The success of the institution of Lokpal will depend on limiting its scope to the very top of the hierarchy. That will make it manageable and lead to accountability down the line.
The drafting of the Lokpal bill is back in the news after the round of Assembly elections. The co-chairperson of the high-power committee involved in the drafting has said that progress is slow and that the June 30 deadline is likely to be missed. Some civil society groups made suggestions on what the Bill should contain. The chairperson of the drafting committee responded with alacrity, sensing an opportunity to let the government have its way by claiming divisions in civil society.
Apparently, important differences remain between the representatives of civil society and the government, especially with regard to bringing the Prime Minister and the members of the higher judiciary under the purview of the Lokpal. Two issues arise: how important is their inclusion; and will missing the June 30 deadline by a few months to get a good Bill in place make a big difference, given that the Bill has been pending for 42 years?
If it is indeed the magic wand that will eliminate corruption rightaway, then it is urgently needed. Those in favour of the Lokpal suggest that it will check the vested interests that are spreading corruption in society. But they are not able to convince the doubting Thomases who argue that it can neither be the panacea for all ills nor can it root out the endemic corruption in society in one go. The sceptics, who have often been in the forefront of the fight against corruption, need to be differentiated from the vested interests which have been stalling the Bill for their narrow ends. The sceptics are not for needless delay but want prioritisation of the steps to fight corruption.
The Lokpal is presented as a watchdog for the corrupt system. What has the experience been with the many watchdogs that are already in place? There is the Central Vigilance Commission to oversee the functioning of the investigative agencies, but we know that it has been largely ineffective. We have the Election Commission to see that elections are conducted in a fair manner, and it is seen to be successful. But the political system as a whole seems to be only getting more corrupt than before. There are the legislatures, which are meant to be accountable to the citizens and oversee the nation's functioning. But the country is witness to the growing criminalisation and the penetration by money power among their members. The judiciary is supposed to see that justice is done — which is but another form of accountability. But increasingly, judges at different levels have been accused of corruption. There are the lesser watchdogs, like the intelligence agencies and the regulatory bodies, but they too have been accused of a growing degree of corruption. Given all this, can there be a perfect Bill that will somehow insulate the Lokpal against the corruption in society?
Today, illegality is widespread in society. It affects almost all social, political and economic aspects of life. Tackling illegality is the most urgent task. Thus, while the Lokpal may not be the one thing on which all attention needs to be focussed, it is perhaps the most important step in the drive against corruption.
It is not that the nation does not know what should be done to deal with the black economy and the associated illegality. Since the 1950s, there have been dozens of committees and commissions that have gone into aspects of it. They include the Kaldor Report (1956), the Santhanam Committee (1964), the Wanchoo Committee (1971), the Dagli Committee (1979), the NIPFP Report (1985), and the Kelkar Committee (2002). Then there are the reports of Estimates Committees, the Comptroller and Auditor General and the Public Accounts Committees.
The reports contain thousands of suggestions — and hundreds of them have been implemented. These include the reduction of income tax rates (from 97.5 per cent in the highest bracket in 1971 to the present 30 per cent), elimination of many controls (relating to monopolies and restrictive trade practices, foreign exchange regulation, licensing, trade controls, and so on), demonetisation of currency, voluntary disclosure of income, issue of bearer bonds, acquisition of undervalued property, introduction of value added tax, and so on. Yet, the size of the black economy has grown.
Various movements against corruption (such as the ‘Nav Nirman' in 1972) or changes in laws (such as the introduction of the Right to Information) and the corresponding steps to fight corruption have been thwarted or diluted by the corrupt. People have often been disappointed by these failures and have become cynical. Yet, they have periodically reacted with positive outcomes. The subversion of steps to curb the black economy and the associated corruption is engineered by the ruling elite consisting of the triad of corrupt politicians, businessmen and the executive. Since they make huge incomes through the black economy, they have little incentive to curb their own illegality by checking that economy.
Can there be a perfect law that cannot be subverted? No such legislation has fully solved the problem it set out to resolve. The Indian Constitution is often praised, but it has had to be repeatedly amended and there have been problems. In practice, a law has seldom turned out to be as it was drafted on paper. Human ingenuity is such that it finds loopholes to subvert the law, for the spirit is not willing. Will the same fate meet the Lokpal Bill?
Take the law which is meant to prevent the crooked from deliberately letting their cheques bounce. Or the one that allows for the summary trial of cases where a signed lease exists and where the tenant does not vacate the property automatically when the lease ends. Today, lakhs of cases relating to these provisions are pending in courts because the courts allow delays. The crooked then cock a snook at the law while the honest go on the back foot. This happens because there is lack of accountability among judges — if a case drags on, who are they answerable to? The party that suffers due to delays cannot take a tough stance for fear of antagonising the judge.
How can accountability be built into the system? The judges can be accountable to either their conscience or to a higher authority. Today, greed and decline of morals have made the former a rare commodity. In the case of the latter, the chain ends with the Chief Justice. If he demands accountability, it would percolate down. Similarly, if the Prime Minister and the Chief Minister demand accountability, the entire administration will follow suit.
Conversely, even if the Prime Minister or the Chief Justice is honest but practises non-accountability and arbitrariness, that spreads downward and corruption grows. Information about wrongdoings in high places is collected by the intelligence agencies, but is not acted upon. Such inaction will no more be feasible if the Lokpal Bill brings the Prime Minister and the Chief Justice of India under its ambit.
But can it bring about accountability in the political process, something elections have failed to do? Some doubt it, since the appointment of other constitutional authorities has run into controversies and that could happen in the case of the Lokpal too. How can the honest get to the top when corruption is endemic, except by accident?
Be that as it may, the surest way to subvert the Lokpal is to make the institution widely applicable to all manner of corruption. It will get embroiled in all kinds of wrangling and become like the courts, choked with cases. India has enough laws that can curb corruption at various levels, provided there is implementation; only accountability can ensure that. Thus, it is critical that those higher up in the hierarchy demand accountability from those under them. The buck would only stop end at the top — with the Prime Minister and the Chief Justice of India at the Centre and the Chief Minister and the Chief Justices of High Courts in the States. That is what the focus of the Lokpal (and the Lokayukta) should be. Even then, without pressure exerted through public movements, the Lokpal can get subverted.
In brief, in the last six decades, many steps have been taken to curb the growing illegality but these have not delivered results due to lack of accountability in the system and the decline of self-regulation since greed has been placed on a new high pedestal. It is argued that the setting up of a Lokpal is not a magic wand to eliminate corruption but an important step towards that end. However, its success will depend on limiting its scope to the very top: that will make it manageable and lead to accountability down the line. Then only will laws be followed both in letter and spirit and become meaningful.
(The author is with the Centre for Economic Studies and Planning, School of Social Sciences, Jawaharlal Nehru University. E-mail: email@example.com)