LAW RESOURCE INDIA

Jan Lokpal bill: addressing concerns

Posted in CONSTITUTION, CORRUPTION by NNLRJ INDIA on April 15, 2011
Indian Parliament Building Delhi India

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Prashant Bhushan in THE HINDU

The draft bill seeks to create an institution that will be independent of those it seeks to police, and will have powers to investigate and prosecute all public servants, and others found guilty of corrupting them.

A number of commentators have raised issues about the provisions in the draft of the Jan Lokpal Bill. They have asked whether it would be an effective instrument to check corruption. They have pointed to the manner in which Anna Hazare‘s fast put pressure on the government. It is therefore important to understand the provisions of the bill and how it seeks to set up an effective institution to deal with corruption.

Corruption in India has grown to alarming proportions because of policies that have created enormous incentives for its proliferation, coupled with the lack of an effective institution that can investigate and prosecute the corrupt. Under the garb of liberalisation and privatisation, India has adopted policies by which natural resources and public assets (mineral resources, oil and gas, land, spectrum, and so on) have been allowed to be privatised without transparency or a process of public auctioning. Almost overnight, hundreds of memorandums of understanding (MoUs) have been signed by governments with private corporations, leasing out large tracts of land rich in mineral resources, forests and water. These allow the corporations to take away and sell the resources by paying the government a royalty, which is usually less than 1 per cent of the value of the resources.

The Karnataka Lokayukta, Justice Santosh Hegde, has pointed out in a report on mining in Karnataka that the profit margins in such ventures are often more than 90 per cent. This leaves huge scope for bribe-giving and creates incentives for corruption. The same thing happened when A. Raja gave away spectrum without a public auction to companies at less than 10 per cent of its market price. Private monopolies in water and electricity distribution, airport development and so on have been allowed to be created, where huge and unconscionable levels of profit can be made by corrupting the regulator and allowing private monopolies to charge predatory prices. Tens of thousands of hectares have been given away to corporations for commercialisation in the guise of airport development, construction of highways, creation of Special Economic Zones and so on, at prices that are less than 10 per cent of the value of those tracts of land.

Apart from creating huge incentives for corruption, such policies have resulted in the involuntary displacement of lakhs of the poorest people, leaving them on the brink of starvation and forcing many of them to join the Maoists. The beneficiaries have stripped the land of natural resources (a good deal of which is exported) and destroyed the environment. Most ominously, such deals have resulted in the creation of monster corporations that are so powerful and influential that they have come to influence and virtually control all institutions of power — as we see from the Radia tapes.

While adopting policies that thus create huge incentives for corruption, we have not set up effective institutions to check corruption, investigate and prosecute the corrupt and bring them to justice. The Central Bureau of Investigation (CBI) continues to be under the administrative control of the government, which is seen as the fountainhead of corruption. Thus, no action is usually taken by the CBI to effectively investigate high-level corruption — except once in a while when the court forces its hand. Often we see the CBI itself behaving in a corrupt manner, with no other institution to investigate that. The Central Vigilance Commission (CVC), which is supposed to supervise the CBI, has failed to act, since its own appointment process is riddled with conflicts of interest. The Prime Minister, the Home Minister and the Leader of the Opposition (who has been a Minister and hopes to become Prime Minister one day) want to avoid their own accountability and are thus interested in having weak and pliable persons to man the institution that is expected to supervise the CBI. Moreover, the CVC and the CBI have to seek the government’s sanction to investigate and prosecute wrongdoers; such sanction is usually not given when it comes to high-level corruption. The CVC depends on vigilance officers in various government departments. They are often middle-level officers from the same departments and cannot be expected to exercise vigilance over their bosses who write their confidential reports. The judiciary, which must try and convict the offenders, has become dysfunctional and is afflicted with corruption due to lack of accountability of the higher judiciary.

