Let Us All Work For the Greatness Of India

The Explicit and the Implicit in the Lokpal Bill

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The humiliating and discouraging historical record of the Lokpal Bill in the Indian Parliament, as well as the ineffective functioning of public institutions (such as the CVC) meant to tackle governmental corruption, in the post-Independence period, is well-known. Why does it then come as a rude surprise that the contours of such a dismal tradition have remained unbroken in the recent Lokpal and Lokayuktas Bill 2011? It comes as a rude shock because its callous infliction on the nation mocks the values and demands of the first-ever sustained peoples’ anti-corruption campaign. Given the clear lack of political will by our leaders to tackle the issue of corruption, the latest anti-corruption legislation, not surprisingly, seeks to co-opt and accommodate, rather than address the problem of corruption. The attempts being consistently made by our Parliamentarians and certain sections of ‘intellectuals’ to justify this latest legislation, should act as an ultimatum to warn us that the awareness and results generated by the people’s anti-corruption campaign are about to fall into a ditch in one effortless stroke, by trying to co-opt and moderate the real issue.

The real issue at hand, in the ongoing debate about the merits of a Lokpal, is that of corruption in the public sphere, pertaining to the functioning of our governmental and public institutions. Thus, while we agree that what we understand as ‘corruption’ is a deeper and many-faceted problem, much beyond the imposed organisation of laws and institutions created to contain it, the problem of governmental corruption needs to be clearly delineated, in the context of a discussion on the Lokpal bill. The manipulation of state institutions by our MPs, bureaucrats and public officials is something that can be checked to some extent, provided that effective Lokpal and Lokayuktas are instituted. But the establishment of an effective anti-corruption watchdog, independent of and keeping a check on the executive and the legislature, is practically contrary to the political interests of our politicians. This extends to the government and the opposition alike, and can be seen clearly in the cunning politics played in the Parliament.

The government, effectively taking cover behind the construction of a Lokpal bill, left it to the opposition and to its coalition partners to ensure its non-passage in both the Houses of the Parliament. Likewise, the opposition, playing the card of a ‘weak’ Lokpal bill, tried to fulfil the dual motive of appearing to be in sympathy with the Anna campaign, and at the same time, ensure the non-passage of the bill. Another fragmented strand of some regional opposition parties played on the card of the unchallengeable constitutional supremacy of the Parliament, which, as the argument goes, was sought to be compromised by tabling the legislation in ‘haste’ by succumbing to the pressure of ‘Team Anna’ and ‘people on the street’. The current environment is so charged with the momentum of the anti-corruption campaign that no politician appears (or would want to appear) overtly hostile to the cause of the anti-corruption movement. Yet, once the politics behind the diplomatic arguments of our politicians is unravelled, it becomes clear that neither the government nor the opposition are sincere about instituting an effective anti-corruption watchdog.

It, therefore, doesn’t come as a surprise that there is a sea of difference between the Lokpal and Lokayuktas Bill 2011, put forward by the government, and Team Anna’s Jan Lokpal Bill. There are several controversial issues on the basis of which government’s Lokpal bill (the one originally introduced as well as the one passed recently in the Lok Sabha, with all the amendments and the politics behind it) diverges from that of Team Anna. Some of the key points of criticism are –

• Selection committee of Lokpal – Contrary to Team Anna’s expectations of a wide range of members of Selection Committee of Lokpal, the current Lokpal and Lokayuktas Bill 2011 consists of P.M, Leader of opposition in Lok Sabha, Speaker of Lok Sabha and CJI or a judge nominated by him. Team Anna had, in addition to these, also demanded the inclusion of Chief Election Commissioner, CAG and ex-chairpersons of Lokpal.

The inclusion of Team Anna’s demands would have provided more effective institutional transparency in the selection of Lokpal members, with the inclusion of independent institutions like the CEC and the CAG, than the current bill’s provisions which leave ample space for government’s political machinations.

• Search committee – A Search committee makes recommendations to the Selection committee in the selection of the Lokpal members. The current bill mandates the creation of such a Search committee whose 50% members shall belong to the reserved categories of SCs, STs, OBCs, minorities and women. Team Anna’s draft, on the other hand, demanded that in addition to the retired Chief Justices, CECs and CAGs appointed by members of Selection committee, the Search committee shall also consist of 50% members selected from the civil society.

