In six months, we have gone from a plausible model for the Lokpal to one that lacks the teeth needed to fight corruption at the highest levels.
Last August, the Lokpal was within sight. Anna Hazare, with media help, had galvanised visible and vocal support. The UPA government had accepted several demands of his and put out a Bill which provided for a Lokpal with full powers of investigation and prosecution, and focussed on the top rung of Ministers, legislators and bureaucrats. Special Courts were to be set up to conclude cases within a short time frame, punishments were stiff, and assets gained through corruption were to be recovered. While differences remained on whether the Lokpal would cover lower level officers and enforce Citizen Charters, it seemed that the expression of the sense of Parliament would tide over these.
Unfortunately, the new Lokpal-Lokayukta Bill of the government is a great leap backward.
First, the Bill is retrograde on the relationship between the Lokpal and the Central Bureau of Investigation, the country's premier investigative body. Earlier, it was provided that the Lokpal would have its own investigative arm and total control over investigation. Now the government retains administrative control over the CBI including transfer, postings and promotions. This means that every officer of the CBI is looking to the government for career advancement. Given that the major thrust of any anti-corruption Bill is against those in power, we have a situation here where the potential accused, or persons allied to them by party or pelf, are in control of the investigators.
Few aspects strike at the root of the Lokpal concept as this one. Investigation is the foundation of any case, and the independence of the investigation team makes all the difference. There is no shortage of critical comment by the Supreme Court about the CBI being under the umbrella of the executive. Even the provision that the Lokpal has superintendence over the investigative body comes with a circumscribing rider that no direction can be given to investigate or dispose of any case in any manner. Now to leave the CBI unfettered to reach its conclusion is appropriate, but forbidding the Lokpal from, for instance, asking the CBI why it has not examined A. Raja in the 2G scam seems odd. In that case, as in many others, it was the monitoring hand of the Supreme Court that made the CBI cast its net for the big fish. Surely, a Lokpal specifically designed and chosen to fight corruption should have no less power.
Counterproductive
The portions of the Bill relating to investigation are counterproductive to the object and purpose of the legislation. They require recasting; either the CBI's anti-corruption unit should be brought fully, administratively and functionally, under the Lokpal, or this body should have its own cadre of investigators and the CBI should keep away from corruption cases.
Another controversy is about the inclusion of Lokayuktas for the States along with the Lokpal in the Bill placed before Parliament; this is said to violate the federal principle of division of powers between the Centre and the States as provided in the Constitution. The division of legislative power in the Seventh Schedule to the Constitution is threefold — List I is for the Centre (the Union List), List II for the States, and List III is the Concurrent list where both may legislate, with the rider that parliamentary enactments will override State laws where there is a conflict. The objectors claim that Lokayuktas can only be created by the legislature of each State since only it has jurisdiction over Ministers and officers at the State level.
Article 253
However, this claim can be trumped by Article 253 of the Constitution, which says that where Parliament makes a law for the whole or any part of India to implement an international treaty or a decision made at any international conference, such law will hold good even if it transgresses the federal division of legislative power. The Lokpal-Lokayukta Act is expressly made in pursuance of the United Nations Convention on Corruption, which obliges ratifying States to put in place measures to criminalise bribery and create effective mechanisms for enforcement. India ratified the Convention on May 9, 2011. Thus a comprehensive law for establishing institutions for fighting corruption at the Centre and the States level would be within the legislative competence of Parliament.
A similar enactment is the Protection of Human Rights Act, 1993, passed in conformity with obligations undertaken by the country under the International Covenant on Civil and Political Rights and the International Covenant on Social and Cultural Rights of 1966. That Act covers the country as a whole by setting up Central and State Human Rights Commissions; it was passed as one statute by Parliament. Even otherwise, it is arguable that Entry 1 in the Concurrent List is Criminal Law, and that the Lokpal is meant to enforce the Prevention of Corruption Act, 1988, which is a parliamentary statute criminalising corruption throughout the country and providing punishments irrespective of whether the offence is committed in relation to the Central or State government. The CBI, too, is in the Union List. Further, where a legislative subject is not covered in any of the Lists, it falls to the Union under the residuary entry 97 in List I. Thus there is sufficient legislative bandwidth enabling the Union legislature to enact an anti-corruption Act with nationwide coverage. As an aside, one wonders whether the objectors, mainly regional parties, are acting from lofty constitutional principles or simply resisting tough anti-corruption bodies in their respective States.
