberalisation policies that are the root of the problem of corruption. Why not work on changing those policies? Behind those policies lie the interests of other nations in opening Indian markets and exploiting our natural resources. These policy changes were agreed upon when India sought their economic assistance. Cut those economic shakles and we will free the hands of our policy makers to make policies in the interests of our people.
Dear Mr Bhusan, Most people in the country are grateful to the IAC Movement for proposing the Jan Lokpal Bill, and people are praying that they have found a new Mahatma in Mr Hazare. The Leadership of the IAC are trying hard to make the movement the Indian People's Movement, so that it draws on the strength and support of 1.2 billion people. Everyone needs to stay focused on the job in hand and not allow themselves to be side tracked into blind alleys and confusions that may be put in their way by the people ideologically opposed to the ideas of of the Jan Lokpal Bill. Gandhiji and his followers were not distracted even though incarcerated! The Jan Lokpal Bill appears to be a crucial piece of legislation, and a lot of people are pinning their hopes on it to deliver in the future a better, happier India to live in. So discussing the details of it now, during its early formulation stages, is not only important, but essential. Extensive public participation and wide public debate is essential for that.
Many people are very grateful to The Hindu for providing a forum to do that and I commend 'The Hindu' for this public service to the people of India. (I hope that they will provide a separate web page devoted to this, if appropriate.)
While it is important to initially focus on the membership, search, selection, appointment of the Lokpal and his deputies (or co-members etc), for they will be responsible for initial set up, in the end it will be the Lokpal's range of services to the people, and how effectively they are delivered, that will matter. The rest of my note relates to these areas. I DEFINITION
The Jan Lokpal Bill v 2.1 applies to 'Public Servants' defined at 2.12, which includes PM and Ministers (What about CMs and State Ministers?), and for the fuller meaning of 'Public Servant' refers to 2(c) of Prevention of Corruption Act 1988 (which is quite comprehensive). So is there maybe some duplication here? More importantly do Definitions at 2.5, 2.6, 2.11 adequately cover the wide scope envisaged in 2.12?
If the reach of the Bill is as wide ranging as is suggested above, do the following other implications also need to be considered?
II CATEGORIES OF CASES
Are there at least five major categories of cases – some criminal cases and others civil cases - some involving very complex money laundering, great ingenuity, national and international organisations, while others involving the good old human harassment and hardship method to extract the maximum bribe possible.
To illustrate my point, I categorise them into (1) COMPLEX MEGA PLUNDERS eg alleged 2G (at International/National/State level), 2) COMPLEX LARGE CORPORATE eg alleged Mining, Commonwealth Games(at International/National/State level), (3) LARGE SINGLE CASES eg alleged Adarsh Building [involving one or a few specific geographical locations], (4) MEDIUM/SMALL but ENDEMIC eg alleged Millions of cases of bribery and corruption every day [usually each one at a single place, but the cases will be spread throughout the country], 5) MAL-ADMINISTRATION (with or without major immediate financial abuse)
III INVESTIGATIVE PROCESSES: If the cases covered are as wide ranging in their complexity and geographical reach, as stated above, would a single investigative process be suitable for all cases? Again to illustrate my question, I wonder if there would need to be several processes as follows:
Would CASE 1 need a centralised investigative department of its own? With exceptional powers and great speed to act, staffed by multi-skilled experts CBI type /legal/forensic accountants/ expert bankers familiar with tax havens, international co-operation including that of foreign governments etc?
Would CASES 2 and 3 need central teams that are a sub-set of Case 1 resource, who can be deployed in individual cases whether acting from the centre or out of any specific local base, depending on the locus of the alleged crime being investigated. They would tend to have limited international complexities?
Would CASES 4 and 5 have to be dealt with at a local level? Would they be so numerous that Local (Vigilance?) Police may have to be drafted in to help investigate? (Would they need to be brought under the direction of the Lokpal, rather than their present bosses and political masters, to be able to deliver an effective service?) Would the LEAD CASE OFFICERS need to be centrally recruited and trained, to maintain a high standard of investigation?
IV ORGANISATIONAL STRUCTURE: If there would be the above variety of Cases and different Investigative Processes, would the Lokpal need to have a CENTRAL and a STATE-WIDE organisation, all monitored centrally for outcome and quality standards? Which would be in addition to a Directorate, and the usual full range of Support Services? Would this mean that Search and Selection at Members / Senior Judges Level is important, but also that Recruitment and Training of staff at all levels of Investigating Field Officers will also be of crucial importance to successful Implementation of this Act?
Would on-going Quality Assessment of Outcomes through Post-completion Audits, where Senior Field Officers are rotated into the Audit Teams, become necessary?
