Hindustan Times
June 02, 2011
Who’s afraid of the Lokpal Bill?
The proposed Jan Lokpal Bill has evoked strong reactions, a number of them emotionally charged. One is struck by the conflicting claims and counter-claims in the media. While it’s hard to determine the truth in such matters, a summary of some of the misgivings and the possible intentions, with an assessment of what possibly is the reality, follows:
*The Lokpal is being dubbed as a Leviathan
Fear: Being a much too powerful agency, it is being projected to be a threat to democracy. It is being said that it should not have powers of search, summons, phone tapping, contempt of court, etc.
Reality: The existing law enforcement and investigative agencies such as the Enforcement Directorate, the Central Bureau of Investigation and the Income Tax Department enjoy all these powers. No new powers have been suggested for the Lokpal. But the corrupt will be all too happy with a weak Lokpal. So the Lokpal must be strong but with adequate checks and balances.
*Is the jurisdiction of the Lokpal too large?
Fear: The jurisdiction of the Lokpal proposed in the bill is vast. It should be curtailed to only politicians.
Reality: The nexus between the political executive and the bureaucracy is well known. No politician can indulge in corrupt acts without active connivance of bureaucrats and vice versa. Trying to curb corrupt acts of only one kind of actors is ineffective and inefficient. This model has been in existence in several states for lokayuktas and has completely failed.
Almost no corruption starts at the level of a politician. It normally starts with a bureaucrat who writes something on the file, maybe under pressure. The politician’s role becomes visible after many levels. This is why almost no case reaches the lokayuktas.
The Delhi Lokayukta has jurisdiction only over politicians. Justice Mohammad Shamim, former Delhi Lokayukta, had complained that though the government spent almost R1.25 crore on his institution annually, he received less than five actionable complaints every year. The Karnataka Lokayukta, with jurisdiction over both politicians and bureaucrats, works very well.
The annual conference of all lokayuktas has been consistently demanding that this fractured mandate given to them covering only politicians was serving the interests of only the corrupt and should be expanded to cover bureaucrats, thus replicating the Karnataka model in every state.
*Should the Lokpal deal with judicial corruption?
Fear: This will endanger independence of the judiciary.
Reality: Under the present system, one has to obtain permission from the Chief Justice of India to file a first information report (FIR) against any judge. In the last 20 years, such permission was granted in just one case despite innumerable cases of blatant corruption by judges exposed in the public domain.
This system has encouraged corruption in the judiciary. The Jan Lokpal Bill only provides that a seven-member bench of Lokpal should grant such permission in open hearings. The present system, which protects corrupt judges, is seriously compromising the independence of the judiciary.
*There are no mechanisms to deal with corruption within the institution of Lokpal.
Fear: What’s the guarantee the Lokpal won’t turn corrupt?
Reality: Some of the proposals to check corruption within the Lokpal include the annual financial and performance audit of the Lokpal by the comptroller and auditor general of India, the annual appraisal of the Lokpal by the relevant parliamentary committee, the setting up of complaints authorities in each state that also involve people from civil society, open hearings by the complaints authority, internal transparency in the functioning of the Lokpal, regular social audits of various levels of the Lokpal, complaints against members of the Lokpal to be made directly to the Supreme Court.
More checks and balances can and need to be thought of.
*The Lokpal will suffer in no time from overload
Fear: Given the widespread prevalence of corruption in the country, the Lokpal will be swamped with and paralysed by the sheer number of complaints. It should, therefore, deal with corruption only at higher levels.
Reality: Members and the chairperson of the Lokpal are not envisaged as a set of investigators who would be able to handle only a limited number of cases. What possibly is intended is an anti-corruption system capable of enforcing the Prevention of Corruption Act. Lokpal members will not directly deal with any case.
There will be a set-up under them that will deal with the cases. They may have a certain number of special investigative units directly under their control to deal with high profile cases. But the rest of the machinery will receive and investigate smaller cases.
After developing cold feet and agreeing to demands that were fundamentally unpalatable to them, the politician-bureaucrat-business nexus has regrouped and has been looking to discredit the entire anti-corruption effort. This was first attempted by some crude allegations aimed at what were considered to be vulnerable individuals.
When that did not get much traction, seemingly ideological opposition was raked up. Two major principles in use seem to be ‘divide and rule’ and ‘delay is the most effective form of denial’.
The Jan Lokpal Bill, if it comes into force, will not eradicate corruption or its root causes from society. Only large-scale social change impacting basic values of society can do that.
The Jan Lokpal can only put obstacles in the path of — and fear of the law into the minds of — the potentially corrupt. It is not a panacea for all of India’s social ills. Nothing can be. But it certainly is a good and necessary step in a long journey.
(Jagdeep S Chhokar is a former professor, dean and director in-charge of the Indian Institute of Management, Ahmedabad. The views expressed by the author are personal)
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