Skewed composition
Anther concern is skewed composition of the Selection Committee which gives the powers-that-be the right to choose the policeman who will police them. Then there is the 50 per cent representation to the Scheduled Castes and Tribes, OBCs, minorities and women. While reservation to advance educational or employment prospects has a rationale, what nexus is there between corruption and caste, gender or religion? Will this mark the start of representation on high executive, quasi-judicial and judicial bodies — the CBI, the Reserve Bank of India, the Union Public Service Commission, the Election Commission, etc.? And why bring NGOs under scrutiny here when they are not part of the governance structure and action can be taken against them under other statutes? Will this not dissipate the resources of the Lokpal?
What should be done now? Civil society anti-corruption fighters should close ranks; Team Anna should be less proprietary and should realise that one Lokpal covering all government servants and Citizen Charters makes it gargantuan, excessively powerful and unwieldy. Civil society should put down the non-negotiable demand of a tough and fully empowered Lokpal with full control over investigation and prosecution of the top-rung of governance, and for one Act to operate nationally. It should resist reservation in the Lokpal, but relent if necessary, and leave it to the Courts to rule on the legality of this reservation. Lower-level corruption can be handled by the CVC and a separate body can implement Citizen Charters, giving the Lokpal supervisory and advisory roles here. The fundamental adage in negotiation is that the best is the enemy of the good — an insistence on all or nothing usually results in getting the latter. India needs to get moving on the road to fight corruption, even if the highway is only six-lane and not eight.
(Sriram Panchu is a Senior Advocate. srirampanchu@gmail.com)
Keywords: Lokpal Bill, Team Anna, Hazare movement, anti-corruption movement, UPA-II
I don't think we are going to get this Lokpal Bill any sooner. But the time has come for these old styled politicians to say good bye to the Indian politics and look for some other career opportunities. I think some have already seen the writing on the wall. They knew that this will long before but they could not do anything since corruption is like cancer and you can get rid of it by only killing the person who is suffering from it. So corruption free India is possible only if these corrupt people leave the politics.
An insistence on all or nothing usually results in latter. This is indeed true considering the present form of Government which is seeking to come into power again and this passing of strong Lokpal would do nothing but bite it back. But unity is required to give success to the agitation which has been brought at an appreciable scale by Team Anna. This wouldn't come back and it's "now or never" !
As long as India has a government which schemes and manipulates behind the citizens we will never have a strong lokpal bill. It is in their best interest to stop it because half of them will go to jails if Lokpal is made a law.
The Movement against Corruption has degenerated into vitriolic against the UPA Govt. Worse, the blinkered individuals seeking leadership of the Movement are stoking populist emotions by laying the blame for Corruption at the doors of the very Democratically-elected Institutions which have preserved & nurtured our multi-polar diverse Society for the last 65 years. The people of India elect & mandate the Govt every five years to control & exercise State power on behalf of the people. The people do not expect their Representatives in Govt to be mute spectators of the Official machinery. It is essential that the CBI work under the supervision of Govt. In the USA, the President nominates the FBI Director & even the Judges of the Supreme Court and nobody casts any aspersions on the functioning of the FBI. The demand to remove Govt supervision over CBI is misconceived & politically motivated.
The Lokpal bill was derailed by FDI in retail move by Congress. Team
Anna must negotiate with the government on the Lokpal bill. All demands
of Team Anna may not be met, but some sort of negotiations to evolve a
common ground on Lokpal bill is needed. If CBI is not freed, then we
need an Indian version of Wikileaks.
Attitude of the people should change. When there was a parade for protest against scams, only thousands turned where we have >100 crore people. Politicians think that people are not serious about it.
So the first task for us is to educate the people!! If the protesters were in crores, then politicians change--that is democracy. This what US did and that made them to change in 70s.
