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Extreme problems don’t always need extreme solutions

JAN LOKPAL CAMPAIGN

JAN LOKPAL CAMPAIGN

THE EDITORIAL PUBLISHED IN THE TIMES OF INDIA

 The Anna Hazare-led civil society movement cannot be faulted for having come up with its version of the Lokpal Bill, because otherwise it would have been accused of campaigning for something essentially negative – the withdrawal of the flawed government version without putting forward an alternative. Frustration with everyday corruption – as well as the spectacular kind that explodes in the public sphere ever so often ( Commonwealth Games, 2G, Adarsh, illegal mining in Bellary district etc) – explains the widespread popular support received by the anti-corruption movement.

The depth of this support, coming from every corner of the country, should tell the government something. While the value of the movement lies in having highlighted the critically important issue of corruption – which has not been dealt with seriously by successive governments – the Jan Lokpal Bill put forward by Team Anna too is flawed in some of its specifics.

If the government Bill is minimalist, setting up a toothless ombudsman with limited powers, the Jan Lokpal is too overarching in its design and could topple under its own weight. It is somewhat contradictory in its approach, in that it envisions a superior layer of bureaucracy to fix bureaucratic corruption. If the government version of the Lokpal Bill can be likened to a cop with a lathi confronting an AK-47 wielding terrorist, the Jan Lokpal could be the equivalent of the trigger-happy supercop mowing down innocent citizens in his rage to establish order.

A third version of the Lokpal Bill, formulated by Aruna Roy and the National Campaign for Peoples’ Right to Information (NCPRI), is superior to both the government version and the Jan Lokpal Bill. We are in sympathy with its broad philosophy, which is to have a series of interlocking bodies which will act as a check on each other rather than a centralised, overarching Lokpal which supervises everything. The way to check corruption is through an architecture of mutually supportive legislation, rather than through a single Bill which is required to deliver a magic bullet. This vision is best embodied in the NCPRI design.

The biggest flaw in the government version is that it excludes many categories of public servants from its ambit – anyone below grade A in the central government, state-level civil servants, the judiciary, the PM while he is in office. Moreover the dice is loaded in favour of the accused, which would make it extremely difficult to bring powerful people to justice and therefore defeat the purpose of the Bill.

For example, while there is no provision to protect whistleblowers, the Bill provides for all incriminating evidence to be made available to the accused even before the registration of an FIR. Moreover, the tough punishment provided for the subjectively determined ‘frivolous’ or ‘vexatious’ complaint (two to five years imprisonment) would deter most victims of corruption from lodging a complaint.

The Jan Lokpal Bill corrects for flaws in the government version by including everybody under the ambit of the Lokpal. Besides corruption cases, the Lokpal is asked to look into grievance redressal as well. This leaves it with the unenviable task of policing some four million employees of the central government alone, among many other categories.

Like our present court system, the Jan Lokpal could simply get buried under a backlog of cases. Moreover, too much power would be concentrated in the Jan Lokpal. Complaints against it may be lodged in the courts. But since the judiciary itself will be under the Jan Lokpal, that would have a chilling effect on any judgments against it.

For anti-corruption laws to work, the remit of anti-corruption bodies must be specific and focussed. To have a manageable task on its hands, the Lokpal should focus on corruption cases involving MPs, ministers and senior officers in the central government. If corrupt officers at grade A level are punished, the message is bound to percolate downwards. Besides, there can be other agencies to check corruption at other levels (more about this soon).

For the same reasons the Lokpal should confine itself to cases where public servants are involved, and not stray into cases of NGO or corporate fraud. The government Lokpal envisages harsh penalties for NGOs, the Jan Lokpal and NCPRI versions do the same for corporates. But the job of public servants is to regulate the working of civil society institutions. If public servants were honest and only some corporates and NGOs were corrupt, we wouldn’t have so much of a problem as the government can throw the book at the latter using a whole gamut of legal instruments: the Companies Act, the Prevention of Corruption Act, IPC provisions which deal with bribery and corruption, income tax laws, the Foreign Contribution (Regulation) Act and so on.

The real problem arises when the regulators themselves, ie public servants, are corrupt. Anti-corruption laws will work if we keep the architecture simple, without diversionary red herrings – the government polices civil society, Lokpal polices the government.

Who polices the Lokpal? It could be the Supreme Court, which would entail keeping the higher judiciary outside the purview of the Lokpal. The NCPRI suggests strengthening the Judicial Standards and Accountability Bill as a check on judicial corruption. But a superior solution is to have a National Judicial Commission (NJC), which would look at judicial appointments as well.

If the quality of judges in the Supreme Court and high courts could be regulated at entry, that would be a more holistic way of dealing with corruption. To widen the scope of discussion on judicial practices, the NJC should incorporate a balanced mix of non-judicial members as well (the relevant authority in the current Judicial Bill can induct only judges and members of the legal profession). It may require a constitutional amendment to set up the NJC, but the government could commit to bring in such an amendment within a year.

