Sunday, May 8, 2011
Monday, May 2, 2011
Here is an explanation of Jan Lokpal – its meaning and rationale – and dispelling some of the misconceptions about the Bill drafted by India Against Corruption.‘Lokpal’ is a compound word (Lok + Pal) in Hindi which approximately translates into English as ‘people’s patron’.
The word ‘Lokpal’ shares ‘Lok’ (meaning ‘people’) with ‘Lok-tantra,’ another Hindi word, which means ‘democracy.’
‘Lokpal’ thus conveys the meaning of a person or institution that protects the interests of the citizens, including those who are the most disadvantaged, and is fully accountable to them.
‘Lokpal’ has been aptly chosen as the name for a commission that will be set up to work on behalf of the people of India to protect their interests from abuse of public office at the level of the central government.
To be established through the enactment of a law by the Parliament, the Lokpal commission will help to curb, reduce and prevent ‘corruption,’ as defined in law, in all activities of the central government with a few exceptions.
It will help to bring to justice public servants, including ministers and senior bureaucrats, who engage in ‘corruption,’ as defined in law, and protect citizens who show the courage to bring to the notice of the authorities any instance of abuse of public office.
The Lokpal commission will also deal with certain kinds of grievances reported by the citizens in respect of any service or office of the central government and provide them redress.
Thus, Lokpal will be a democratic institution that will help to make public service fair, open and accountable to the citizens.
The Lokpal commission is not meant to be a panacea for all forms of ‘corruption,’ in its broadly defined sense of moral decay or deficit, which we experience in various institutions, but one of the several reforms that we need to carry out in order for the State to meet the citizens’ expectations.
Growing corruption, failing systems
In recent years, there has been a groundswell of public opinion in favour of the view that corruption at all levels of the government – central, state and local – has reached unsustainable levels.
This view is not only borne out by the large scale and frequency of scams perpetrated by the elected and unelected public servants (and reported by the media), but also by the day-to-day experience of the ordinary people, including the poorest who need public services more than anyone else.
Rise in corruption is thus reflected not only in the amount of public funds siphoned off, usually with impunity, but also in poor or absent public services, worsening standard of living of the ordinary citizens, growing poverty and disparities in income and wealth, rising crime graph, and several other social and economic parameters.
Corruption also erodes the rule of law, democratic accountability, and the legitimacy of the State in the eyes of the citizens.
How have our systems of curbing corruption been responding to this perceived upsurge in corruption and its gargantuan social and economic costs?
‘Very poorly,’ will have to be the answer.
For instance, the rate of conviction achieved by the Central Bureau of Investigation (CBI), which investigates cases of corruption at higher levels of the central government, was 62 per cent in the year 2009, a drop of about five percent from the previous year.
What that means is that 38 of the 100 public servants booked for corruption by the CBI were acquitted in 2009. The CBI fared worse in cases where the officials had not been arrested red-handed.
There is hardly anything impressive even about the 62 per cent conviction rate if you consider that the CBI is almost never able to book, let alone prosecute, ministers and the senior-most officials especially protected by those ministers.
So, the 62 officials convicted out of the 100 booked in 2009 were likely to have been relatively low-level officials who were mere tools in the hands of their masters, the real culprits.
In other words, hardly anyone believes that the CBI is usually able to get its hands on the real culprits when they happen to be ministers and their top bureaucratic accomplices.
That failure has given the corrupt and the corruptible a free run of the ministerial and top bureaucratic offices, while keeping the public “comforted” with raids, prosecutions and convictions involving junior officials.
That failure to nab the real culprits also explains why eye-popping amounts of public money are siphoned off, but very little is recovered, giving the corrupt an incentive for more malfeasance, not to mention the reinforcement of the essentially top-down nature of corruption in India.
Current anti-corruption systems
An examination of our current systems of curbing and preventing corruption reveal why they have failed us.
The anti-corruption system at the central level consists of four agencies: the Central Vigilance Commission (CVC), the departmental vigilance, the CBI, and the police.
While the CVC and the departmental vigilance deal with the “vigilance” aspects of an alleged case of corruption which usually translates into disciplinary proceedings against a public servant, the CBI and the police deal with criminal aspects of corruption cases.
Another categorization of these four agencies can be done on the basis of the hierarchical level at which corruption is reported. While the CVC and CBI deal with corruption at higher levels of the government, departmental vigilance and the police usually check corruption at lower levels.