The draft Jan Lokpal bill seeks to create an institution that will be largely independent of those it seeks to police, and which will have effective powers to investigate and prosecute all public servants (including Ministers, MPs, bureaucrats, judges and so on) and others found guilty of corrupting them. Since corruption involves misconduct and gives rise to grievances, the draft proposes that the Lokpal will supervise the machinery to pursue disciplinary proceedings against government servants (the Vigilance Department) as well as the machinery to redress grievances. Thus, misconduct by government servants, and grievances, will come under the ambit of an independent authority rather than the government — where the machinery has become ineffective due to conflicts of interest. It is proposed that if the Lokpal finds that a contract is being given for corrupt considerations, it can stop the contract. It cannot otherwise interfere with government decisions or policy.

It has been said that this would create a super-cop with enormous powers and no accountability. There is a misconception that the proposed Lokpal will have judicial powers; there is no such provision in the bill. The need of the hour is to have an effective cop who can investigate and prosecute the high and mighty without interdiction from the very people who need to be prosecuted.

The bill seeks to make the Lokpal accountable. First, it is mandated to function transparently so that everything related to its functioning is known to the people (without compromising the investigation itself). Exemptions from disclosure provided in the Right to Information Act could be included. Secondly, the Lokpal’s orders will be subject to review in the High Courts and the Supreme Court. Lastly, the members of the Lokpal could be removed for misconduct, by a five-member bench of the Supreme Court.

There has been some criticism of the Lokpal selection committee and the selection process. Given the erosion in the integrity of most of our state institutions, it was thought that the best bet would be to have a broad-based selection committee and build transparency and public participation into the selection process, while trying to keep out those who are most likely to be within the ambit of the Lokpal’s investigations. That is why in the draft bill Ministers were sought to be kept out.

One criticism has been that this shows contempt for democracy. We have seen how the “democratically elected” Prime Minister, Home Minister and leaders of the opposition have normally selected weak and pliable CVCs. So the draft bill proposes a selection committee comprising the Lok Sabha Speaker, the Rajya Sabha Chairman, the Comptroller and Auditor General, the Chief Election Commissioner, the two seniormost judges of the Supreme Court, two seniormost Chief Justices of High Courts, the Chairman of the National Human Rights Commission and the outgoing members of the Lokpal. This proposed composition of the committee will certainly be discussed, and perhaps improved upon, during public consultations and discussions within the drafting committee that will now take place.

It has been said that putting the function of redress of grievances on the plate of the Lokpal would make its work unmanageable. Though the Lokpal will only reorganise and supervise the grievance redress machinery (rather than dealing with each grievance itself), this is an issue that will be discussed openly by the committee. By next week, a website that will formally take in all the opinions and suggestions on the Jan Lokpal bill will be launched and announced. People are welcome to read, understand and send their comments on it, to be taken note of.

One must not, however, be under any illusion that the Lokpal law by itself would solve the problem of corruption. Unless we tackle and change the policies that create enormous incentives for corruption and monster corporations that become too powerful for any institution to control, the fight will be incomplete. The judiciary too is in need of comprehensive reforms.

But an independent, credible and empowered Lokpal is a necessary, though not a sufficient, condition to effectively control corruption. Let us work at least to put that in place.

(Prashant Bhushan is a senior Supreme Court lawyer and member of the joint committee to draft the Lokpal bill.)

7 Responses

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  1. TAPAN SEN GUPTA said, on April 15, 2011 at 20:39

    it will be milestone for the citizen of India when the Jan Lokpal Bill will be first introduced in India as a whole. Many Jan Lokpal activists are waiting to eliminate the corruption level from all front of society. we are egarly waiting for its introduction as early as posible. I think the corrupted officials of the govt. department are thinking to retaliate the jan lokpal bill which will be their main enemy in their front.