V. AIMS OF THE BILL
Finally, if at least in a decade's time the Lokpal needs to re-focus away from investigation and punishment, and more on to prevention and process improvement, would the Aims of the Lokpal need to be broadened into at least the following three areas?
(1)CREATING AN ENVIRONMENT THAT ENCOURAGES HONESTY or PREVENTION [including Citizen’s Charter, Protection of Whistle-blowers, and hopefully adding new measures and strengthening existing laws to reduce the opportunities for (i) bribery and corruption through for example e-governance and transparency, and (ii) money laundering, ie turning black money into white]
(2) ENFORCEMENT [Investigation, Recovery of national asset (hopefully adding/strengthening measures to recover monies spirited away in foreign tax havens and/or transferred into family/associates’ names), Restitution to and Recompense for citizens, Punishment of perpetrators to deter recurrence. (I am wary of the proposed Reward Scheme, because giving 10% of the loot to shop the fellow culprit, may lead to ‘scams simply to collect this loot’, making heroes out of partners-in-crime, and may raise prosecution difficulties on grounds of ‘entrapment’.)]
(3) INVESTIGATION [bringing together ALL relevant investigative bodies – at central and state levels - to deliver an effective service to the people of India].
Thank you for sparing the time, and my thanks to The Hindu for giving me the opportunity.
jan lokpal bill is a giant step towards the developing journey of India since last64 years. It's just not an instrument to stop corruption but also to secure the rights given to all Indians from independence. Now the journey from under developed to developing begins, whereas earlier it was just a shivering start now we are proud to be Indians but we still have to carry on this otherwise golden bird will never return.
Cannons of Financial Propriety are very clear. In the exercise of their financial powers, the sanctioning authorities must pay due regard to the following principles:- (1) The expenditure should not prima facie be more than the occasion demands, and that every Government servant should exercise the same vigilance in respect of expenditure incurred from public moneys as a person of ordinary prudence would exercise in respect of the expenditure of his own money. (2) No authority should exercise its powers of sanctioning expenditure to pass an order, which will be directly or indirectly to its own advantage. (3) Public moneys should not be utilized for the benefit of a particular person or section of the community unless - (i) the amount of expenditure involved is insignificant ; or (ii) a claim for the amount could be enforced in a court of law ; or (iii) The expenditure is in pursuance of a recognized policy or custom. (4) The amount of allowances, such as travelling allowances, granted to meet expenditure of a particular type, should be so regulated that the allowances are not on the whole sources of profit to the recipients. (Para 116 0f Finance Code Vol.I ) Have these cannons been followed in the various legislations and orders?
I do agree that the corruption has reached to highest level but only goverment employees are not corrupt, persons employed in private institutions are also corrupt. I feel that the tone of the Team Anna Hazare is not appreciable do'nt abuse like political party i refer to the statements made by Mr. Kejriwal and Prashant Bhushan/Shanti Bhushan. There are certain problems which may arise after Lokpal being effective. I am a Bank Officer and doing my job most honestly and sincerely but I feel that I can be punished at any point of time by the Lokpal because I have to deviate from rules very often to run the business. Please consider that very stiff rules may check decision making capacity and entrepreneurship of the civil servants. In case I commit any misdeed there is a provision for departmental proceedings against me who are well aware of conditions under which I am working.Suppose the same proceedings being carried by Lokpal people - they will not consider the working culture of Bank. Similarly any enthusiastic Lokpal can wrong decisions for example Sri Atal Behari Bajpai, while he was working as P.M. took a decision to keep the forces alert and shifted them from this border to that border thereby incurring crores of rupees in the futile excertices for which he can be held guilty by the LokPal.Similary arms deals by the government. There is always a chance of punishmnet whether there is corruption or not. Yes a Lokpal can initiate such actions. I want to say that please dont be so strict or the decision making by the Civil Servants will be badly and worsely affected which is not good for the country. There should be a professional approach and that much liberty be given. Corruption is human nature, everybody wants favours for himself. Judicial Reforms are demand of the time because the judicial system is more responsible for accelerating corruption. Delayed judicial decisions have wiped out fear of being punished. I also suggest please dont be guided by the TV Channels - avoid them or they will create a false image which will not allow you to take a fair decision. This is a golden chance for us just because govenment is under pressure after disclosure of Scams. Please be a party to emergence of a Lokpal even if it is not as desired by you. Further amendments can be done once it came into existance.
As Bhushan says rightly the Jan Lokpal is a first step in the right direction. Indians have a tendency to cut each others throat and nothing is best exemplified by political machinations when the interests of the ruling party and the opposition converge where earning a quick buck is concerned. Sending a weak bill to Parliament the Congress hopes to outwit Team Anna. This is very dangerous as the people are really angry with the way our elected representatives hehave. Congress cannot add insult to injury. Hope it sees reason before it is too late and avoids digging its own grave.
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