This Battle Is Worth Winning At All Costs
Social activist Hazare has rightly raised a storm against corruption, which has become wide spread and shows no sign of abating. The government has agreed to his demand of having on board his representatives for the drafting of a strong Lok Pal Bill. In fact, both sides have legal luminaries as the members. As the experience of bills drafted by the government shows that they leave sufficient loopholes for the guilty to escape in the name of fair play, human rights, and equity, as if the victims do not have any rights.
A brief needs to be given to the members from civil society, based on their concerns and suggestions, about the methodology of fighting corruption and what should be their demands. Simply trusting panel members, nominated by Hazare, to come out with their own prescription of fighting corruption would not do.
Seeing corruption trials in courts is entirely a different matter from eradicating it. Even the passing of the Lokpal Bill would not solve the problem of eradicating corruption, unless the wherewithal for fighting the corruption, like the increase in the strength of the judiciary and the investigating agency, seizure of illegal assets, during the investigation itself, enhancement of the budget and manpower, is also included as a total part of the package. Otherwise, it would be just like the preamble to the Constitution or like the Right to Education, without teachers and without any blackboards or roof on the schools.
Indeed a stage has come, where the government is reluctant to wage any war against the corrupt or corruption, as can be seen from the Supreme Court—monitored 2G scam or Adarsh or CWG scam. Let not the institution of Lok Pal be another toothless tiger. When Delhi Lokayukta sent a report against a Delhi minister, instead of taking action on the report Delhi government is thinking of having a second look at law.
The possession of assets beyond known means of income is a criminal offence under the Prevention of Corruption Act. The law should be changed to put onus on the accused that whatever he possesses or owns is honestly acquired. There have been hardly any cases, except in Bihar or one or two other states, where illegally acquired assets have been seized.
A time for plain speaking…
LOKPAL IS NO SOLUTION
Mr LK Advani accused the UPA government of being immersed in corruption. Finance Minister Pranab Mukherjee retorted by asking why the NDA government did not introduce the Jan Lokpal Bill when it was in power. Mr. Mukherjee is very intelligent. Unfortunately he thinks others are stupid. He could have pointed out to Mr Advani the various cases of corruption that taint the BJP. Instead he invoked the Lokpal Bill as the litmus test for fighting corruption. There is a method in this madness. It calls for some plain speaking. It is time to point out that the entire hysteria whipped up over the appointment of a Lokpal as the means to end all corruption is horribly misconceived.
A legal luminary charged with the responsibility to draft the proposed Jan Lokpal Bill solemnly said: “We need a strong law to fight corruption.” This may mislead most people. The present endeavor is not related to passing new criminal laws by which corruption will be dealt. It is related primarily to creating a new and powerful office that will ensure that existing criminal law is implemented. The need for creating such an office arose from the fact that investigative agencies probing corruption of government ministers and officials were accountable to the same body of persons. This was so because before proceeding with any investigation or prosecution involving a government official the agency first had to obtain permission from the very government which was being probed. This robbed investigation of all credence. The investigative agencies cannot be liberated from the government’s stranglehold by making them totally autonomous. Investigators have to be made accountable to some higher body. That is the rationale for creating the Lokpal.
When inadequate utilisation of existing law results in failure to provide results, what do our politicians do? They create a new law. Were the founding fathers of our Constitution so inept as to make inadequate laws for dealing with corruption? They were a thousand times more intelligent than the morons of the political class who rule us. Let us understand what the magic wand of the proposed Lokpal will actually entail. The Lokpal will have the jurisdiction to probe allegations of corruption against ministers, bureaucrats and judges. No sanction from the government to probe or prosecute them would be required because the Lokpal would be empowered to decide. The Lokpal would have a separate new investigative agency set up to probe them because the CBI functions under the government. Therefore along with the Lokpal a new investigative agency parallel to the CBI would also have to be created. Who will appoint the Lokpal? That is still being debated. The outrageous suggestion that a collegium including Nobel Laureates and Magsasay Award winners should appoint the Lokpal has also been made! To whom will the Lokpal be accountable? As a constitutional post the Lokpal would be accountable to the President. In other words like the Election Commission and the Central Vigilance Commissioner the Lokpal would also be accountable to the President who has been rendered into a virtual dummy of the Union cabinet. And that brings us to the nub of the problem.
The problem of unaddressed corruption and flawed governance can safely be traced to the brazen distortion of our written Constitution which has been subverted by politicians since the days of Pandit Nehru by treating the President as a titular head stripped of real responsibility. Because the government felt uncomfortable with the huge gap between the written word of the Constitution and its implementation in practice the 42nd Amendment to curtail the powers of the President was introduced. But despite this Amendment the President still has vast responsibilities that the office is not allowed to discharge due to fraudulently created convention.
