The Lokpal is designed to be a comprehensive anti-corruption institution independent of the government, empowered to effectively investigate corruption of all public servants. But most of the critical elements in this vision have been rejected.
The latest draft report of the Comptroller and Auditor General of India (CAG) on hydrocarbon production sharing contracts and the transfer of oilfields to Reliance is only the latest of the mega scams to surface in the country. The breadth and depth of corruption in India is clear from the country's plunging ranking in Transparency International's global corruption survey. Corruption has come to affect every citizen in the country. Bribes have to be paid for ration cards, passports, building permits, and for doing even normal business. Street vendors and rickshaw pullers are forced to pay bribes for exercising their fundamental rights. Villagers are forced to pay bribes for getting their wages under the Mahatma Gandhi National Rural Employment Guarantee Act (NREGA) or for any other entitlements in other schemes. High-level corruption is plundering the public exchequer, distorting government policies, and creating a criminal mafia, which has come to dominate all institutions of power. Low-level corruption is making life impossible for common citizens.
A major reason for this rampant, widespread corruption is the lack of an independent, empowered, and accountable anti-corruption institution that can be trusted to credibly investigate complaints of corruption and prosecute the guilty. The Central Bureau of Investigation (CBI) is controlled by the very people who are the fountainheads of this corruption and is required to seek the permission of the very people who need to be investigated and prosecuted. The Central Vigilance Commissioner of India (CVC) is selected by the Prime Minister, the Home Minister, and the Leader of Opposition, who have a vested interest in ensuring that weak bureaucrats get selected. Moreover, the CVC has only recommendatory powers and most of his or her recommendations are disregarded by the government, which wants to protect corrupt public servants. The courts take years to conclude trials and there is also considerable corruption in the judiciary because of the lack of accountability of the higher judiciary and the lack of an effective anti-corruption agency to investigate corruption within its ranks.
This is why we have been demanding the constitution of an independent Lokpal institution — which will be completely independent of the government, empowered to effectively investigate corruption of all public servants of the Central government, including the Prime Minister, the judiciary, etc. (with Lokayuktas in the States to investigate public servants of the State governments and local bodies), and accountable in multiple ways to ensure that any corruption in the Lokpal institution would be immediately investigated and action taken. This is exactly what is required by the United Nations Convention against Corruption (UNCAC), which has just been ratified by India after much delay.
In the Jan Lokpal Bill proposed by us, the 11-member Lokpal would be selected by a broad-based selection committee consisting of the Prime Minister, the Leader of Opposition, the Chief Election Commissioner of India (CEC), the CAG, two Judges of the Supreme Court, and two Chief Justices of the High Courts. The selection would be done transparently by first setting up a search committee consisting of retired CECs and CAGs who would first call for public nominations, then prepare a shortlist which would be put up on a website for public comments about the shortlisted candidates after which the selection committee would finally select the members.
This 11-member Lokpal would have a full investigative agency under its control through which it would get complaints investigated. If corruption is found after investigation, the corrupt public servant would be prosecuted in special courts within the judicial system. The Bill provides that the number of special courts to try corruption cases would be increased to ensure that trials are completed within a year. Proceedings for removal of the corrupt public servant would also be initiated by the Vigilance Department under the Lokpal, which would give a full opportunity for hearing to the public servant. The Lokpal's final recommendation for penalty against the public servant would be binding on the government. This would ensure that the bosses of the corrupt public servants who are often complicit in their corruption cannot protect them, as is happening today.
The Lokpal would thus be a comprehensive anti-corruption institution independent of the government. The 11 members of the Lokpal would be accountable to the Supreme Court of India, which would examine complaints against them and order their removal. The investigative and vigilance machinery under the Lokpal would be accountable to independent complaints authorities created in each State, apart from to the Lokpal itself. Moreover, the Lokpal institution would be subject to a financial and performance audit by the CAG. Most importantly, the functioning of the Lokpal would be mandated to be transparent and the details of its investigations would be put up on its website. Also, the orders of the Lokpal would be subject to judicial review by the High Courts and the Supreme Court.
In the last two meetings of the Joint Drafting Committee (JDC), the Ministers representing the government rejected most of the critical elements in this vision of the Lokpal. They see the Lokpal as an essentially 11-member institution where all decisions would have to be taken by these members themselves. Instead of a comprehensive anti-corruption machinery, they see it as an institution to look at a few cases of high-level corruption. Even there, they do not want the Prime Minister, the higher judiciary, and the Members of Parliament who take bribes for voting or speaking in Parliament to be covered. Also, they want the Lokpal to be merely a recommendatory body like the CVC in matters relating to the removal of corrupt public servants.
They were neither willing to debate these issues publicly nor even willing to place the audio records of the meetings on a public website. They were also not prepared to debate these issues further between us. It has therefore been decided that the Ministers would prepare their own draft and we would prepare our draft of the Lokpal Bill, each of which would be placed before the Cabinet, which would decide which Bill would be placed before Parliament.
We are repeatedly being told that laws have to be made by the elected representatives of the people and civil society has no role to play. This view shows an arrogance of power. Those running the government have forgotten that they are merely the representatives of the people and they must run the government and make laws as per their wishes. Therefore, while deciding which Lokpal Bill to pass, they must find out what the people want and, if they have any doubt about that, they can have a referendum on the disputed issues.
The people of this country are fed up with the all-pervasive massive corruption in the country and are determined to have a strong and independent Lokpal. Any government or party that goes against the wishes of the people will do it at its own peril.
(This article by Team Anna was submitted to The Hindu by Prashant Bhushan, one of the members of Team Anna on the Joint Drafting Committee of the Jan Lokpal Bill.)