We want a lean, mean Lokpal: Abhishek Singhvi

The Chairman of the Parliamentary Standing Committee on the Lokpal Bill, on corruption and the most pragmatic ways to check it.

Rajya Sabha MP and Congress spokesperson Abhishek Singhvi chaired the 30-member parliamentary panel that presented its voluminous report earlier this month on the Lokpal Bill 2011. The report has points of divergence with both the official Lokpal Bill draft and the Team Anna version. (The Union Cabinet on Tuesday night approved a Bill for the creation of the Lokpal with constitutional status that will have no control over the CBI but brings within its purview the Prime Minister with a number of safeguards.) Excerpts from an interview with Mukund Padmanabhan, held earlier in the day.

At the heart of the upsurge of public anger against corruption, which a strong Lokpal Bill has come to symbolise, is a basic truth. Namely, that our criminal justice system, particularly when it comes to corruption, is constantly subverted by political interference in the work of investigation and prosecution agencies. Do you agree?

I agree with the sentiment but not with the way you put it. I think you are entirely right in that there is a great amount of legitimate frustration about the criminal justice system, the sloth and the inefficiency.

I will not deny political interference. But I believe that its statistical occurrence is highly exaggerated. Also, at least during the last five years of transparency and media scrutiny, it is not that easy for the CBI and the police forces to convert black into white. Lastly, the attempts at political interference may be greater than the actual results because there is a great amount of both judicial and media scrutiny.

So in other words, judicial delay is a bigger problem than the lack of an independent investigation and prosecution mechanism?

Far bigger. The second is definitely there, but exaggerated.

Your preface in the standing committee report on the Lokpal Bill presented to the Rajya Sabha strikes a philosophical note. You state that the Lokpal Bill resides in the limited ex-post facto punitive sphere and is no substitute for significant “prophylactic” initiatives. It’s impossible to disagree with this, but it raises the obvious question: what have we been doing about preventive mechanisms all this while?

Progress has been made but it has been slow. But during the last year and a half, the progress on corruption — including prophylactic measures — has been remarkable. Unfortunately, in the debate on the Lokpal, which is a very important punitive measure, the prophylactic and policy initiatives have got lost. As I said in my report, sometimes policy is more important than law.

Allow me to list you some of the steps taken. Roughly 62 bilaterals and 20 further one-to-one treaties [have been signed] in the last two years on black money. It now means that there are 80-odd countries around the world that are obliged to give you information on this. The Whistleblowers’ Bill, a recommendation of our standing committee, will come [before Parliament] very shortly. The Citizens’ Charter Bill will possibly be introduced with the Lokpal Bill or in the next session.

The report of the Ashok Chawla Committee [set up to recommend how government allocates key natural resources] has made specific suggestions. According to me, there are three areas — realty, mining, discretionary powers. There is a listing of all the discretionary powers at the Central-government-level in each department, many of which can be abolished. This itself will make a huge difference. On mining, we are on the threshold of a brand new law; the existing mining law is antiquated and breeds corruption. As for real estate, both the Land Acquisition Bill and other policy initiatives on black money will make a lot of difference. These initiatives will have an effect if they are applied synergistically and given at least two years to operate.

Coming back to the Lokpal, there were sharp divisions in the parliamentary panel you headed on key issues. At the same time, you suggested that the dissent was minimal and there was a considerable amount of unity on a range of issues. In what areas do you think the standing committee made advances vis-à-vis the earlier draft of the Lokpal Bill?

This is a very important question. This report is nowhere like a government draft. Chalk and cheese, earth and sky — that is the difference. Our approach has been not merely to look at the Lokpal Bill draft, or the Jan Lokpal draft or the Aruna Roy draft.

Ours has been to see that the overall structure is workable, valid and efficacious. We believe that in many areas the Jan Lokpal is too starry-eyed and idealistic, and not workable. In some areas, we believe the government draft is retrogressive.

So we have struck a new course. Consider the dissent, which there has been a lot of misinformation about. This was not a normal committee report. It was unusual because in two-and-a-half months, it decided on 23 issues, not just one or two like most committees. Of the 23, there was absolute unanimity on 12 issues. Of the remaining 11, in three issues there was a majority of 29 and only one dissenting voice. On another six, there were 22 for and eight dissents. There was real dissent only on two issues — the CBI (20 to 10) and the inclusion of the lower bureaucracy (17 to 13).