The government’s politics of opportunism is clearly discernible here. Since, the Search committee is only recommendatory in nature, the politics of appeasement of marginalized social groups through the tool of reservation and by making the creation of a Search committee mandatory, has been fully utilized here.

• Composition of Lokpal – This is another contentious issue. Team Anna’s demands on the qualifications of Lokpal members were stringent and meant to ensure integrity, at least in principle, by advocating that the members have a legal background and a clean record. On the other hand, the current bill has forcibly imposed that at least 50% members be from SCs, STs, OBCs, minorities or women, which means that out of nine Lokpal members, five will belong to the reserved category

The offshoot of providing reservation in Lokpal has been that the focus has shifted to a whole new debate on the reservation issue, rather than addressing the problem of corruption.

There are two issues here. First, there is the big question mark on incorporating the reservation policy at all in the Lokpal, and all the unwanted consequences that it would entail.

And second, the reservation issue has been played out by the government as a diversion to effectively hijack the issue of corruption by stirring popular emotions on the debate on reservation, and at the same time, wielding it as an effective electoral card to attract the vote-banks of target social groups. This controversy effectively ensured that the focus shifted from the corruption issue to the reservation issue, which is equally capable of arousing popular emotions. This undoubtedly served as a good political ploy to make the weak Lokpal bill fall prey to the reservation debate.

• Powers of the Lokpal and their operationalization –

This pertains to one of the most crucial and widely debated aspects of the current bill. According to the current bill, the jurisdiction of Lokpal includes: i) P.M, provided that at least 3/4th members of Lokpal (after the amendment, this figure was reduced to 2/3rd members)should agree to an inquiry against him, and he remains secure in the matters relating to international relations, internal and external security, public order and atomic energy and space, ii) Ministers, M.Ps and ex-M.Ps, iii) Agencies over which the central government exercises some influence, in form of control or financing or receiving public donations, and, receiving Rs. 10 lakh plus foreign contributions under the Foreign Contribution Regulation Act, and, iv) Religious institutions also included.

Clearly, the jurisdiction of the Lokpal is confined to well-defined categories. Team Anna’s Jan Lokpal draft, on the other hand, spelt out demands that, in one stroke, stated the inclusion of any ‘Public Servant’ as defined under section 2(c) of the Prevention of Corruption Act, 1988.

But the bone of contention here is not so much the categories over which the Lokpal can exercise jurisdiction, as the manner and extent of power it can exercise. The current Lokpal and Lokayuktas Bill 2011 has, it has been rightly argued from all quarters, virtually rendered the Lokpal ‘toothless’, ineffective and dangerous. There are several problems with it.

First, as per the current bill, the Lokpal can exercise its powers in accordance with a scheme of separation of powers, with a clear distinction between the stages of inquiry, investigation and prosecution. The Lokpal has been provided with separate Inquiry Wing and a Prosecution Wing, but has no control over the crucial investigation process.

This has ensured that its Prosecution Wing remains no more than a mere decorative and ornament. The real power to bring the guilty to book lies with the agencies which control the investigation process and can ultimately prove or disprove the corrupt credentials of public servants. It is then, in accordance with the investigation verdict, that the subsequent course of action is determined. Therefore, one of the key demands of Team Anna had been the creation of an independent Investigation Wing for the Lokpal, which would be created by the merger with the Lokpal of the anti-corruption part of the CBI, that is, Lokpal should exercise total effective control over the investigation and prosecution wings of the CBI relating to offences under the Prevention of Corruption Act 1988.

In the current Lokpal and Lokayuktas Bill 2011, however, the Lokpal can only exercise ‘supervision’ over CBI investigations relating to offences committed by public servants under the Prevention of Corruption Act 1988. Effectively, the CBI continues to act as agent of the central government, which exercises real administrative and political control over it. Thus, in the absence of the investigative component, even the inquiry and prosecution processes are rendered hollow and even false.

Second, the riders and limitations of the Lokpal with respect to initiating an inquiry against the P.M have ensured the immunity of the P.M against any such procedure. The terms ‘internal and external security’ and ‘public order’ which make the P.M immune, can be effectively manipulated to cover almost anything within their ambit. It is as good as not having the P.M at all within the Lokpal scanner. Similar is the case with action that can be taken against MPs and ministers outside the Parliament, which requires a Full Bench approval, with the consent of at least three-fourth majority of members. The MPs and ministers are also, therefore, comfortably secure.

