Corruption, Jan Lokpal Bill and the Rule of Law

Corruption has now become a major of issue of concern for a vast majority of Indians. Major scandals of recent past have shaken the ordinary people. But are we, as citizens, serious to confront this scourge once for all? This needs to be discussed with an open mind.

Those who believe that corruption is a recent phenomenon live in illusions. ‘Bhishma Pitamah’ of Indian politics, Chanakya, had commented, “Corruption and governance are like fish and water”. He is a political philosopher, who commands large following and admiration since centuries and is considered a political ideal by a majority of the politicians and by bureaucrats.

The question arises who is not corrupt? For me anybody who got an opportunity to exploit the trust and loopholes of the system in one’s own favour but refused to be tempted by greed and lust is a person of integrity. An individual who never got an opportunity to indulge in corruption may be a person of integrity only till he gets the chance to prove otherwise.

During the last quarter of the century, the issue of corruption has become only an issue of politics. All those who have political aspirations exploited the issue to get either prominence or political power. Unfortunately, a majority of these voices got themselves exposed before taking the issue to a decisive stage.

With the rise of the Indian middle class, the country unfortunately has seen the rise of corruption. According to an estimate, every 12th house in posh localities of Delhi and every 10th industrial unit, big or small, in Delhi had in past or still indulges in electricity theft. While travelling in public transport buses, one would usually listen from a good number of  ticketless commuters, the word “staff” when asked to show their tickets.  These self-proclaimed “staff members” are ready to react violently if asked to pay a fine or advised to purchase tickets.

A majority of Indian newspapers furnish frivolous data to be placed in the category of top slabs in order to get government advertisements at higher rates. The menance of paid news has reached an alarming proportions and innocent Indians are forced to read and watch what the paid newspapers and channels offer as genuine news.

One would be amused to see an advertisement of a tender notice by a government department for goods and projects in newspapers. Most of the time, the cost of the advertisements surpasses the estimated cost of the goods or work. Also, if one minutely follows tender advertisements, the inviting department also announces the estimate cost of the goods or the work. There have been known instances when the tender inviting departments have raised the cost of the goods or work in collision with the suppliers and the contractors but if one follows the tender mafia minutely there are more ways to plunder the taxpayers than that of raising the cost of the goods or work. Most of the times the tenders are awarded below the announced estimated cost. It is difficult to understand how government officials who had announced calculated estimated cost of goods or work, issue contract orders below the announced estimated cost. If a km of road stretch is estimated to cost a million rupees but a contractor offers to complete the same project at less than the estimated cost, then the officer who had calculated the estimate should be grilled for his incompetence. No doubt, any tender below the estimated cost is at the cost of quality because its an open secret that the supplier or the contractor needs to grease the palm of every officer in the department besides keeping the concerned local politicians in good humour in addition to his own profit. Former PM, late Rajiv Gandhi, had once commented that only 15 percent of the sanctioned amount in government schemes reaches the people.

The process to get permission to initiate the prosecution of government officials and ministers is near impossible to complete. Most of the time the higher ups sit on the files for the permission submitted by the investigating agencies. Governments irrespective of parties at the helm, slowdown the process or ensure that offenders are never prosecuted.

Between 2005-2009, on the recommendation of the Central Vigilance Commission, the premium institution to fight corruption at the central level, the Central Government had sanctioned just six percent of the cases and the remaining 94 percent of the cases were let off with departmental enquiries and minor penalties.

As per the records available of the period till 2010, the central government not even responded to 236 requests of the investigating agencies to prosecute public servants on corruption. 66 percent of these 236 cases were pending before the central government for more than three months.

Various state governments, irrespective of their political colours, have not responded to 84 requests of the investigating agencies for prosecuting officials on corruption charges during the same period.

Slow criminal justice process has become one of the factors for the steep rise of the corrupt practices in public life. By the end of 2010, there were nearly 10,000 CBI cases pending in courts and close to a quarter, i.e., 23 percent, of these cases were pending for more than 10 years.

In 1963, the idea of Lokpal or the office of the Ombudsman was first floated during a parliamentary debate. After the recommendation of the First Administrative Reforms Commission in 1968 under the chairmanship of Morarji Desai, who later became prime minister, there have been eight unsuccessful attempts to introduce the Anti-Corruption Bill in the Parliament but political parties failed to make a consensus on the powers of the Lokpal.