Govt. wanted to tire people out and it has been successful to a large extend. A powerful Lokpal has a direct conflict of interest with politicians. Why would they do it. For the Govt. there needs to be either an incentive for passing a strong Lokpal bill or a disincentive for not passing one. Incentive I don't see any but disincentive would be to lose power/elections.
Dear Sriram Panchu Sir,
Appreciate an excellent summary, especially the last paragraph. We need to see the Anna Team as a plan seeder and I think they do not have capacity and resistance to carry and plant a full grown banyan tree. At one point I feel Anna team is carried away from the basic objective of enacting a Lokpal first. I/ we should fight along with Anna team to create/seed some form of basic tough Lokpal and then grow it into a big tree slowly.
...When extraordinary power and extraordinary pay are allotted to any individual in a government, he becomes the center, round which every kind of corruption generates and forms.... When once such a vicious system is established it becomes the guard and protection of all inferior abuses.... It is the master-fraud, which shelters all others. By admitting a participation of the spoil, it makes itself friends; and when it ceases to do this it will cease to be the idol of courtiers.” (pt 2, ch 4)(Thomas Paine, The Rights of Man, 1791-2). The citizens of India will get the government and administration they choose proactively, or by default. If the situation does not change, some will no doubt argue that ‘the status quo is the will of the people’. But since no citizen wants to be robbed or harassed mercilessly, others might wonder whether that half of the population, who are below the poverty line and eke out a bare existence, could not believe.
Dear All, Functional autonomy is required not only for CBI but for all investigative
agencies. You can't expect a miracle in Lokpal by keeping all the police
investigators under the mercy of Political executive. First introduce functional
autonomy to Police, and the practice will reach Delhi at a faster pace. Don' kill the
insects with a bofors gun. Keep the big guns/big organizations to handle higher
corruption. Empower the state units and sister agencies to handle the corruption
at lower level. What difference it will make to CBI to remove from the control of
Central govt to Lokpal
It was not surprising at all infact it is naive to think the Politicians would allow corruption to be controlled, isolated and eradicated. After all, politics is the only profession in India which does not need a qualification but it is the only way to earn quite a lot of money, very fast. Eradication of this income source will be hated by all Netas and Babus, there is really no incentive to turn honest. I think corruption should be legalised, atleast the true cost of living in India can be known to the world. Kapil Sibal says getting the low level bureaucracy within the Lokpal ambit would be too hard given the number of civil servants involved..Lakhs. On the other hand, he wants Google, Facebook etc to monitor millions of daily new posts for anti-congress material. What a joker.
Only passing the lokpal bill corruption will not be diminish.We to change the attitude of people.History tell us that attitudes only changed when circumstances changes.Take the examples of Britain and America in early of 20Th century there was lot of corruption in both countries.With help of education,industrialization people were earning more naturally corruption diminished substantially.We must spend more money and energy on education,erasing poverty,changes the election system if we can change the circumstances of people I am we can diminish the corruption
To me a powerful Lokpal in India seems to be a distant dream. With
the society so apt to forged tactics, it is unlikely to get 100%
corruption free nation. Though we can try and reduce it to a large
extent, and for it we want willful leaders with strong instinct to do
it, and also I see a better future for India as more and more people
are getting good education. Lets be optimistic and work best at our
own individual levels, because its we who make the nation.
A good summary of the events and things as they stand, but the
conclusion is flawed. "... tough and fully empowered Lokpal with
full control over investigation and prosecution of the top-rung of
governance " As to allowing the courts to decide, is it only the courts that have legal knowledge, I guess, even you are a lawyer, is the law diff. inside
courts and outside. And CVC hah ... u must be joking, a body with a
few hundred officers, situated in Delhi, will handle the case of a
chaprasi in some village panchayat, what is the logic in that. Yes
perhaps citizens charter can be handled by another body but with
reasonable time limits. It is not opting for best that is being pursued by the members of the civil society, when a better is
available why go for good. But I agree with one observation, "Civil
society anti-corruption fighters should close ranks".
