Wednesday, October 5th, 2022 17:26:13

The Other View Jan Lokpal A Quack’s Prescription

Updated: September 10, 2011 4:03 pm

There exists an astonishing perversity of consensus about the desirability of having a Lokpal. Everyone seems to want one and everyone seems to think that having one is critical to the crusade against corruption. Voices of dissent have been few and far between and more about the role a coterie of self-appointed “Civil Society” representatives have arrogated to themselves, and the manner in which they have tried to sidetrack the processes of parliamentary democracy, than about the Lokpal per se.

Will the Lokpal make even an iota of difference to the bewildering diversity of rent-seeking avenues that exist within the Indian state system? Will it bring about a change of heart in the corrupt? Will it transform decision-making processes within the Central Government and make decision-makers more democratically accountable? Is greater centralisation of authority in a public official and the creation of a whole new bureaucracy an answer to the problems created by bureaucratic centralisation in the first instance? The answer to all these questions, in my view, is an overwhelming “No”. Why then persist with a proposal which we know will only open yet another rent-seeking opportunity and the emergence of new czars of anti-corruption corruption? The proposal deserves to be summarily jettisoned. I propose not dilution or moderation but an outright rejection.

Why? For one, a prescription made without knowing what the disease is, or made after defining the disease in such simplistic, generic terms so as to make the definition meaningless, can lead to fatal aftereffects. “Corruption” is one of those seemingly universal, umbrella words which can mean very different things to different people, but which everyone thinks is a commonly shared term. But let’s face it, even when we talk of “financial” corruption, we are referring to a bewildering variety of wrongdoings. There is “corruption” which is better described as rent-seeking. There is corruption through cronyism. There is corruption through misuse of power and authority for personal gain. There is corruption through defalcation and embezzlement of public funds. There is corruption through patronage and favouritism. Each of these forms of “corruption” requires very different treatment, and rarely, if at all, can a cure-all prescription like the Lokpal accomplish the needed changes. The votaries of the Lokpal Bill have neither seem to be taking an over simplistic view and offering a universal prescription with the smugness of self-righteous quacks.

It is difficult to attempt, here, a detailed analysis of some of the causal factors which make the Indian State into a gigantic rent-seeking apparatus, but a few major points stand out. The first is the sheer size of the state. The Indian State remains “overdeveloped” (using an old thesis of the sociologist Hamza Alawi) in relation to the classes of civil society and constitutes a class by and for itself. It uses its inherent coercive power to encroach, through legislative and administrative means, into as many spheres of activity as it possibly can. Then by prescribing an increasingly complex set of “dos” and “don’ts” it ensures that permissions and approvals are required for virtually any and every action. By taking on the role of being a monopoly that produces and supplies a whole range of services, and becoming the engine as well as the driver of the economy, it positions itself in a perfect situation to become a super-rentier. Corruption is therefore embedded in the basic framework of the state system.

The second factor is the structure of Indian democracy, heavily biased in favour of a centralised, unitary state in which the legislature plays a secondary role to the executive on the one hand, while federated units and local governments get increasingly subordinated, especially in the economic and financial decision-making sphere. The primary role of the sub-state agent becomes something like that of a franchise holder who operates the rent-seeking business for the parent company on a revenue-share model. In this case, the regional or local “government” institution is not really an autonomous unit of democracy taking its own decisions, but an implementing agency. The number of such agencies is so large that it is impossible to fix responsibility and maintain any kind of transparency. The power to say “no” is completely decentralised and devolved, so that everyone can block or hinder the execution of a task unless s/he is paid a share of rent, and the power to say “yes” so centralised so that at the apex the highest share of the rent revenue can be collected.

The proponents of the Lokpal Bill, on the other hand, ignore these systemic flaws and accept the structure of decision-making and democracy as it is. They are behaving like knights in shining armour going full pelt tilting at the giant wind mills of corruption.

One of the biggest flaws in such thinking is the premise that the fear of getting caught and being punished will keep a check on corrupt behaviour. This is as naive as thinking that theft and burglary and murder will be reined in if the police is given even more draconian powers to catch and prosecute offenders. In fact, it is well-established that beyond a certain threshold, policing and crime develop a cosy relationship with one another and a vested interest develops in keeping crime alive to sustain an expansionary police, especially if crime acquires a strong financial and commercial dimension. The police then go actively fishing for crime and sniffing out new opportunities for extracting rent. The perpetuation of crime justifies more police, so crime has to be kept alive for the police to keep itself in business. Already, the CBI looks for and more opportunities to carry out investigations not merely to sustain themselves, but to reassert their position in the bureaucratic power hierarchy. Trivial cases, generated on the basis of dubious “source reports,” are kept alive for years on end either to extort money or other benefits, such as discretionary allotment of scarce government housing, or simply to show one’s place in the power structure. For every genuine case of corruption, there are five times the number of cases involving trumped-up charges against honest persons, which never come to light because they are deliberately prolonged to keep the extortion-and-power business going. Such instances will grow exponentially with a super-powerful, “independent” agency like the Lokpal and the removal of existing safeguards which offer a modicum of protection to the honest.

For the dishonest the deterrent value of a powerful Lokpal is actually very little. Having a ‘strong’ Lokpal only means that he /she has to work out more ingenious ways of escaping detection. In any case, most corruption rarely comes to notice because the corrupt are more often than not (except where sheer arrogance of a Maran, Raja, Kalmadi etc, makes them careless) very careful about correctness of procedure. Vigil keepers and investigators invariably look for deviation from rule, norm or procedure to keep a check on corruption or to nail the corrupt, forgetting the fact that most of the really corrupt are clever enough to be meticulous in their paperwork and conform strictly to the established procedure.