Even now Article 74 states that the President may exercise powers ‘directly’. Article 53 (1) which states that executive power is vested in the President to be exercised ‘either directly or through officers subordinate’ to the President is not negated by Article 74 (1) even after the 43rd Amendment which enjoins upon the President to act in accordance with the advice tendered by the Council of Ministers. Not all duties and occasions require the cabinet’s advice. Instead, invoking Article 78 (a) the President can order the Prime Minister to report regularly each week ‘the affairs of the Union and proposals for legislation’. The President through Article 78 (c) can direct the cabinet to consider any decision by a Minister not discussed by the Cabinet and then submit a report on the subject. The President through Article 86 (1) and (2) can decide to address either or both Houses of Parliament and direct Parliament to discuss any subject. The President can ask Parliament to give substance to the unimplemented Article 263 and set up a permanent Inter-State Council to settle disputes between States, or between States and the Centre. Logically were such a council established the President elected by Parliament and all the State assemblies as the only office holder with a nationwide mandate would be required to head it? In short, our Constitution empowers the President to act as a guide and monitor of the cabinet without direct participation in execution of policy.
However, in the domain of implementing laws the President is supreme. It is the only elective office with the widest mandate in the country under oath to preserve and protect the Constitution and Laws. Every appointment, transfer, promotion and demotion of an official is in the name of the President. To honour the oath of office to preserve laws that include all official rules the President’s discretion is final. By a minor amendment making the terms of the President, Parliament and all Assemblies fixed and co-terminus the voters when supporting candidates to Parliament and Assemblies would also through indirect election choose their candidate for President. Thereby within the basic structure of the Constitution the President would be given a popular electoral mandate.
When the Constitution provides such powers to the President elected by all the MPs and all the MLAs of the nation, where is the need for a Lokpal to liberate investigative agencies from the control of the Union Cabinet? Today India is being simultaneously battered by the 2G scam, the CWG scam, the Hasan Ali scam, the Adarsh scam, the Koda mining scam, the Fake Pilots scam and a host of other scams. We do not need a distant Lokpal to address the crisis. We need a government that can perform according to existing law and not lie and mislead the public. For systemic reform we need a President to function as the founding fathers of the Constitution intended. For immediate reform we need the government to act and not prevaricate and deceive. That is what civil society should insist. When a house is on fire one does not prepare a draft Bill to make a law to establish a fire station. One puts out the fire. India is aflame. The youth are aroused. If quick results are not forthcoming the situation could get ugly.
By Rajinder Puri
The investigating agency should be authorised to seize all property, illegally acquired on the filing of the chargesheet. The strength of criminal justice system should be increased so that no case takes more than six months in any court of law, as against present 10 to 30 years. Only one appeal should be allowed instead of the layers after layers of appeals.
This position, prevails in France. Under the law only the corrupt public servants can be guilty of corruption and only government has the power to investigate such cases.
In the present law, both the giver and receiver of bribes are guilty of the crime. This is a skewed law, because, if both are guilty, then who will give evidence. Anti-corruption agencies freely lay trap with the help of the decoys, as givers of bribe, to catch such elements. The law should be changed that only the receiver of illegal gratification should be charged with the crime. It is common sense that nobody willingly bribes, which most often is extorted.
Quite often, when even huge assets are discovered, the matter is allowed to linger on fallacious and unsound pleas, that let the law take its course, which does not happen from ten to twenty years, because the judiciary has not been strengthened either with infrastructure or man power to deliver justice in a span of maximum of six months.
Now at present, before even starting any inquiry against the officials of the level of joint secretary and above, the permission of the government is required. This is apart from the sanction, after completing the investigation of a case, which is a relic of the British time, required. The government can exercise its right of denying or withdrawing the statutory sanction to prosecute public servants despite the evidence gathered against them by the investigating agency. This could prove to be one of the sticking points as the government would be loath to give up the much-abused power to block prosecution.
LOKPAL PANEL BADLY FLAWED!
Anna Hazare’s movement has started on the wrong foot.
The announced Drafting Committee of the Lokpal Bill betrays lack of principle and lack of political sense. The Committee has a representative of the government as chairman and a representative of civil society, a euphemism for Anna Hazare’s team, as the co-chairman. In addition there are four members from each group – the government’s ministers and Hazare’s movement. No opposition party is represented on the panel. In other words representatives of civil society arbitrarily approved by Hazare get precedence over members of parliament elected by the people.
