While the institution will help check the menace, don’t see it as apanacea

A FRIEND had a sign on her email account which read, “ I demand Jan Lokpal.

Do you? Come, join the Anti- Corruption Movement.” This sentiment appears to be shared widely. But there is something that is very fundamental that needs to be understood here.

A strong anti- corruption regime will not be fully achieved by just passing the Jan Lokpal Bill or the government version of the Lokpal Bill. Creating a strong Lokpal will be a useful step in combating the menace of corruption, but by no means will it be sufficient to eradicate this deep- rooted problem that is endemic in our society.

The idea of constituting an Ombudsman type institution to look into the grievances of individuals against the administration was first mooted in 1963 during a debate on Demands for Grants for the Law Ministry. In 1966, the First Administrative Reforms Commission recommended that two independent authorities at the central and state level be established to enquire into complaints against public functionaries ( including Members of Parliament).

History

The Lokpal Bill was introduced for the first time in 1968 but it lapsed with the dissolution of the Lok Sabha. It was introduced seven more times in Parliament, the last time in 2001. However, the Bill lapsed each time except in 1985 when it was withdrawn.

At the state level, so far 18 states have created the institution of the Lokayukta through Lokayukta Acts.

In 2002, the report of the National Commission to Review the Working of the Constitution urged that the Constitution should provide for the appointment of the Lokpal and Lokayuktas in the states but suggested that the Prime Minister should be kept out of the purview of the authority.

In 2004, the UPA government’s National Common Minimum Programme promised that the Lokpal Bill would be enacted.

The Second Administrative Reforms Commission, formed in 2005, also recommended that the office of the Lokpal be established without delay. In April this year, the government formed a Joint Committee with five nominees of Shri Anna Hazare and five nominees of the government to draft a Lokpal Bill. The Committee could not agree on a Bill and two versions were published. This month, the government introduced the Lokpal Bill, 2011 in Parliament. There are several key differences between this Bill and the Jan Lokpal Bill drafted by Shri Hazare’s nominees.

The government’s Lokpal would be chosen by a Selection Committee consisting of the PM, Lok Sabha Speaker, the Leader of Opposition in each House of Parliament, a Union Cabinet Minister, a sitting Supreme Court Judge, a sitting HighCourt Chief Justice, an eminent jurist, an eminent person in public life. The Jan Lokpal Bill states that the Selection Committee shall consist of PM, Leader of the Opposition in the Lok Sabha, 2 judges of the Supreme Court, 2 chief justices of a high court, the Chief Election Commissioner, the CAG, and all previous chairpersons of the Lokpal. The members shall be selected from a list prepared by the Search Committee ( 10 members including civil society representatives).

The jurisdiction of the government’s version of the Lokpal Bill includes the Prime Minister after he demits office, Ministers, MPs, all Group A government officers and NGOs which receive funds from the public and have a certain annual income. The Jan Lokpal Bill covers the PM, MPs, Ministers, judges and all government employees. It also includes speech and vote of an MP in Parliament, willfully giving or taking benefit from a person and victimising a whistleblower or witness. It does not include NGOs.

Problems

The Lokpal Bill allows the Lokpal to ask its investigation wing to conduct preliminary investigation of any offence under the Prevention of Corruption Act, 1988. It can then conduct an inquiry. If the inquiry concludes that an offence was committed, the Lokpal can recommend disciplinary action or file a case in the Special Court. The Lokpal does not need prior sanction to either investigate or prosecute an official. The Jan Lokpal Bill provides that the investigation and prosecution wings of the CBI shall report to the Lokpal for corruption cases. Also, any investigation and prosecution against the PM, MPs, Ministers, and judges can be initiated only with permission of a 7- member bench of the Lokpal.

The government Bill imposes penalty on a corrupt official of a fine and imprisonment between six months and 7 years.

The Jan Lokpal Bill penalises a corrupt official with imprisonment between six months and life imprisonment. If the beneficiary for an offence is a business entity, a fine of up to five times the loss caused to the public shall be recovered. Also, if the director of a company is convicted, the company shall be blacklisted from any government contract. The public servant shall be removed from office if convicted.

Even as many of us agitate to get a strong anti- corruption law, it would be useful to understand at least three relevant aspects about this effort.

Firstly, we have many laws that have been passed by Parliament and state legislatures.

In many of these laws, there are loopholes that tend to provide opportunities for corruption. A major contributor to corruption is when discretion is given to the implementing officers to take certain decisions. But that is always a hard line to draw — how much discretion to allow for effective implementation of the law in a way that is relevant to local realities, and how much does such discretion lead to corruption? Clearly, every law on our books needs to be reviewed from the prism of what parts of it is resulting in corruption.

Without this, we will be continually creating a pipeline of opportunities for some unscrupulous officials to indulge in corrupt practices.

Secondly, once a law is written up, it is critical to enforce it in all seriousness. Our Parliament and state legislatures pass laws that require huge amounts of money to be spent. But then when it comes to providing the funding for implementation of all of the laws that they have passed, our governments and MPs under- fund the mandates in many cases. So, even when it comes to investing in strengthening our criminal justice system which is critical to ensuring a corruption free country, there has been systematic under- funding for many years both for the police and for the judicial system.

Debate

Thirdly, there are bureaucratic inefficiencies in most large organisations both in the private sector and government. Large organisations require established procedures, hierarchies, and systems. Many institutional mechanisms that governments create are large, and are therefore less efficient by design.

So rather than look at any version of the Lokpal as a panacea to address the problem of corruption in India, this may be a good time to have a constructive debate about the larger questions of what the role of the government is and should be, how the expectations and capabilities of citizens have changed over the past sixty years, what kind of a government and governance system we will need as a country to rise up to being the super- power status that many of us want India to achieve.

This is as much a time for reflection, as it is for action — so that our minds and hearts work in tandem to get the best possible solution for all of us.