But going by Team Anna and the attention they receive in the media, aren’t these issues the nub? And on the question of including the Prime Minister under the Lokpal, the standing committee left this to Parliament…

Sorry, but there is no dissent there. I could have given the majority view which was for inclusion with deferred prosecution. I was excessively reasonable in putting forward three [divergent] views, all of which had resonance.

Team Anna alleged that by leaving the Citizens’ Charter and the lower bureaucracy out, you had disrespected Parliament and violated the Sense of the House resolution passed in August.

This is a complete misunderstanding. Look at what the Finance Minister said in his reply to the debate in Parliament, which is quoted in the report. He said, “This House agrees in principle on the Citizens Charter, Lower Bureaucracy to be brought under Lokpal through appropriate mechanism and establishment of Lok Ayuktas in the States.” What this suggests is that we must pass a law on the Citizens’ Charter, which we are doing. As for the Lok Ayuktas, we have recommended a common Lokpal-Lok Ayukta Bill, something that goes against the government draft. Being under the Lokpal only applies to the lower bureaucracy. But look at the resolution closely. It says the lower bureaucracy must be brought under the Lokpal through an “appropriate mechanism”…

…Which you imply you have addressed by making the Central Vigilance Commission, which will cover the ‘C’ and ‘D’ level employees, accountable in a way to the Lokpal?

Yes, there is a method to the madness. We don’t want a top-heavy Lokpal set up. We want it to be lean, mean and efficient. To prevent a new organisation from becoming top heavy, if you utilise the CVC, which for the first time will have ‘C’ class employees under it, aren’t we improving the situation? The CVC will then be obliged to file two or three monthly reports to the Lokpal, which will then issue advisories on the basis of this.

The standing committee has recommended both Group ‘A’ and ‘B’ officials come under the Lokpal, unlike the government draft which included only ‘A’. We made a huge jump — this is being forgotten in the controversy. From ‘A’ to ‘B’, the group comprises everyone down from Prime Minister to Section Officer.

Wasn’t the Lokpal conceived as a new mechanism to deal with medium-ticket and big-ticket corruption? Or was it to go below level ‘C’ and include drivers, clerks and peons?

I am not suggesting that drivers and peons are not corrupt. But the Section Officer is the first to write an opinion on the file. From there on it goes upwards. We have said that the ‘C’ group which was not covered until now should come under the CVC. What wrong have we done? They speak as if we have cheated the nation.

There is also a certain amount of misinformation circulating regarding the CBI and investigation. The report deals entirely with Lokpal-referred investigations. The suggestions in it regarding preliminary inquiry, abolition of sanction, separation of investigation and prosecution et cetera are all recommendations made in the context of Lokpal-referred investigation.

It does not seek to deal with a large number of other cases dealt with by the CBI, including murders or those referred to the agency by the higher judiciary.

Isn’t it odd that a legislation to check corruption in government should include NGOs, corporates and the media? This seems a little like tit-for-tat. The NGOs and the media wanted strong legislation against official corruption, so lets put them into the net as well.

This is not true. We have included only NGOs, companies, associations, trusts owned or controlled by the government or those that receive large public donations. The other test is whether they receive donations above a certain amount under the Foreign Contribution Regulation Act. There are figures to show the volume of foreign funding is enormous and the accountability of this is very limited.

And this is necessary? Wouldn’t it dilute the work of a lean, mean Lokpal?

This is necessary because you are dealing with corruption. Today, corruption is accountability. Look at the United Kingdom Bribery Act, a remarkable piece of legislation, which applies to literally everybody — the public and private sectors, U.K. firms acting abroad, non-U.K. citizens acting in the U.K. We have said we need a model like this in tackling bribery. You can’t draw artificial Chinese walls when it comes to a particular sector.

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JAN LOKPAL BILL

JAN LOKPAL BILL

V. VENKATESAN IN THE FRONTLINE

In its effort to recommend an effective Lokpal Bill, the Standing Committee has to consider all the nuances of the views of civil society.

THE 31 members of the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, drawn from the Lok Sabha and the Rajya Sabha, have an onerous task on hand as they begin to scrutinise the Lokpal Bill. They cannot discuss the government’s Bill oblivious to the anti-corruption movement led by Anna Hazare, which resulted in extraordinary debates and an identical sense-of-the-House agreement in both Houses of Parliament on August 27.

The committee’s Chairman, Abhishek Manu Singhvi, a Congress MP and a senior advocate in the Supreme Court, has promised several surprises in its recommendations on the Bill and is of the view that 80 per cent of the Bill will be changed after the committee submits its report before the winter session of Parliament begins.