The huge amount of wealth being exposed in recent scandals has prompted the civil society to initiate the process of having a Jan Lokpal Bill with a demand to have a strong and effective Lokpal to tackle the menance of corruption where citizens can directly file complaints about any omission or commission that constitutes an offence under the Prevention of Corruption Act 1988, against any public servant including the prime minister, ministers, members of Parliament, Government servants and employees of statutory corporations with powers of enquiry, investigation, prosecution, enforcement of orders, tapping phones and intercepting messages, confiscating properties of the accused etc – all proposed to be vested in one single window of Lokpal.

But there are fears that the concept of a single authority with wide-ranging powers and functions to investigate and prosecute goes against the basic principles of separation of the two functions in the criminal justice system. The independence of the prosecutor would always be in question if the prosecutor and the investigating agency both are under the overall control of Lokpal. Another highly contentious provision in the Jan Lokpal Bill is to limit the powers of the President to sign on the dotted lines of the recommended names of Lokpal, snatching the right of the President to satisfy him/herself that the procedure of selection as laid down by the law has been properly followed.

The draftsmen of the Jan Lok Pal Bill have enthusiastically ignored another important independent side of fairness by insisting on videography of the selection procedure and making it public. There can be instances where if all candidates were qualified and received same marks in the interview process and there were deliberations to select the best from amongst them, the free deliberation is likely to be affected if discussions are allowed to be made public.

Another surprising aspect of the Jan Lokpal Bill is the provision of having absolute discretion of the Lokpal over the use of the funds generated through the share of 10 percent of the confiscated money and of penalties. This provision is against the basic powers of the legislative checks on the spending of funds collected from the public. The second flaw in this proposed provision is that it is silent on its source of income in case Lokpal fails to reach any conclusion on the complaints against the officials and is not able to generate the required funds for its functioning.

Also if the provisions of the bill are accepted in toto, there are fears that the provisions would encroach upon the independence of even the Supreme Court and thus the judiciary in general.

Another anomaly in the Jan Lokpal Bill draft is the provision to cover the corruption of the Central government officials only. It is totally silent on role of Lokpal vis-á-vis the cases of corruption at the state level and its authority in case the state ombudsman fails in his duty to act or ignores the complaints against the politicins and the government officers of the state and that of the officials of the powerful municipal corporations where the level of corruption is unimaginable.

The draft gives an impression that Lokpal would be an authority above all constitutional institutions.

The anti-corruption campaign is an important issue to safeguard the foundations of society and nation at large. But sincerity of all would be at stake if one fails to see the dangers of inequality, exclusiveness, criminalisation in politics and communalism. The denial of the rights to oppressed groups of tribals, scheduled castes and minorities is a major issue which would endanger the progress and unity of nation. Few talk about the important provision of fraternity enshrined in the Constitution. The concept of togetherness is missing just because of the indifferent and biased approach of the ruling class irrespective of its political colour. Sachar Committee had revealed that the country had failed in its paramount duty to do justice to the second largest section of our society, Muslims, who have become backward in every walk of life. Denying rights to the oppressed and the minorities is nothing but worst political corruption. If financial corruption would endanger the progress of our nation, the political corruption of exclusiveness and hate would endanger the unity of India.

No movement against corruption would succeed if we fail to educate people about the dangers of temptation to vote-for-note at times of elections. It is general public which, intentionally or unintentionally, encourages the malpractices and corruption by selling their votes to those who are desperate to get into the institutions of power for minting nothing but money and enjoy power. For free and transparent election, political parties and  civil society should launch an agitation to have law for the state funding of the elections in order to eradicate the menance of financial corruption and nexus between leaders, officers and the corporate houses.

It is an irony that in the past the campaigns against financial corruption were hijacked by the communal forces to pursue their own agenda to enter the corridors of power. Anna Hazare understood the anguish of the younger generations against corruption and proved himself to be the Pied Piper to start a campaign for the Lokpal Bill. It is the need of the hour that all those who are associated with Anna should ensure that he keeps his campaign away from the influence of the communal forces and their mukhotas (masks) because they are more dangerous than the cause for which he wishes to fight.

The writer is Secretary, Peoples’ Integration Council and Member, National Integration Council, Government of India