Expecting any government to clip its own wings, is unrealistic. It was even more cloud-
cuckoo land expectation that the opposition political parties would rally round Team Anna to
get a strong lok pal in place. The reality is that the political class does not want it because it
cuts at the very reason for entering politics: a short cut to unlimited power privilege and
wealth which would otherwise require business acumen or higher learning. The pity is that
some caste-baed regional parties have projected corruption as a rejection of the values set
by establishment elite. Its effects on the poor is neither understood nor highlighted by them.
With even the hitherto considered incorruptible BJP steeped in corruption where they are in
power, there appears no hope that the political class will place curbs on themselves. I am
afraid one day the anger will spill over on to the streets and ordinary people will
indiscriminately hit out.
[Regarding author's two statements- "While reservation to advance educational or employment prospects has a rationale, what nexus is there between corruption and caste, gender or religion?" & "And why bring NGOs under scrutiny here when they are not part of the governance structure and action can be taken against them under other statutes? Will this not dissipate the resources of the Lokpal?"] *** Author has to understand Nepotism built through caste and religion made Indian Corruption-ism more rampant and dangerous than other countries. Until unless upper CasteHindu unethical ideology vacates the political(including Lokpal kind of messaiah...) arena, Preamble of the Constitution can't be established.
The article is very informative. Team Anna must have been aware of all these facts and the possible reason for not implementing above suggestions might be that once we start negotiating, the politicians can bring down Lokpal to Nadir by creating more confusion and wasting time. All one can hope is that citizen power backing JanLokpal threatens the parties politically to accept the bill. Go Go Go Team Anna.
By now it is very much clear that the government's claim to be genuinely interested in passing a strong anti-graft bill is just a facade. And why just blame the govt, even the opposition, the bureaucracy, the corporate houses, and in short every one who is in a position to influence power are all hand in glove in this murky game and do not want a strong bill to see the light of day. No govt of the day would deliberately give in to sign its own death warrant, as the very process of forming a govt through the eletoral process is neck deep in corruption.Unfortunatley there are no easy solutions, and i am not very hopeful of any govt passing a strong bill. But, i am happy at the same time that we have nevertheless made a start however faulty it might seem now.I just hope that there is light at the end of the tunnel.
When the top layer is corrution free the lower layer is that much less corrupt. Make the top few layers of goverment including PM under the purview of lokpal its effect will be felt even at the lowest layer. If you are dead in head your mind too is dead. Hope more such honest learned people about the subject enlighten us, the ordinary citizens. My common sence prevents me from trusting politicians and lawyers.
"India needs to get moving on the road to fight corruption, even if the highway is only six-lane and not eight. "..Very nice one....Very good analysis...Thanks to Sriram Panchu
Can one expect the government to do something which has the potential to put it in trouble? No government with such serious corruption allegations against it can be expected to create a clearly independent and powerful Lokpal.
Sir,you must make one point very clear. As per today the reality is Central Government uses Governor as its tool to create situation in its favor where central ruling party does not have government. Will not Lokayukta create a similar thing through which central government will try to crump d opposition governments of states and also make corrupt things hidden in their own ruled state. This applies for all.
Sir, I have not read the UN convention on Corruption but I would doubt it stipulates the method of appointment and general administration for the anti-corruption body. The centre's jurisdiction would be limited to define actions that constitute corruption and the applicable penalties. You have wrongly extended a supranational law to override a valid and legal political structure within a country.
The author has asked a very crucial question here."What nexus is
there between corruption and caste, gender or religion?"History is
the best answer to this question. In our country who, when, how and against whom used the force, power, money ? We soon come to realise that those were upper castes and/or followers of the other faith who used force, political power, money power, socio-religious power when lower castes and/or followers of the other faith tried to live with dignity and demanded for their rights, by using majority castes, violence, bribe, religious orders, writing books etc. The problems in our country are socio-religious and economic in nature. Use of force, violence, bribe etc. are only symptoms not diseases. What are the diseases? that are two, the first is our historical heritage, four warna based caste system-untouchability, hatred for other faith-intolerance and the second is as P. Sainath stated, the state is working for the capitalists, not for the people.
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