  2. Eric said, on April 25, 2011 at 12:25

    Civil Society against Corruption

    Subject: The Janlokpal bill- the harassment bribes

    A number of articles have appeared in the news papers, mainly trying to tarnish the image of the middle class Indians who recently took active part in the Anna Hazare movement against corruption. The political class and the bureaucrats were caught up in the swift spread of this civil society movement the likes of which they had never witnessed. We need to give credit to the Prime Minister Mr. Manmohan Singh and the congress president Mrs. Sonia Gandhi to have recognized the anger of the average Indian against corruption and a need for a suitable Lokpal bill with some teeth to be effective. No doubt the political class will try ensure the teeth are as small as possible.

    However the attack on the middle class by vested interest to the extent that they have called them the cause of corruption and not the victims of the same, is targeted to break the movement. Some authors have even called the middle class double faced. They have demanded that the middle class first of all refuse to pay what are termed as harassment bribes to even obtain services, one is entitled to without delays.

    What the authors of these articles have failed to realize is that the anger of the middle class is in fact due to them having to compromise their values they have brought up with and start paying bribes to overcome the harassment of obtaining the various simple services from the Government, which they are entitled to without undue delays. The middle class Indians have realized with experience, that they will be denied or inordinately delayed these simple services, if the bribes are not paid upfront. If they have to complain before paying the bribe, in most cases the person they have to complain to is the boss who is in the loop. Most probably in such cases the harassment and delays will increase.

    If the complaint is made after paying the bribe and obtaining the services, as per the present law of prevention of corruption, they will have to face prosecution and penalties. Besides they will be forced to go through long court proceedings. Hence the middle class who have very little time to even carry out their jobs and earn a decent living, have very little option than to pay the upfront bribe. A few years ago I heard Mr. Chidambaram who was then the finance minister state that no one in India including Mr. Mukesh Ambani wants to pay to the Govenment taxes. This is not true as long as the taxes are reasonable and well utilized. In a similar way no Indian would like to pay a bribe to receive services that they are entitled to from the Government.

    Besides corruption is caused by the authorities keeping the supplies short and the rules against which they are provided opaque. All rules are made providing discretionary powers in the hands of the service provider. Even demands for the conditions and rules against which the supplies and services are provided to be put on website, is being deliberately ignored.

    The least Government of India can do as part of the lokpal bill is to try and reduce the incidence what is termed as harassment bribes. The paper that has been recently put out by Mr. Kaushik Basu on the subject, clearly provides what can be done to drastically reduce the harassment bribes. Since it has been suggested by an eminent economist who has studied for years the effects of such bribery on the economy, the Lokpal drafting committee should take up his views seriously.

    The draft of the janlokpal bill does not provide the required immunity and protection to the whistle blower making the complaint, after having paid the bribe to receive the services that he is entitled to. This needs to be corrected at least in cases of harassment bribe. Things will change to great extent for the common man if Government of India encourages people to become whistle blowers in case of harassment bribes even after paying the bribe. There could be an upper limit placed on the harassment bribes. The lokpal could also list what it considers as harassment bribes. As the whistle blowers identity will be kept secret and there would be no prosecution for making such bribes, one could expect lot of complaints since harrasment bribes are generally relatively small in amounts but whide spread A special cell could be set up under the Lokpal to receive such harassment complaints in writing, e-mails or faxes where the identity of the whistle blower could be checked, verified but kept secret.

    The problem of checks and balances are easy incase of harassment bribes as they are the ones which effect most Indians and could be discreetly verified by the Lokpal and action taken only after a number of complains are received by the Lokpal and the verification clearly proves the complaints are authentic. In most such cases the bribe taker could be actually caught in the action. Once a few prosecutions are made , the I’ll gotten money confiscated and the cases published, the incidence of harassment bribes are bound to comedown rapidly.

    Even if arrangements are made by the Government service giver to receive the bribe through a third party, once the complaints are received it will not be difficult to keep a close watch on the interaction between the two persons who have entered into such an agreement to receive the bribes and take action.