Central Vigilance Commission
The CVC, which is described as the “apex body” for “vigilance” over all departments of the central government, only has advisory powers. The government departments seek the advice of the CVC on various cases of corruption, but are free to accept or reject such an advice.
The advisory nature of the CVC’s role does not change in cases that the commission directly enquires into.
Experience shows that the advice of the CVC to initiate prosecution is rarely accepted and the recommendation for a major penalty is usually turned into a minor penalty.
Except for examining civil works of the government agencies, the CVC has no investigative power of its own and no power to register a criminal case; it deals only with vigilance or disciplinary matters.
The CVC has no power over politicians or the elected public servants. If there is an involvement of a politician in a case, the CVC can at best bring it to the notice of the government.
This false distinction between “political corruption” and “bureaucratic corruption” has had the effect of killing a case even before investigation can begin, strengthening the hands of the corrupt.
Though the Central Vigilance Commission Act, 2003, gives the CVC supervisory powers over the CBI, the former can neither direct the latter to proceed in a case in a particular manner or to ask for a case file.
The CVC does not have any direct power over vigilance wings of various departments of the central government.
The complaints of corruption forwarded by the CVC to a departmental vigilance wing are often ignored by the latter. The CVC is then left with sending reminders to the vigilance wings, which too are not heeded.
The CVC has no administrative control over officials in the vigilance wings of various departments to which it forwards complaints.
The government merely consults the CVC in making appointments of the chief vigilance officers (CVOs) of various departments. The departments themselves appoint or transfer the officials below CVOs; only in rare cases, they allow themselves to be influenced by the CVC in matters of such appointments or transfers.
The ruling party or coalition is in full control of the selection of central vigilance commissioners because it is represented by two (the prime minister and the home minister) of the three members that make up the selection committee.
All names put before the committee (whose third member is the leader of the opposition) are strictly decided by the government. The citizens have no information to make sense of the process or rationale of the appointments, let alone any form of participation in decision making.
To make matters worse, the CVC does not have adequate resources to deal with the large number of complaints that it receives relating to over 1500 central government departments and ministries, some of them as big as Central Excise, Railways, and Income Tax.
Its staff of about 200 is grossly inadequate to deal with even the few cases that it enquires into on its own without being dependent on departmental vigilance.
Therefore, despite being relatively independent in its functioning, the CVC has neither the powers nor the resources to look into and take action on complaints in a manner that will be widely acknowledged as an effective deterrence against corruption.
Central Bureau of Investigation
The CBI, on the other hand, has the power to investigate any case related to a central government department or any case referred to it by a state government or a court, but no independence. It is directly under the administrative control of the central government, namely the department of personnel and training (DoPT) of the Ministry of Personnel, Public Grievances and Pensions.
There is very little public trust in the ability of the CBI to conduct a fair investigation into complaints against a minister or politician who is part of the ruling party/coalition or a bureaucrat who enjoys the protection of such a minister or politician. Such investigations are widely expected to be scuttled in their initial stages or midway unless they are pursued under the supervision of the Supreme Court a la the 2G scam case.
Since it is directly under the control of the central government, the CBI is widely perceived to have been used by the ruling parties or coalitions to settle a score with their political foes.
The CBI is also overburdened and does not accept cases even where the amount of misappropriated money is estimated to be as high as Rs one crore.
The less said about departmental vigilance the better.
Each department has a vigilance wing, which is usually staffed by officials from the same department. In a few cases, an outsider is appointed as the chief vigilance officer (CVO), but officials under him belong to the same department.
Since the staff of a vigilance wing are drawn from the department that it supervises and can be posted anytime to any position in the same department, it is well-nigh impossible for them to be independent, even if they muster up the courage, in looking into complaints against their colleagues.
Would a vigilance officer enquire into a complaint against a senior officer, if he/she knew that he/she might get posted under the same senior officer in future?
In some departments, especially within the ministries, some officials double up as vigilance officials. That may lead to the ridiculous situation of officers in receipt of complaints against themselves.
There have been instances of the officials with long records of corrupt behavior posted in departmental vigilance wings. Such officials use their vigilance postings to systematically undermine all cases against themselves. They also turn their vigilance wing into a hub of corruption, where cases are closed for consideration.
Departmental vigilance does not investigate into criminal aspects of any case. It does not have the powers to register an FIR. Needless to say, the departmental vigilance officials are totally helpless in cases where politicians are the main culprits.
The police are another effete anti-corruption agency. Most people do not even know that they can take their complaint against corruption to the police. Those who do and have the courage to go to the police face problems in getting their FIR registered.
