Saturday, Oct 01, 2022

Removing Misconceptions

Addressing some of the issues and concerns raised by a number of commentators on the provisions in the draft of Jan Lokpal Bill

A number of commentators have raised issues about the provisions in the draft of Jan Lokpal Bill, whether it will be effective instrument for checking corruption and about the manner in which pressure was brought to bear on the government through Shri Anna Hazare’s fast. It is therefore, important to understand the provisions of the bill and how it seeks to set up an effective institution to deal with corruption.

Corruption in India has grown to alarming proportions; because of policies which have created enormous incentives for its proliferation, coupled with the lack of an effective institution which can investigate and prosecute the corrupt. Under the garb of liberalization and privatisation, we have adopted policies by which natural resources and public assets (such as mineral resources, oil & gas, land, spectrum, etc) have been allowed to be privatised without any transparency or public auction. Hundreds of MoUs have been signed overnight, by governments with private corporations, leasing out large tracts of land rich in mineral resources, forests and water, which allow those corporations to take away and sell these resources by paying the government a royalty which is usually less than 1% of the value of resources. The Karnataka Lokayukta Justice Santosh Hegde, has pointed out in a report on mining in Karnataka, that the profit margins in such ventures, is often more than 90%; thus leaving a huge scope for bribe giving and creating huge incentives for corruption. The same thing happened when Mr A. Raja gave away spectrum without a public auction to companies at less than 10% of its market price. Private monopolies in water/electricity distribution, airports, etc; have been allowed to be created where huge and unconscionable profits can be made by corrupting the regulator and allowing the private monopoly to charge predatory prices. Tens of thousands of hectares of land have been given away to corporations for commercialisation in the guise of airport development, construction of highways, SEZs etc. at prices which are less than 10% of the value of the those tracts of land.

Apart from creating huge incentives for corruption, such policies have resulted in involuntary displacement of lakhs of the poorest people, rendering them on brink of starvation and forcing many of them to join the Maoists. They have also stripped the country of its natural resources (a good deal of which are exported), destroyed the environment and most ominously, resulted in creating monster corporations, who are so powerful and influential that they have come to influence and virtually control all institutions of power as we see from the Radia tapes. In fact it is the corporations which have become the fountainhead of corruption, with ministers and public servants having become their agents.

While adopting policies which create huge incentives for corruption, we have not set up an effective institution to check corruption, investigate and prosecute the corrupt and bring them to justice. The CBI continues to be under the administrative control of the government, which is seen as fountainhead of corruption. Thus no action is usually taken by the CBI to effectively investigate high level corruption unless once in a while, the court forces its hand. Often, we see the CBI behave in a corrupt manner with no other institution, to investigate its own corruption. The Central Vigilance Commission (CVC) which is supposed to supervise the CBI has failed to act, since its own appointment process is riddled with conflict of interest. The Prime Minister, Home Minister and Leader of Opposition (who has been a minister and hopes to become Prime Minister one day) want to avoid their own accountability and are thus interested in weak and pliable persons to man an institution which is expected to supervise the CBI. Moreover the CVC and CBI have to seek government sanctions for investigation and prosecutions, which is usually not given in high level corruption. The CVC depends on vigilance officers in various government departments who are often middle level officers from same department and cannot be expected to exercise vigilance over their bosses who write their confidential reports. The judiciary, which must try and convict the offenders, has also become dysfunctional and also corrupt due to lack of accountability of the higher judiciary.

The draft Jan Lokpal bill seeks to create an institution which will be largely independent of those that it seeks to police, and which will have effective powers of investigation and prosecuting all public servants (including ministers, MPs, the bureaucracy, judges etc.) and those others found guilty of corrupting them. Since corruption also involves misconduct and gives rise to grievances, the draft bill also proposes that the Lokpal will supervise the machinery for disciplinary proceedings against government servants (the Vigilance Department) as well as the machinery for redressal of grievances. Thus misconduct by government servants and grievances would also come under an independent authority rather than under the government where it has become ineffective due to conflicts of interest. In addition it has also been proposed that if the Lokpal finds that a contract is being given for corrupt considerations, it can order the stoppage of the contract. It cannot otherwise interfere with government decisions or policy.

It has been said that this will create a supercop with enormous powers and no accountability. There is a misconception that the Lokpal would have judicial powers as well. There is no such thing in the bill. The need of the hour is to have an effective policing body which can investigate and prosecute the high and mighty without interdiction from the very people who need to be prosecuted. Moreover, the bill seeks to make the Lokpal accountable in many ways. Firstly, it is mandated to function transparently so that everything related to its functioning is known to the people (without compromising the investigation itself). Other exemptions from disclosure provided in the RTI Act could also be included. Secondly, the orders of the Lokpal would be subject to Judicial review in the High Courts and the Supreme Court. Lastly, the members of the Lokpal would be removable for misconduct by a 5 member bench of the Supreme Court.

There has also been criticism of the Selection Committee and selection process of the Lokpal. Given the erosion in the integrity of most of our state institutions, it was thought that the best bet was to have a broad-based selection committee and build in transparency and some public participation in the selection process, while trying to keep out those persons who are most likely to be within the ambit of the investigations of the Lokpal. That is why ministers were kept out in the draft bill, though one criticism has been that this shows a contempt for democracy. We have seen how the “democratically elected” PM, HM and leaders of opposition have normally selected weak and pliable CVCs. So the draft bill proposes a selection committee of Lok Sabha Speaker, Chairman of the Rajya Sabha, CAG, CEC, the two senior most judges of the Supreme Court, two senior most Chief Justices of the High Court, the Chairman of the NHRC and the outgoing members of the Lokpal. However, this selection committee would certainly be discussed and perhaps improved during further public consultations and discussions within the drafting committee, which will now take place.

It has also been said that putting grievance redressal on the plate of the Lokpal would make its work unmanageable. Though the Lokpal would only reorganize and supervise the grievance redressal machinery (rather than dealing with each grievance itself), this is also an issue, which would be discussed openly by the Committee. By the next week a website for formally taking in all the opinions and suggestions on the Jan Lokpal bill will be set up and announced. We would welcome people to read, understand and send their comments on it, which will be taken due note of.

One must not however be under any illusion that the Lokpal law itself would solve the problem of corruption. Unless we also tackle and change the policies which are creating enormous incentives for corruption and creating monster corporations, which become too powerful for any institution to control, our fight against corruption will be incomplete. The judiciary too is in need of comprehensive reforms. But, an independent, credible and empowered Lokpal is certainly a necessary, though not a sufficient, condition for effectively controlling corruption. Let us work to at least put that in place.

One of the original drafters of the Jan Lokpal Bill, Supreme Court lawyer Prashant Bhushan is also one of the five nominees of Shri Anna Hazare on the government notified Joint Drafting Committee to prepare a draft of the Lok Pal Bill.