combating corruption 1 (epw april 2011)

7/27/2019 Combating Corruption 1 (EPW April 2011)

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S

FIGHTING BRIBERY

Opportunity at Hand

to Tackle Corruption

Srir am Panchu

politicians. The office of Lokpal (a three-

member body) can only be held by former

judges of the Supreme Court or high

court. Exceptions to the jurisdiction of

the Lokpal include national defence (this

is difficult to understand given huge pur-

chases on the defence f ront). A major

cut- off of information on corruption is

that

The draft LokpalBill ofthe

government will make for apoor

mechanism to punish corruption.

On the other hand, the textput

out by the Anna Hazare team

meets in substantial measure the

requirements necessary forabody that can effectively tackle

corruption in highplaces.

However, while the government

bill is on the spot in seeking to

cover only corruption at the top,

the Hazare text loses focus by

attempting to deal with too many

things bribery,

maladministration andmisconduct. Where the NGObill

gets it right is in outlining the

processes, powers and jurisdiction

of the Lokpal. It should nowbe

possible to worktowards

establishing a constitutionally

valid, efficient, workable and

sustainable legal mechanism to

combat corruption.

Sriram Panchu (sri rampanchu5@gmai l .com) is

cams have downloaded on to

the Indian scene with increasing

regularity; each new foray into

public funds is termed the mother of all

scams and going by this phrase we have

a plethora of motherhood of criminal

public activity.

Anna Hazare has moved it from the

back-burnerof things we have to live with,

an inescapable global phenomenon, to

actually getting to grips with the state of

our moribund anti-corruption law and

fashioning a remedy. His campaign has

invoked the power of public conscious-

ness, drawn support from large numbers

and got his team an equal place at the

drafting table. The focus should now be

on securing a constitutionally valid, effi-

cient, workable and sustainable legal

mechanism to combat corruption.

Defects in UPA Draft

Parliaments attempts to create a Lokpal

first began in 1968; that bill lapsed with

the dissolution of the Lok Sabha. The

same scenario has been repeated seven

times thereafter.Not much cause for sur-

prise here; public officials cannot be ex-

pected to be enthusiastic about promoting

a legislation to police them. In 2010,

the United Progressive Alliance

government brought forth the Lokpal

Bill to establish an institution to enquire

into allegations of corruption by public

functionaries. The Bill is hardly

remarkable for what itproposes to do, but

extremely noteworthy for what it does

not. First, it covers only ministers of the

union government and Members of

Parliament; it leaves out government

officers and judges entirely. The Lokpal

is to be appointed by a com- mittee

consisting of the vice-president, prime

minister, the Speaker of the Lok Sabha,

leader of the Opposition and ministers

in charge of home and law, in other

public servants are not allowed to make

complaints to the Lokpal; considering

that they are closest to the scent, their

exclusion does not smack of bona fides.

Another limitation is that the Lokpal can-

not take up a case suo motu.

Stringent Requirements

What kills the Lokpal Bill is that without

the recommendation of the Speaker ofthe

Lok Sabha the Lokpal cannot enquire into

the allegations of corruption against the

prime minister, and ministers and MPs who

sit in the Lok Sabha; similarly, without

the recommendation of the chairman of

the Rajya Sabha, the Lokpal cannot

enquire into allegations of corruption

against ministers and MPs who are part

of the Rajya Sabha. Neither of them

will find it easy to resist thetremendous pressure which will be

brought to prevent action. It is thus too

much to expect that the refusal to rec-

ommend will be the rare case. But most

crippling is Section 17 of the Bill. After

finding the offender guilty of corruption

all that the Lokpal can do is to inform the

respective Speaker or Chairman of the

House ofParliament, who will then lay the

report before the House. The competent

authoritybeing the prime minister in the

case of ministers and the respective House

of Parliament in the case of MPs will

decide on the action to be taken and

communi- cate it to the Lokpal. This is

said so in Sec- tion 17 (3) and with this

one sentence, hopes of enforcement,

punishment and deterrent fade away

instantly. Given that tainted money is

required for fighting elec- tions and that

Parliament splits on political lines,

people will have little hope in its capacity

to pursue penal action for corruption.Nor is it possible to repose much con-

fidence in the office of the prime minister

when even the current incumbent, univer-

sally reputed to be personally honest andSeniorAdvocate.
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words consisting almost exclusively of well meaning, can turn a blind eye to

10 April 23 , 2011 volxlv I n o 17 EPW Economic & PoliticalWeekly


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F IG HT I N G BRIBERY

public fraud of a 13-digit magnitude, all

in the name of coalition dharma. If this

Bill were to lapse because of the

dissolution of the Lok Sabha, it will be a

worthy legisla- tive achievement. There is

indeed a provision in the Bill for

detention, trial and punishment. But that

is directed against any person offering aninsult or interruption to the Lokpal.

