Lokpal needs teeth to bite

The Tribune, July 02, 2011

OPED GOVERNANCE

That there will be a consensus on Lokpal is not in doubt. The real issue is what kind of Lokpal will get a consensus — perhaps not the one that might have the potential to make a real difference to the functioning of the establishment

LOKPAL NEEDS TEETH TO BITE

Jagdeep S. Chhokar

http://www.tribuneindia.com/2011/20110702/edit.htm#6

THE empire strikes back", 'Divide and rule' triumphs". These could well be the headlines towards the end of British rule in the subcontinent. Interestingly, substituting "empire" with "establishment" could make it a headline appropriate for the situation today. Having succeeded in first propping up Baba Ramdev, thus dividing what was labelled as a "civil society", then discrediting him and now in hyphenating Ramdev and Anna Hazare, the glee in the "establishment" is hard to miss.

Who or what is this "establishment"? In most discussions on the issue, it is often referred to as "the government". Even an editorial in The Tribune on June 14 ends on a pious note, saying "The country must be tired of the daily discourse on corruption and probity in public life. It is time to act and the government will do well to forge a consensus among all political parties on how to combat corruption before Parliament's monsoon session begins."

Lifting the veil

Using the corporate law provision of "lifting the corporate veil" in which the persons actually behind the artificially created corporations are identified in exceptional situations, it is time the nation looked behind the corporate veil of the government: where does the government come from? It comes from Parliament because members of the political executive come from amongst the members of Parliament.

Continuing with the lifting of the veil, where do the MPs come from? Yes, in theory, "We, the People" elect them but before "we" can vote for or against the candidates contesting elections, who decides who can be candidates? Yes, in theory again, anyone can be a candidate but in practice, one needs the nomination of a political party to become a candidate with a realistic chance of being elected. So, behind "the government", there are political parties.

So, does "the establishment" consist only of political parties? Not really. Only one section of society, however powerful, cannot hold society to ransom, to use a strong expression. "The establishment" actually consists of the political parties in collaboration (collusion will again be a strong expression) with the bureaucracy and big business.

The glee, therefore, is not confined to the government; it extends to all political parties, the bureaucracy and business. This is what the Jan Lokpal Bill is up against. Yes, a Lokpal Bill will be introduced in the monsoon session of the Lok Sabha, and it might even be passed, even unanimously, with "consensus among all political parties", as the editorial on June 14 advised. But what is that likely to be? Let us look at some examples of issues on which there has been a consensus among political parties in the past.

Instances of increasing the MPLAD Fund amount and the salary for MPs are too obvious and well known to be mentioned. So let us stick to three instances arising out of personal experience.
The first was in 2002 when the Supreme Court ordered a mandatory disclosure of criminal, financial and educational antecedents of the candidates contesting elections to Parliament and state assemblies, and the Election Commission issued orders to implement the Supreme Court's decision.

It was decided at an all-party meeting on July 8, 2002, that this would not be allowed and the Representation of the People Act will be amended in that very session of Parliament. The amending Bill was ready by July 15, in seven days flat, but could not be introduced as Parliament was adjourned due to the petrol pump scam when Ram Naik was the Petroleum Minister. The government was not deterred.

The Cabinet decided to issue an Ordinance. When the newly elected President, Abdul Kalam, "returned" the Ordinance without signing, it was sent to him again, and he had to sign. The Ordinance was finally declared "unconstitutional…null and void" by the Supreme Court on March 13, 2003.

The second instance was in 2007-08 when the Income Tax Department refused to provide copies of income tax returns of political parties in response to an application under the Right to Information Act because political parties objected to it. The objections were despite the fact that political parties were claiming, and getting, 100 per cent exemption from income tax under a law that Parliament had enacted.

In the hearing of an appeal to the Central Information Commission (CIC), ten lawyers showed up to represent various political parties, including some who had flown in from outside Delhi, to oppose the disclosure. Fortunately, the CIC decided that copies of IT returns had to be given.

The third, and the latest, started in 2009, and culminated on June 03 this year. The Committee on Ethics of the Rajya Sabha instituted a "Register of Interests" of members, in which the financial, business and other commercial interests of members were to be recorded. The stated purpose of the register was to avoid potential conflicts of interest while members of the Rajya Sabha participated in debates in the House and in the formation of standing committees on various issues.