In defence procurements, to cite just one example, there is a well established hierarchy of rent collectors along the approval chain. The approval cycle itself is so complicated and so lengthy that the opportunity for each functionary or facilitator to collect his share of the booty along the nuisance value chain is maximised (the Tehelka tapes gave us a fleeting glimpse of that). At no stage does anyone really need to circumvent or shortcircuit the procedure—because following the procedure itself provides the opportunity. Paradoxically, the higher the level of procedural correctness and propriety required, the higher the chances of the bidders having to pay more for a smooth passage through the procedural rigmarole. For the rent collectors/ facilitators along the approval chain, it is not necessary to either deviate from procedure or to influence the purchase decision in favour of any bidder. All he needs to do is to keep the process moving forward, because all the bidders open a kind of “Letter of Credit” with the established chain of rent collectors before the procurement process begins; as each stage of the transaction is crossed, the rent gets automatically paid at the appropriate level. At the apex of the decision-making chain is the Chief Collector, which could be the Minister/ Prime Minister, or his/her confidante, who gets the highest share of the rent. It matters little who wins an order, because payment is made for the final approval being granted and not for deciding in any one person or agent’s favour. The drill is so well-established that the flow of rent rarely gets disrupted, except when there is a falling-out among the middlemen, or one of them decides to violate the Thieves’ Code of Honour. No part of the procedure is violated, no rule flouted, no bias shown and no pressure exercised. At the apex decision-making level, all that is required is steady progress of the transaction along the approval chain and the regular flow of advance information to keep negotiations ongoing with all the bidders until the end and then strike the best bargain with the one most likely to win. In the Bofors case, for example, the choice of the gun had nothing to do with the payouts. Had any other gun been chosen, the same commissions would have been paid, except that the middle level agent/ middleman, like Win Chaddha, would have been different for each company. The agents who operate at the highest levels (like the Hindujas were said to be) are guaranteed their share, because it is known that bypassing them means risking the whole deal. Fear of detection, prosecution, or punishment has no impact whatsoever in a transaction of this kind.

Fear of harassment from the investigation/audit/vigilance agency, on the other hand, has a paralysing impact on the honest. An honest person has only his or her carefully built record of integrity to be proud of and a reputation to defend. If s/he is also a doer, s/he is most likely to make mistakes and often fall foul of procedural propriety. If s/he knows that s/he has to constantly look behind his or her back before taking a decision, or that the consequences of making a bona fide mistake or an error of fact or procedure means being subjected to interminable investigation which will wreck a carefully built reputation, s/he will just stop taking any decisions which could later come under scrutiny. This kind of paralysis has already hit many departments, like Defence, which have to take complex techno-commercial decisions.

Internal file notations, in which officers were encouraged to freely express their opinions, disagree, admonish, praise, overrule, once served as a fascinating record of the internal decision making process; now they undergo a pre-scrutiny to ensure that before pen is put to paper, the implications of each sentence are carefully worked out and an “agreed-upon”, fully sanitised note is prepared which can have a smooth passage. Officers who may not fall in line with such a procedure are simply transferred and replaced with more pliable ones. Inconvenient notations are routinely replaced to ensure that the file becomes a bland, controversy-free document, showing complete unanimity of approach along the hierarchy. Files which may not conform to this sanitising routine are simply buried, and once the personnel concerned have moved on or out, a new file is started. And this is the situation within the ostensibly constrained environment that the CAG/CVC/CBI triad function under. We could soon have a situation (and we have already come a fair way towards it) where only the proactive rent-seeker will actively participate, and the honest will either conveniently slip out of the decision-making process, or deflect the issue expertly to put it into a spin so that no decision is possible during his or her tenure. The bright officers will be doing what they are really good at— “paralysis by analysis”. As no one is ever penalised for inaction, or delayed decision-making, or nipping bold, unconventional ideas in the bud, the timid, the pusillanimous, the servile, the nit-picker, and the status quo’ist will prevail. Any discerning observer can see that this kind of rot is already widespread. The Lokpal will ensure that such behaviour now gets wholly institutionalized and rewarded. The incentives will move in the direction of those who do not take decisions.

Is there a way out or should we simply learn to live with corruption?

A true crusade against corruption must begin with radically rethinking and redesigning structures, institutions, and processes. There are no shortcuts to this. The state has to be made to shrink, to reduce the sphere of its activities, and to devolve most of its powers, resources, and jurisdiction to the smallest, feasible unit of democratic governance following the principles of subsidiarity. Devolution has to be comprehensive including the actual physical transfer of assets, resources and the power to raise resources. Decision-making has to involve the participation of the maximum number of people and there has to be a concerted move to move from bureaucratic processes to democratic ones. Budgets, as instruments of control and regulation have to replace administrative hierarchy-based controls with clearly designated responsibilities to “Budget Holders” for achieving budgeted outcomes. Internal delegation of powers has to follow the principle of “maximum possible” rather than “minimum necessary” and mutual trust has to replace mutual suspicion. Direct elections have to be confined to the smallest identified unit of democracy and governance—village, block, district, city—so that people have direct knowledge of the people they are electing and election costs are affordable to everyone. Elections to any other tier of democracy have to be indirect. This requires a complete rethinking of the architecture of democracy to bring it as close as possible to the Gandhian blueprint. In other words—Panchayati Raj has to be reinvented, utterly and comprehensively.

These suggestions need to be elaborated at length to carry the debate forward. Enough to say at this point that the grand crusade against corruption has-instead of addressing these issues and mobilising popular support for a large-scale transformation of politics and governance, reduced itself to a campaign for an authoritarian bureaucracy, centralised controls, and a further diminution of even the limited institutions of democracy we have been successful in nurturing. What we need is more democracy, not less.

 By Amitabha Pande

The author is former Secretary to the Government of India. (Courtesy: Manushi)

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