As for dealing with corruption at other tiers of public service, the NCPRI makes sound suggestions. A strengthened Central Vigilance Commission (CVC) can look at corruption among civil servants below grade A level. State Lokayuktas should be appointed to rein in corruption at the state level.

While a serving prime minister should be under the aegis of the Lokpal, strong safeguards are needed to ensure he is not unduly harassed in conducting the work of government. A full bench of the Supreme Court should be convinced there is a prima facie case and clear the investigation, vicarious liability (due to misconduct of other ministers) shouldn’t be considered, national security matters should be kept outside the purview of the Lokpal.

There is need for a strong Bill to protect whistleblowers. Another one should set up a grie-vance redressal commission, to look into redress of grievances not amounting to corruption. Finally, it’s important to remember that corruption cannot be controlled through punitive steps alone. Side by side, we need to reform the system to reduce incentives for corruption. For that we need to look carefully at policies and processes through which scarce resources such as land, spectrum and minerals are allocated. We also need to look at how elections are funded. High stamp duties, for example, incentivise the undervaluing of property and therefore the setting up of a black economy. Heavily distorted land markets make the rise of a land mafia inevitable. Rs 40 lakh as the legally designated upper limit for electoral spending by a Lok Sabha candidate is ridiculously low and impractical, inviting evasion by successful candidates.

Perhaps, instead of a mechanical cap on spending we need to put in place a full disclosure requirement, whereby every candidate is obliged to place on record all campaign contributions received beyond a prescribed minimum level. For insights into how reforming the system (as opposed to punitive measures alone) could reduce incentives for corruption, watch this space tomorrow for an article on the subject by Arvind Panagariya.

Tackling graft: The many drafts

Whom should the Lokpal cover?
GoI Lokpal draft: Includes NGOs in the Lokpal’s ambit
Jan Lokpal draft : Includes corporates in its purview
NCPRI draft: Includes corporates within its radar

Times View: The Lokpal must focus on graft in government. Existing laws should be strongly applied to corrupt practices in civil society but the Lokpal must focus on corruption within government.

The higher judiciary

GoI Lokpal draft: Excludes the higher judiciary from the Lokpal’s purview
Jan Lokpal draft: Includes the higher judiciary within the Lokpal’s purview
NCPRI draft: Excludes the higher judiciary from the Lokpal’s ambit – it instead proposes a stronger Judicial Standards and Accountability Bill for tackling issues of corruption in the judiciary

Times View: The judiciary must be free to survey the Lokpal itself. The judiciary can be managed via a National Judicial Commission – that’s better than just a Judicial Accountability Bill as it surveys graft and legal appointments and is open to non-legal members too

Covering the PM

GoI Lokpal draft: The PM is under the Lokpal’s purview – but only after leaving office
Jan Lokpal draft: The PM is fully included while in office
NCPRI draft: The PM is included during office – with proper safeguards

Times View: The PM should be included – with due checks. The NCPRI draft provides good safeguards (due process, no vicarious liability and confidentiality on matters of national interest)

The bureaucracy

GoI Lokpal draft: Only includes Group A officers under the Lokpal’s purview
Jan Lokpal draft: Includes all government servants
NCPRI draft: Envisions all government officers outside Group A to be surveyed by a stronger CVC’s office

Times View: The Lokpal must focus on corruption in high places. Putting all government officials under it is over-burdening it. A stronger CVC and state-level Lokayuktas should oversee all officers outside senior level

Public grievance redressal

GoI Lokpal draft: Makes no provisions for public grievances or their redressal
Jan Lokpal draft: Includes public grievances and redressal at all levels under the Lokpal
NCPRI draft: Envisions a separate commission specifically to hear public grievances and manage redressal

Times View: The Lokpal is a unique institution designed to weed out corruption in government. As the NCPRI draft suggests, public grievances over a range of issues should be routed to another body that can make enquiries at diverse levels and make effective, hard-hitting changes where needed

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Jan Lokpal Bill and Parliament

Social activist Anna Hazare having a word with his team members Prashant Bhushan and Shanti Bhushan during the fast for Jan Lokpal Bill at Ramlila Maidan in New Delhi.

Social activist Anna Hazare having a word with his team members Prashant Bhushan and Shanti Bhushan during the fast for Jan Lokpal Bill at Ramlila Maidan in New Delhi.

SHANTI BHUSHAN IN THE HINDU

Is the Bill within the legislative competence of Parliament? Yes.

All provisions in Anna Hazare‘s Jan Lokpal Bill are within the legislative competence of Parliament, including the provisions relating to Lokayuktas in the States. Some confusion is being spread in the media that Parliament cannot enact all the provisions of the Jan Lokpal Bill, particularly those relating to the Lokayuktas in the States, a law for which will have to be enacted by the State Legislatures themselves. Any constitutional jurist would confirm that there is no substance in this impression and that Parliament is fully competent to enact all the provisions of the Jan Lokpal Bill.