Similarly a person held to be making a

false complaint may receive a

punishment of three years after summary

trial. A bill which seeks to curb

corruptionby public functionaries ends up

penalising complainants while leaving the

corrupt to the tender mercies of their

peers in Parlia- ment and the prime

minister.

AlternativeLegislation

The alternative legislation proposed by

the Anna Hazare-led civil society groups

seeks to remedy these deficiences.1 It cov-

ers all public servants ministers, bureau-

crats and judges. The members of the

Lok- pal need not be only from the

judiciary, they can be drawn from other

occupational quarters. Complaints can be

received from any source, including suo

motu by the authority. No prior sanction

is required for commencing action. TheLokpal is to have its investigative

machinery. It can set in motion the

prosecution.

However this is a central point in issue

the Hazare Bill goes much further than

creating a body to fight corruption. The

sweep and coverage of the jurisdiction of

its Lokpal encompasses complaints of cor-

ruption punishable under the Prevention

of Corruption Act, misconduct by a gov-

ernment servant, redressal of grievances

and to afford protection to whistleblow-ers. The concentration of all these func-

tions and powers in one authority has

caused serious concerns in several quar-

ters, including civil society groups and

perceptive individuals. The wide sweep

also makes for differentiated focus; re-

dressing maladministration countrywide

and checking formisconduct in a huge bu-

reaucracy is far different from handling

top-level corruption.

The area of public grievance arising

out ofmaladministrationunreasonable,

unjust executive action, wilful negligence

or undue delay in taking action, or defi-

cient administrativepractices and proce-

dures is colossal. A Lokpal consisting of

a handful of members cannot hope to

achieve much in this regard, even with the

officers of integrity that it hopes to get.

Superimposing the Lokpal on the entire

government administration will give it

power without responsibility, and a bu-

reaucracy all of its own.

Right Processes, Wrong Focus

The official Bill had the right focus cor-

ruption by public functionaries but com-

pletely deficient processes, powers and

jurisdiction. The Hazare Bill gets the lat-

ter part right, but has lost the focus. It

should have restricted itself to fighting

corruption in high places. This is not to

say that corruption at other levels is ac-

ceptable. It is not acceptable, and we have

a variety of legal reliefs departmental

enquiries, vigilance wings and recourse to

the high courts in its writ jurisdiction. The

point simply is that at present we do not

have any mechanism worth the name to

control corruption at the higher levels of

the executive, legislature and judiciary;

and if none is devised, we can bid goodbye

to all our hopes ofdevelopment and good

governance. That is why the focus in the

Hazare effort should be on corruption at

elevated levels. If this leadership is

cleansed (be it politicians, bureaucrats or

judges) the lower rungs will automatically

show more honesty. Cleanliness obeys the

law of gravity, it percolates downwards.

Leadership has its tone and tenor honest

leaders will choose men like them for the

crucial positions that matter, and will

relegate the others to lesser posts ormake

them dysfunctional. (Today the dishonest

leader does exactly the same thing.)

Further, a good portion of the bribes de-

manded at the lower levels the registrar

of documents, the police sub-inspector,the petty revenue official is funnelled to

the top. Another reason why the focus

should be on top-level corruption is

because that is where the decisions of

administration have an impact on more

lives, involving more money and affect-

ing more institutions.

While it is no truism that the more

honest officer is also the more effective

one, yet better governance is to be had

from the trustworthy plodder than the

clever rascal. Creaming off the corruptlayer will im-

prove personnel, practices and policies.

We must therefore concentrate on the

MP, the minister, the secretary and the

judge. A remarkable feature of the legal

system is that cases between individuals

involving property, contracts and the

like have been on the decline; the vast

majority ofcases clogging the Indian courts

involve relief sought to quash an illegalgovern- ment order or to direct the

government toperform its administrative

duty. Many of these cases do not involve

a point of law; they are simply instances

of wrong administrative action, and the

most common cause of such action or

inaction is that the demand for a bribe

was refused, or a bribe was paid by a

rival. A direct consequence of more

honesty in the administration will be a

more responsive and better functioning

government, in turn lowering the need for

redressal from the courts.

Independent Authority

The primary need therefore is for an in-

dependent authority and a proper scheme

to effectively proceed against corrupt

holders of high office. The requirements

of this are obvious:

(a) A proper forum for selection: The

methods now under discussion between

the Hazare team and the government pan-el are likely to yield an appropriate search

and selection body, with transparency

in functioning.