When copies of the register of interests were requested under the RTI Act, these were refused. The response of the Appellate Authority in the Rajya Sabha Secretariat, received on November 23, 2009, to the first appeal was that "the Committee on Ethics, Rajya Sabha,…taking a unanimous view claimed exemption from furnishing the desired information…the decision not to allow the information asked for is that of the Committee on Ethics, Rajya Sabha, which has the endorsement of the Chairman of the Committee" (italics added). Once again, the CIC, on second appeal, decided on June 03, 2011, that the information should be provided.

Politics of consensus

These three instances prove, beyond doubt, that our political parties have no problem in arriving at a consensus and acting unanimously provided (and this is critical) the issue is of their interest. And obviously, these are not the only instances. Consensus and unanimity are also visible when 17 Bills are passed in eleven minutes. What that shows about the application of mind and the quality of scrutiny and discussion is a separate issue.

That there will be a consensus on a Lokpal Bill is not in doubt. The real issue is what kind of a Lokpal will get a consensus: one like a plethora of existing institutions that have acquiesced in corruption becoming rampant at the behest of the establishment, or the one that might have the potential to make a real difference to the functioning of the establishment, and an "effective" Lokpal with teeth that can actually bite.

The writer is a former Professor, Dean and Director of the Indian Institute of Management, Ahmedabad.
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There is conflict of interest

Now that there are two Lokpal Bills -- the Jan Lokpal Bill (JLB) and the Government Lokpal Bill (GLB) -- what is likely to happen? Political predictions obviously are always unreliable and also hazardous, but one plausible scenario is the following. Both the Bills will be presented to the Cabinet. The Cabinet has members of parties other than the Congress too. Depending on the clout of the non-Congress Cabinet members (which is not overwhelming, if it is there at all), there might be some changes in the GLB.

The Cabinet will decide which one of the Bills, or both of them, should be put first to the all-party meeting, and then to Parliament. All-party meetings, particularly on crucial national issues, usually do not produce a consensus as we saw again on the women's reservation issue, and it seems unlikely that the opposition parties will like to allow the UPA to get credit for introducing a credible Lokpal.

A big risk unlikely

That will leave it to the UPA to decide what to put before Parliament. Given the complexity as well as delicacy of the current socio-political situation, and going by its past record, the UPA is unlikely to take a big risk by taking a definitive stand.

Even if the above scenario is unlikely, let us for the moment assume that the two Bills, the JLB and the GLB, are put to vote in Parliament. Which way is the vote in Parliament likely to go?
Before the above question can be answered, let us continue with the "lifting of the veil". What is Parliament? It is comprised of its members. But who are its members?

With due respect to Parliament as the highest democratic institution in the country, some bitter facts stare us in the face. On the basis of data taken from sworn affidavits submitted by members of Parliament as part of their nomination papers while contesting elections, 162 out of 543 members of the current Lok Sabha (2009) have criminal cases pending against them in which charges have been framed by the court of law and the punishment for which is two or more years of imprisonment. This number, based on the same source, was 156 in the earlier Lok Sabha (2004).

The same source shows that there are 315 crorepatis in the current Lok Sabha (2009), whereas this number was 128 in the earlier Lok Sabha (2004). While estimates differ depending on which economist one consults, the proportion of people who are below the poverty line (which is around Rs.12 per day) is said to be between 37.2 and 77 per cent. If we combine it with the fact that almost two-third of the members of the current Lok Sabha (2009) have been elected with more votes cast against them than for them, reasonable, if not serious, doubts arise about the representational legitimacy of such members.

Given the above characteristics, how does one expect the vote in Parliament to go? Expecting parliamentarians to vote against their personal and party interests, in the so-called national interest, seems highly over-optimistic and idealistic. We do not live in an ideal world; we live in a practical and real world. And this is what creates a national conflict of interest.

Two options

Is there a way out? There has to be, else we, as a nation, would be doomed to sink deeper and deeper into the morass created by the all-pervasive corruption, large and small. There seem to be only two options. One is an opportunity for the elected representatives, however questionable their representative legitimacy be, to regain lost ground and establish their legitimacy by giving primacy to the national interest by voting in a strong and effective Lokpal Bill, even independent of and combining the best of both, the JLB and the GLB.

If that does not happen, then possibly the Rubicon would have been crossed. There may then be no alternative but to ascertain the opinion of "We, the People" by way of a referendum for which we do not have a provision…yet. But then, don't extraordinary situations require extraordinary responses?

— Jagdeep S. Chhokar

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