Parliament can enact any law if the “pith and substance” of that law is covered by any entry in the Union List or any entry in the Concurrent List. Entry 97 of the Union List is as follows: “Any other matter not enumerated in list 2 or list 3 including any tax not mentioned in either of those lists.”

The effect of this is that unless the pith and substance of the Jan Lokpal Bill falls squarely under any of the entries in the State List, Parliament cannot be denied the legislative competence to enact the provisions of the Jan Lokpal Bill. Even a student of law would tell you that the pith and substance of the Jan Lokpal Bill does not fall under any entry in the State list.

One of the entries in the Union List is entry No.14: “entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries.” Article 253 provides that “Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.” The effect of Article 253 is that even if the pith and substance of an Act is squarely covered by an entry in the State List, even then if the enactment is for implementing a U.N. Convention, Parliament would still be competent to enact the legislation.

As the statement of objects and reasons of the Jan Lokpal Bill would show, the object of the Jan Lokpal Bill is to implement the United Nations Convention on Corruption, which has already been ratified by India (http://www.unodc.org/unodc/en/treaties/CAC/index.html).

The definition of “public official” in the U.N. Convention includes any person holding a legislative, executive, administrative, or judicial office, whether appointed or elected. This is quite similar to the definition of “public servant” in the Prevention of Corruption Act, 1988, enacted by India’s Parliament, which covers all Ministers including the Prime Minister, all judges of the High Court and the Supreme Court as well as all elected Members of Parliament and State Legislatures. Incidentally, it may be mentioned that the Prevention of Corruption Act was enacted by Parliament and not by any State Legislature, even though it is applicable not only to Central government servants but also to servants of the State governments. The main object of the Jan Lokpal Bill is to set up an independent authority as required by the U.N. Convention to investigate offences of corruption by all public servants covered by the Prevention of Corruption Act, 1988.

Entry 1 of the Concurrent List refers to criminal law, including all matters included in the Indian Penal Code. As bribery and corruption were covered by the Indian Penal Code, Parliament had full competence to enact the Prevention of Corruption Act.

Entry 2 of the Concurrent List relates to criminal procedure, including all matters included in the Code of Criminal Procedure. Since the investigation of bribery and corruption was included in the Code of Criminal Procedure, Parliament is fully competent to enact a law to provide for alternative methods of investigation of offences under the Prevention of Corruption Act.

Article 8 (2) of the U.N. Convention requires each state that is a party to the Convention to apply, within its own institutional and legal systems, codes or standards of conduct for the correct, honourable, and proper performance of public functions.

Article 8 (5) further requires the states to establish systems requiring public officials to make declarations regarding their outside activities, employment, investments, assets, and substantial gifts or benefits from which a conflict of interest may result with respect to their functions as public officials.

Article 8 (6) further requires the states to take disciplinary or other measures against public officials who violate the codes or standards established in accordance with the convention.

Article 12 (2) requires the taking of measures for preventing the misuse of procedures regulating private entities, including procedures regarding subsidies and licences granted by public authorities for commercial activities. It further requires the imposition of restrictions for a reasonable period of time on the professional activities of former public officials after their resignation or retirement, where such activities of employment relate directly to the functions held or supervised by those public officials during their tenure.

Article 34 of the Convention requires the states to consider corruption a relevant factor in legal proceedings to annul or rescind a contract, withdraw a concession or other similar instrument, or take any other remedial action. It would be crystal clear to any constitutional jurist that even if the Jan Lokpal Bill had not been for the purpose of implementing the U.N. Convention, all its provisions would be squarely covered by the Union List and the Concurrent List.

While one can understand the anxiety of political parties to somehow attempt to dilute the provisions of the Jan Lokpal Bill by reducing its coverage or to weaken it, they owe it to the people of India not to mislead the gullible people that Parliament is not competent to enact the provisions contained in Anna Hazare’s Jan Lokpal Bill. Even the claim that at the least the States are required to be consulted has no basis at all. The Constitution-makers had foreseen that in a federal or quasi-federal country, the States’ views had to be taken into consideration by Parliament when enacting a law. They had, therefore, provided for the Council of States and a Bill cannot be enacted by Parliament unless it is passed both in the Lok Sabha and the Rajya Sabha. The constitution of the Rajya Sabha provides that each State elects its representatives to this House. Thus all States are represented in the Rajya Sabha. The MPs in the Rajya Sabha are there to represent the views of the states on any Bill that comes before it and there is thus an inbuilt mechanism in the Constitution itself to provide for taking into consideration the views of the States on a Bill that is being enacted by Parliament.

(Shanti Bhushan, a constitutional expert, is a former Union Law Minister and member of the Joint Drafting Committee on the Lokpal Bill.)

Source: http://www.thehindu.com/opinion/lead/article2430078.ece?homepage=true

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