J&K Chief Minister Omar Abdullah has already raised a very pertinent point.
To whom will the representatives of civil society be accountable?
However exalted a personality Anna Hazare might be, to give him precedence over parliament would be very bad in principle. Anna Hazare’s advisers made a tactical error by not insisting upon representation of the opposition in the panel. That would have been seen representing a national consensus. Now the movement is aligned with the government.
The panel will lead to muddied politics.
When the Bill is debated in parliament a miffed opposition most likely will do everything possible to stall it.
This will not serve the purpose of Anna Hazare.
But it might very well serve the purpose of the government.
Shedding crocodile tears over the delay in the passage of the Bill, the government will draw full political advantage from the fact that the opposition will be seen as creating hurdles in the way of its enactment.
Nothing would suit the government more.
The government will appear to be on the same side as Anna Hazare and against corruption. The opposition will be made to appear as an impediment to enacting the Bill and a supporter of the status quo.
It seems that the government has carefully done its homework before proceeding with the announcement of the Draft Panel.
Did Anna Hazare’s advisers also do their homework?
Today, thanks to media there is a groundswell of public support for the movement. It would be a mistake to underestimate the opposition’s ability to mobilise countervailing support. (RP)
Corruption is not a part of the duty of any government servant and it has been more than once said by the Supreme Court. But it had no effect and this way, the government of the day can protect its favourites. What the Telecommunication Minister has said that the passing of the bill would not end corruption, is right. It is for the simple reason that unless other laws in favour of the corrupt and dishonest are amended or deleted and the judiciary strengthened to decide any case within six months to one year and the budget provided, the Lok Pal Bill would be a non-starter.
The right to sting operations should be legalised both for the public and for the media, so that they can expose such elements. A percentage of illegal property of the corrupt public servants, say a minimum of 50 per cent should be given as a reward to the person exposing corruption. The steps may appear draconian, but serious diseases require surgical operations.
QUINTESSENTIAL REQUIREMENT OF DEMOCRACY
We all owe Anna Hazare a debt of gratitude for dedicating his life to the service of the people and battling for accountability and transparency in governance. Right now millions of people look to him for inspiration and guidance. We are all sick of mismanagement, venality and the lack of accountability that have become the hallmarks not only of our institutions of governance but also of many of our educational, cultural, religious and a host of other institutions including many of our NGOs who have in recent years started calling themselves “civil society” institutions because that is the term made fashionable by international donor agencies.
Anna is fortunate that the support base of the anti-corruption movement covers a very large spectrum of people, organisations and individuals. From small shopkeepers to IT honchos, film stars, retired bureaucrats and ordinary housewives, they are all out on the streets demanding accountable governance and clean polity. However, the main support base and mobilisation effort comes from a diverse range of religious and spiritual gurus like Sri Sri Ravi Shankar and Baba Ramdev who command larger and more committed followings than most of our political parties.
I feel perturbed by the disdain with which some of the movement leaders and followers treated elected representatives, MPs, MLAs who came to express support to the movement. I am the last person to defend the indefensible conduct of many of our politicians and elected representatives. As a group, they have indeed failed us badly. But so have many others the judiciary, the police, the bureaucracy, as well as many of our “religio-spiritual” leaders. Many of these worthies are no less corrupt and venal than the worst of our politicians. No politician can get away with corruption and crime without the active collaboration of the bureaucracy, police and the judiciary.
Let us also remember that some of the best and most upright leaders (Mahatma Gandhi, Jayprakash Narayan, Lokmanya Tilak, Baba Sahib Ambedkar), we have witnessed have all been members of political parties. Today, the man credited with bringing about the most progressive changes in Bihar is the state’s Chief Minister Nitish Kumar. The role he is playing for his state is no less historic than Anna’s role. Baba Ramdev himself heads a political party and yet he has been accepted as a leading player in the movement.
Those of us who claim to draw inspiration from Mahatma Gandhi cannot afford to be so self-righteous and declare ourselves to be the epitomes of purity and exclude even those elected representatives who desire to make common cause with this campaign. The arrogance of “tyag” is no less dangerous and corrosive than the arrogance that comes with money and political power. If the movement is ready to welcome film stars and other celebrities who may well be evading taxes and bypassing laws for personal benefit, why single out elected representatives especially when they come to make common cause with the movement?
We would do well to remember that people like us are self-appointed representatives of “civil society.” There are times the self appointed representatives are able to give vent to popular sentiment much more effectively than elected representatives. However, at many points such leaders, including the epochal ones like Mahatma Gandhi are ignored or even ridiculed by society. Does it mean at those times they lose the right to raise public issues?