(b) Independence of the body: The Lokpal

will not be subject to removal by govern-

ment or legislature, but only by the presi-

dent based on the recommendation ofthe

Supreme Court after a full hearing.

(c) Wide net of offenders ministers,

bureaucrats, judges, legislators and all

others on the pay of the state in its expand-

ed definition including agencies and cor-porations. The focus should however be

on the higher bastions. The Lokpal can

and must train its sights on the

leadershsip of the country the prime

minister, chief ministers, cabinet and

other ministers at the centre and the

states, civil servants above the level of the

joint secretary, heads of statutory bodies

and commissions, senior officers of

government corporations, agencies and

institutions including educational and

medical, and judges of the SupremeCourt and high courts.

(d) Enabling receipt of complaints and

suo

motu action. This is provided for.


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F IGHT INGB RIBERY

(e) Powers of investigation, and an inves-

tigative body answerable only to the

authority. While the Lokpal should have

an investigating team under its control,

answerable to none other and needing

no sanction to commence the task, it is

neither necessary nor feasible for it to

take over the Central Bureau ofInvestiga-tion and the Central Vigilance Commis-

sioner. Those bodies should continue to

operate in areas other than marked out

for the Lokpal.

(f) Powers of prosecution and a

prosecution wing selected by and

answerable only to the authority. This is

not yet provided for. It is essential if one

is to move independ- ently after

investigation. The best of cases can fail

with an inefficient, indifferent orcorrupt

prosecutor. Witness the keenness of the

Supreme Court in ensuring the choice

of the prosecutor in the 2G scam

criminal case.

(g) Suspension of the accused on launch-

ing ofprosecution: Where a prima facie

case is made out and a charge-sheet is

filed, the accused should step down from

office till the conclusion of the trial. This

provision needs to be incorporated. The

reason is obvious.

(h) Time limit for completion of trial: It

should be provided that the trial should be

( j) Removal from office on

conviction should of course be

acccompanied by a permanent ban on

holding office under the State. Tracing

and recovering resourc- es obtained by

corrupt means and assets acquired

therefrom in the hands of the offender

and benamis is essential. The Hazaredraft takes steps in this direction.

Attachment of assets at an initial stage

after investigation is desirable; they can

be frozen till completion of trial. All

persons suspected of being benamidars,

relatives or otherwise, will have to

account for assets in their possession and

establish an independent legitimate

source forsuch acquisition.

(k) Deterrent punishment: This ought to

mean what it says that the punishment is

so heavy that others to come hereafter

pause a hundred-fold before attempting

such offences. Those who deprive the

State and its citizens of vast amounts

of money which could have provided

food, shelter and basic human rights to

thousands and millions of people must re-

ceive the maximum punishment that the

law can give. Ifimprisonment for a term

from three years up to life, based on the

extent of the crime, is mandated one can

realistically expect marked improvement

in morality rates. Those who want to

hold offices of public trust should know

that breach of that trust will bring corres-

ponding retribution.

(l) Protection to whisle-blowers and those

bringing forth complaints is necessary to

enable information regarding corruptionto come out in the open for scrutiny and

action. This can come well within the pur-

view of the Lokpal.

Making the Impossible Possible

The Bill put forth by the Anna Hazare

team meets, in substantial measure,

the requirements for an effective body

tackling corruption at the top level. The

Hazare team is close to achieving what

many thought was impossible a viable

anti-corruption legislation. If they can

succeed in this endeavour, they would

have rendered this country a service be-

yond measure. If they limit the present

efforts to this object, real and tangible

success is at hand.

held on a day to day basis, and a time limit

of three to six months forcompletion and

judgment. If this is the time span, the pre-

vious provision of suspension does not

cause excessive hardship.

(i) Trial to be held at a high level court,

obviating recourse to multiple appeals

and challenges to interim orders. This is

crucial. The current proposal makes it

possible to appoint more special judges

under the Prevention of Corruption Act.But when it comes to cases against lead-

ers, we must provide for trial by a high-

level judge a judge of the Supreme

Court, or a chief justice or senior judge

of the high court. That the verdict is in the

hands of the senior judiciary should be

source ofreassurance to those who worry

that the Lokpal has too much power. It

should also reassure the person wrongly

charged; otheraccused will of course be

chagrined that they have lost the dozen

years of appellate ladders beforeconfirmation of sentence (the practical

reality of the euphemism the law will

take its own course).

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combating corruption 1 (epw april 2011)

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