The political card played by the government here is evident, and runs in a twofold direction – (a) inclusion of P.M in Lokpal, despite its farcical nature, would be good enough for popular face-saving, unless the masses really sought to delve into the details of the Lokpal provisions, which is unlikely, and, (b) at the same time, the government has sought to add this farce to its aura of projected saintliness and sacrifice, by loudly emphasizing the shocking sin of even considering to question the impeccable credentials of the P.M of a democratic republic.

Just like the famous argument about the ignorance and sin of challenging the sanctity of the Parliament and ‘democratic’ institutions, of civil society’s ‘blackmail’ and bid to annihilate democracy, the argument about the sanctity of the office of the P.M too has been often repeated by many groups of individuals, and has become the most potent cover behind which some of the most corrupt public figures are encouraged to take refuge. This argument is about the unchallengeable supremacy of institutions – incidentally, whose clear misuse we now witness – and can easily be contested; but it involves an altogether different conceptual debate, outside the scope of this paper. For now, it would be sufficient to acknowledge that the anti-corruption crusade (and the demands it entails), driven by the ‘people on the street’ (to use the disdainful term of one of our leading ministers) is infinitely more democratic in spirit than the planned, limited and carefully-orchestrated mechanism of electoral politics. If non-adherence to institutions which impose democracy was that offensive a sin, then we should also be criticizing the popular unrest erupting among Europeans and Americans.

We should, therefore, set clear limits to the argument about the saintliness of the Indian Parliament, and other institutions. It is an unjustifiable excuse for presenting such a weak anti-corruption bill.

Third, the effective control over the lower bureaucracy –Group C and Group D officers –has been placed outside the powers of the Lokpal. Here again it can only initiate a preliminary inquiry and transfer the issue to the CVC, which will proceed with further decision without reverting back to the Lokpal. Lokpal’s ambit only includes Group A and Group B officers, in whose case the CVC does revert back to the Lokpal.

In practical functioning, this again would turn out to be insufficient in addressing the issue of corruption. Maximum corruption occurs at the level of lower bureaucracy which has been exempted from Lokpal’s purview. Maximum number of transactions occur at the small-scale level, and that is why we see today so many mere inspectors and sub-inspectors rolling in wealth, through extortion, bribery, kidnappings and almost every illegal practice under the sun. This is also prevalent, though in a lesser and subtler degree, at the level of higher bureaucracy. No wonder the profession of civil services, due to the excessive powers it has acquired (much beyond the stipulated constitutional limit) is glorified as being so elite! And the current bill has done nothing to curb this audacity, and provide justice and relief to the common man, who has every-day dealings with the lower bureaucracy.

Moreover, the ugly entanglements of the politician-bureaucrat nexus serve the purpose of the politicians only too well. Since an effective law would threaten that nexus, giving a free rein to our babus would be only too convenient. And as far as placing them under the CVC scanner is concerned, let us not forget the decade-long futile role played by the CVC, which is itself nothing more than an ornamental and convenient club of retired technocrats.

Fourth, it is interesting to note one of the many amendments which cleared the passage of this bill in the Lok Sabha. As per Clause 24 of the original bill, the Lokpal shall send its investigation report to the competent authority concerned; it would then be tabled in the Lok Sabha, and the ‘action taken’ shall be communicated to the Lokpal within 90 days.

It is necessary to draw attention to the amendment sought to this clause, as the original clause gives some kind of partial authority to the Lokpal. But even this was intolerable to our MPs, who amended it to ensure that there would be no need to revert back to the Lokpal. If this is the authority of our ombudsman, then what is the difference between our ineffectual Parliamentary committees and a body which claims to fight corruption? Clearly, the government alone is not the culprit; even our ‘responsible’ opposition and political parties, who claim to nourish democratic processes, are complicit in the scheme to weaken the Lokpal.

Fifth, the corollary to this trend is easily confirmed in the whole question of the Lokayuktas. There are two issues here. First is the whole debate about how the original bill endangers the principles of federalism, and second is the amendment which was moved in Lok Sabha and the endless and revealing ruckus created under that pretext.