In most cases, the corrupt are in a position to use their contacts to scare the police into submission. For example, if a local MP or MLA is the reason behind a complaint, the police are not likely to do anything.
The four agencies described above have failed severally and jointly to curb corruption in public service in an effective manner. Their actions have failed to punish the corrupt and be the deterrent against further malfeasance.
It’s obvious that multiplicity of anti-corruption agencies serves no useful purpose. On the contrary, multiplicity of agencies leads to confusion and wastage of time, effort and resources, which only make it less likely that the corrupt will be brought to justice.
For example, the Commonwealth Games scam has been investigated by the CVC, the CBI, as well as the specially set up Shunglu Committee, even as the first two agencies are much in demand due to many other scams getting exposed left, right and centre.
In sum, neither ordinary citizens have a forum to register their complaint against an instance of corruption that affects their day-to-day lives, nor is there any effective remedy and deterrence against ‘high-level’ corruption of much bigger and more systemic proportions, such as in public procurement contracts and distribution of mining leases.
As for the protection of the courageous few who report corruption, there is none.
In the year 2010 alone, at least eight RTI activists were killed while they sought information on the shady deals of some public servants. In earlier years, Manjunath Shanmugam and Satyendra Dubey bravely blew the whistle on governmental corruption, only to lose their lives without receiving any protection from any governmental agency.
The Lokpal commission has been conceived and devised precisely to address this hopeless and helpless situation – i.e. remedying the inadequacies of the current system in a manner that is comprehensive enough to provide real hope and help to the oppressed citizens.
Lokpal will not be a ‘super-government’
Lokpal will merely recast the relevant functions of multiple anti-corruption agencies into a single agency without becoming a ‘super-cop’ or a ‘super-government’ or concentrating too many powers into itself as is feared by many people who may never have had the opportunity to be explained the Jan Lokpal Bill.
In other words the anti-corruption wing of the CBI, the CVC, and departmental vigilance will be merged into Lokpal, doing away with multiple anti-corruption agencies in favour of a single agency with all the necessary powers.
The Jan Lokpal Bill will not create an institution that can be described by any stretch of imagination as “cop-cum-prosecutor-cum-inquisitor-cum-judge” as some commentators have apprehended.
Nor will it create an institution that will impinge on the separation of legislative, executive and judicial powers of the State or the Constitutional arrangement of checks and balances.
Lokpal will only have the powers of investigation and prosecution of cases that will be made out of complaints against alleged ‘corruption,’ as strictly defined in existing statutes.
With regard to politicians, the Lokpal commission will look into complaints under the Prevention of Corruption Act, 1988.
As for the complaints against the judges of the Supreme Court and high courts, only a full bench (with at least seven members) of the Lokpal commission will be able to authorise a full-fledged investigation after satisfying itself that prima facie evidence of an offence exists under the Prevention of Corruption Act, 1988.
Whether or not to initiate prosecution against a judge will also be decided by a full bench of the commission with majority of members with legal background.
In case of bureaucrats, the commission will look into complaints registered under Prevention of Corruption Act as well as the ones reporting misconduct. In addition, the departmental vigilance wings, which will incorporated into the Lokpal commission, will redress the grievances reported by the citizens.
All cases of corruption will be tried in the special courts set up under the Prevention of Corruption Act, 1988. All orders of the Lokpal, such as in respect of confiscation of property, can be appealed against to the appropriate high court.
Lokpal will be accountable to the citizens
In addition to being subject to the Right to Information Act, 2005, Lokpal will be required by specific provisions of the Jan Lokpal Bill to disclose all information about its functioning to the citizens, ensuring that the commission will remain open to public scrutiny.
Moreover, the Jan Lokpal Bill provides for the scenario of one or more members of the Lokpal commission themselves turning corrupt; any citizen will be able to bring a complaint of corruption or misconduct against one or more members of Lokpal to the Supreme Court and seek their removal.
It’s far fetched to imagine that making Lokpal an effective deterrent against corruption will create something resembling a police state, another apprehension of some commentators.
On the contrary, an effective Lokpal will only help to rescue the country from the prevailing situation of widespread abuse of public office, thus upholding the rule of law and the right of the ordinary citizens to hold their government to account.
It needs to be borne in mind that any power that Lokpal exercises duly or unduly will be under the scrutiny of the citizens as well as the Parliament which will pass the bill to create the institution and will always be in a position to make amendments to the same legislation.
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