The ground swell of support for those who are leading the current movement veryably should not undermine the importance of those who actually go to seek the mandate of the voters and are willing to accept rejection. They can even be booted out through elections whereas we self-appointed representatives can’t be voted out at those times when we exceed our brief.
Elected representatives are an integral and quintessential part of democracy, however flawed it may be. To tar all politicians with a black brush is to declare a war on democracy. There are as many or as few good politicians as there are NGOs or judges. Our democracy is without doubt highly flawed and makes it difficult for honest people to survive in electoral politics. Our politicians are as much victims of the money and muscle power dominated electoral system as they are its beneficiaries. The disdain for politicians can easily translate into disdain for democracy itself. By declaring that politicians cannot even come and express support to the anti-corruption movement from Anna Hazare’s platform because they are tainted, is to treat our elected representatives as untouchables.
Corruption is no more confined to politicians and bureaucracy. It has percolated down deep into the very vitals of society. Our panchayats are also hotbeds of corruption. Our citizens—rich and poor alike—have accepted corruption as a way of life. It is our complicity and apathy as citizens that have allowed money and muscle power to hijack the system for their personal profit. We as citizens are complicit in letting thugs come to power. Many of those who are out on the streets shouting against corrupt politicians could well be evading taxes, or violating building and other laws, selling adulterated goods and manipulating the system for personal benefit. Just as that does not undermine their urge for a clean polity, so also politicians currently using corrupt means to win elections could well be like us yearning for a more dignified entry into electoral politics.
The Lokpal Bill has already invited a good deal of well meaning criticism from those who share Anna’s hatred of corruption but have alternative strategies to suggest. Some of this criticism is as well meaning as Anna’s demands. Merely making the Lokpal a supra government body and giving it full powers to make its own appointments will not ensure that the institution becomes worthy of the trust reposed in it. For example, the power to appoint Supreme Court and High Court judges was taken away from the Government and entrusted to the collegiums of Supreme Court judges. That has not stopped some of the most venal and corrupt in the judiciary from rising to the very top, including the office of the Chief Justice of India.
The legitimate concerns of all sections of society including farmers, businessmen, politicians, professionals, must be taken on board if we want to create a corruption-free, crime-free India where people don’t have to resort to bribery string pulling and subversion of laws in order carry out any entrepreneurial activity whether as street vendors, farmers, petty shopkeepers or as industrialists.
It is equally important to recognise that the present scope of the Bill is so overarching that it could collapse under the weight of its own gigantic ambition. Anna is well aware that the existing machinery of governance is not just corrupt, it is also dysfunctional. We need far reaching administrative, judicial, police and electoral reforms, including in its recruitment policies, if the Lokpal is to become an effective instrument of vigilance and redressal.
For example, if our municipal offices, police stations, public hospitals and courts are not equipped with the appropriately skilled and motivated personnel, the right kind of incentives and resources with mechanisms of accountability inbuilt into their day to day functioning, there is no way that a Lokpal or state Lokayuktas alone can use their extraordinary powers as magic wands to get the system to work well. Some of the spade work has already been done. But the blueprint prepared by the Administrative Reforms Commission for wide spectrum reforms in every sector has been gathering dust for years. We need to bring that reform agenda on the table along with the Lokpal Bill in order to restore the health of our institutions of governance. Otherwise, the Lokpal will either collapse under the tsunami of complaints that will sweep it off its feet or become yet another bureaucratic dead weight on the existing rotten system.
By Madhu Purnima Kishwar
The author is editor of Manushi.
The indignation over corruption is appropriate, as we are the 87th most corrupt country in the world, with an integrity score of 33 out of 100, as per the 2010 report of Transparency International.
The Political & Economic Risk Consultancy Ltd, Hong Kong has rated India, in 2011 at 8.67 on a scale of zero to 10 with the high end being the worst case of corruption scenario and ahead of the Philippines (8.9 points), Indonesia (9.25 points) and Cambodia (9.27 points). Among the 16 countries reviewed in its latest report, Thailand was rated at 11th place with a scale of 7.55, followed by China (7.93) and Vietnam (8.3), Singapore had a score of 0.37, followed by Hong Kong (1.10), Australia (1.39), Japan (1.90) and USA (2.39), putting them in the top five. It is more than overdue for the government to take this issue seriously, for which the minimum punishment should be life sentence, with no remission and maximum death for looting the country and countrymen.
By Joginder Singh
(The author is former Director, CBI)