It is true that the Part III of the original bill may endanger the principles of federalism, by seeking to install powerful mandatory Lokayuktas in the states, more powerful than the Lokpal at the centre. But here we see the ‘constitutional’ principles of ‘federalism’ and the fight against corruption coming to clash. The recent arrest of former Karnataka C.M and the effective functioning of Lokayukta in U.P, clearly shows that a strong Lokayukta would be in the interest of people and anti-corruption movement, and antithetical to the interests of the state governments and local politicians. This mismatch between a strong Lokayukta and state governments is now being popularly hailed as a violation of federalism. And the argument, just like the earlier illusion about the threat to democratic institutions, is so infectious that we see even Team Anna’s knees buckling under the pressures of such conceptual fabrications.

But this paraphernalia of federalism is farcical. First, the installation of Lokayuktas doesn’t violate federalism, but only confirms the principles of a union; the requirement that states be brought around to respect the basic and fundamental values, from which laws are created and then differentially instituted, is the most minimum requirement of any federal union. And, this, in essence, would be the logic of the Lokayuktas, which has, not surprisingly, become prey to convincing political hooliganism and pulled us all into its mire. Second, given that, in principle, state governments are meant to ideally represent the will of the people, federalism is really meant to cater to the needs of the states’ people, to give a coherent and controlled direction and expression to diversity within a wider union. In practice, the thin line between the state governments and people is often deliberately blurred, and the federal principle becomes the unfortunate instrument of the former, as it now has. Therefore, contrary to what we are being told to believe, a strong Lokayukta is actually in the interest of the federal principle!

Moreover, as expected from the hue and cry around this issue, the Lok Sabha did secure an amendment to the effect that Lokayuktas won’t be mandatory for the states, and their institution shall be conditional upon the consent of the states. But even this was not enough, and now we are hearing rumours (in all probability, likely to become facts!) about the possible decision to scrap Part III of the bill altogether. Now that federalism is no longer in danger, then why this attitude? The insincerity of the political anti-corruption efforts, and the doublespeak of our political parties (some of which profess to be Anna sympathisers) is badly exposed here.

Finally, just like each of our previous points, this one too irresistibly concludes on a note which exposes the cunning of our MPs. The effectuation of the Constitution (116th amendment) Bill, would have accorded a constitutional status to the ombudsman and strengthened it further. But the vehemence with which our political parties have sought to defeat this, speaks for itself.

Two major and broad demands by Team Anna continue to persist and remain crucial to the outline of this bill; these include amending the government-controlled process of selection and removal of the ombudsman, and amending government control over CBI to ensure better investigative mechanism for the Lokpal.

These, therefore, were the kinds of political motivations masked within the technical intricacies of some of the most controversial provisions which helped shape the Lokpal and Lokayuktas Bill 2011, which was introduced and after much dilution, finally passed in the Lok Sabha.

However, this bill too seems to be following in the footsteps of its ten predecessors. It has been shelved till the budget session of the Parliament in March 2012, to supposedly give the government time to accommodate 187 amendments sought by the opposition in this bill. Dare we hope that, in any form whatsoever, it will ever be passed? From the high drama orchestrated in the Rajya Sabha recently, this possibility seems highly remote. Serious allegations made by some of the leading and supposedly reputed public figures about how the government deliberately thwarted the bill in RS, in a well-planned ‘script’, to save its own skin, leaves us in no doubt as to how much faith we can really repose on our political class, and our wonderful, unquestionable Parliament! The clear-cut motivations, pretensions and attempts by the opposition parties to water down a ‘weak bill’, also does nothing to moderate this farce played out by our entire political class. The inability of passing even such a weak bill is a disgrace for our politicians.

But this is only one issue. Another, quite different issue relates to the inadvisability of passing such a weak and dangerous bill at all. The explicit control which government exercises over the ombudsman borders on the authoritarian. Given the propensities of Indian politics, if such a bill, in its present form, were ever to be realised in practice, it might possibly lead to gross blackmail and abuse of power by the centre. An anti-corruption ombudsman, carved out of such a bill, may further intensify governmental corruption, thereby leading to disastrous consequences. Perhaps we should then collectively thank our fortunes that the present bill was shelved for the time being.

– Garima Sharma

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