    The harassment bribes can be categorized as ones that are paid by the citizen to the Government servant and not the ones that are paid by companies and contractors to obtain lucrative contracts from the Government. Once these are decided thee same, they will have to be put up on the Government departments websites and noticeboards so that the public are aware of their rights.

    What is also required is for special courts to be set up to handle corruption cases or provisions made to fast track the cases through the courts. The justice should be quick and not allowed to be dragged on for decades as happened in the past. Ill-gotten wealth should not remain in the hands of the family of the corrupt Govt. Servant or politician.

    The new Lokpal bill should take the above into consideration while drafting.

    Let us hope the Janlokpal bill does not get derailed and get passed by the Parliament with the required teeth.

    E .J. D’Sa

  3. Eric said, on April 25, 2011 at 12:26

    To the Lokpal drafting committee

    Most the corruption that is faced by the general public is what are termed as harassment bribes. Unless the Lokpal bill addresses reduction in the above bribes the people of India will never consider that the Lokpal bill has achieved anything in significance. At the same time it is not very difficult to tackle these kind of bribes as the persons who take these kind of bribes take them on regular bases from many people and since part of such bribes are passed on to their bosses they take the bribes without any scare of being caught and punished. Hence the bribes are taken openly and from many.

    At the same time the persons that take the bribes are lower rung of the Government servants who are mortally scared to loose a Government job. As soon as the Lokpal takes action against a few such cases there is bound to be big drop in the incidence in the harassment bribes.

    There is a view that once the law is passed that arrangements will be made by the Government servants to route the bribes through agents who will collect the bribes. But as the agents will also be exposed to the law and will be the type that will be easily nabbed this will not be such a big problem.

    The important thing is to provide some kind of immunity to the persons who have paid the harassment bribes but later become a whistle blowers. This will encourage a number of victims of such bribes to make official complaints in writing. The Lokpal need not immediately act on such complaints unless there are many similar complaints and in most cases the corrupt person could easily be trapped after proper inquiries are made of the complaints. Since the persons who take harassment bribes are only prosecuted after being actually caught in the act the need for the whistle blowers to be present in the courts will not arise.

    The further argument that the Governments servants will be susceptible to be black mailed should be taken with a pinch of salt, as most people are decent and do not gain any monetary benefit from making frivolous complaints against a person they hardly know. It takes time and effort to make written complaints which a Lokpal will verify if necessary calling on the person.

    As the Government of Indias main concern would be reduction in the low harassment bribes an upper limit of Rs. 1,00,000/ be set to provide the immunity to bribe giver from being prosecuted under the prevention of corruption act or any similar act.

    Keeping the above points in consideration it is suggested that the following changes are made in the draft of the Janlokpal bill.

  4. Eric said, on April 25, 2011 at 12:26

    2. Definitions

    (4) Corruption. Add

    provided that any person that has paid a harassment bribe to obtain any benefit from the Government, but has then turned into a whistle blower, shall not be deemed to have indulged in corruption, as long as the harassment bribe paid is under Rs. 1,00,000/-

    (14) Whistle blower. Add

    (4) a person who may have paid a harassment bribe below Rs.1,00,000/- to obtain services from the Government, but has become a whistle blower.

  5. S.C.Maria Leo said, on June 17, 2011 at 17:17

    It is interesting and educative on the movement against corruption which is a dream of right thinking citizen of this nation. It is rightly pointed out that there is no effective working by agencies who are supposed to work on the subject and could bring certain fear in the minds of wrong doers. The necessity for the implementation of Lokpal is well explained. I wish every success to the Team which has set its target for tireless working to see that a meaningful Lokpal is implemented.

  6. S.C.Maria Leo said, on June 17, 2011 at 17:22

    +

  7. Bangalore NGO List said, on September 17, 2012 at 17:41

    It’s truly a great and helpful piece of info. I’m satisfied that you simply shared this helpful info with us. Please stay us informed like this. Thank you for sharing.


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