This is the first time that members of the Standing Committee will be discussing the provisions of a government’s Bill on the basis of a sense-of-the-House agreement, which is a rare expression of the collective will of the House on a piece of legislation and is a corrective measure. In a sense, it amounts to an admission by all the parties in Parliament that they failed to read the public opinion at the time of introduction of the government’s Bill and therefore they want to ensure that the committee considers the key concerns expressed by the public over the Bill’s omissions.

It is possible that the committee will, in any case, be apprised of these concerns during its two-month-long interaction with the public, seeking comments and suggestions and hearing testimonies from select representatives of civil society and other stakeholders. Yet, the sense of the House on these concerns means that the committee cannot finalise its recommendations without considering that agreement. The committee’s report is not binding on Parliament, which has to debate the provisions of the Bill again, in the light of the recommendations.

The three concerns over which Parliament expressed its sense-of-the-House agreement in response to Team Anna’s demands in order to make Anna Hazare end his fast constitute the salient features of the Jan Lokpal Bill. The agreement was carefully worded in view of the differences among members over how to resolve the three concerns:

“This House agrees in principle on the following issues: Citizens’ Charter, Lower Bureaucracy also to be under the Lokpal through appropriate mechanism, and establishment of Lokayuktas in the States.”

Union Finance Minister Pranab Mukherjee requested the Speaker of the Lok Sabha and the Chairman of the Rajya Sabha to transmit the proceedings of both the Houses on August 27 to the Standing Committee for its perusal while formulating its recommendations on the Bill.

The government has also forwarded to the committee the Jan Lokpal Bill and the comments and suggestions of Aruna Roy’s National Campaign for People’s Right to Information (NCPRI) and those of the Lok Satta party founded in 2006 by Jayaprakash Narayan, a former Indian Administrative Service officer.

The Jan Lokpal Bill, proposed by India Against Corruption (IAC), envisages a single institution that will cover all public servants and at all levels, from the Prime Minister down to the peons, which means all Ministers, elected representatives, civil servants and members of the judiciary. The NCPRI, however, is of the view that this will make the Bill too unwieldy and lead to the concentration of too much power in a single institution.

The NCPRI proposed three different institutions, namely, a national anti-corruption commission, called Lokpal, to tackle corruption of all elected representatives and senior bureaucrats; the Central Vigilance Commission (CVC) to be an investigative, prosecution and appellate authority for the remaining categories of civil servants; and a judicial accountability commission to investigate charges of corruption and misconduct against sitting judges.

While both the IAC and the NCPRI agree that the anti-corruption wing of the Central Bureau of Investigation can be transferred to the proposed Lokpal, the NCPRI wants the anti-corruption wing of the CBI dealing with the lower bureaucracy transferred to the CVC. The latest draft of the Jan Lokpal Bill is silent on the CVC’s future despite its previous version stating that the CVC be subsumed in the Lokpal and the CVC Act be repealed.

The Lok Satta’s model is similar to that of the NCPRI. According to it, the CVC (Chairman and two members) should be ex-officio members of the Lokpal and should be appointed in the same manner as the Lokpal. The CVC will perform all functions as envisaged under the law except that the allegations against Group A officers and above will be referred to the Lokpal. Once the CVC is integrated with the Lokpal, that body will exercise superintendence and guidance of the CBI. The CBI should be divided into two agencies – the normal crime investigation wing and the anti-corruption wing. The anti-corruption wing of the CBI will be accountable only to the CVC and not to the government. In States, the anti-corruption bureau will be directly under the Lokayukta, according to the Lok Satta proposal.

The differences among these three models are not in substance, but only in form. Hopefully, the appropriate mechanism which the committee will recommend should satisfy the authors of these three models.

On the Citizens’ Charter, the sense-of-the-House agreement is silent on the modalities. The Jan Lokpal Bill makes repeated violation of the Citizens’ Charter by any public servant an act of corruption. It defines “grievance” as a claim by a person that he could not get satisfactory redress according to the Citizens’ Charter despite approaching a public grievance redress officer ((PGRO) of the department concerned. The Bill also states that the Citizens’ Charter shall enumerate the public authority’s commitment to the citizens that are capable of being met within a specific time limit, and shall designate the officer whose duty would be to fulfil the commitment of the public authority.

The Jan Lokpal Bill further states that it shall be the duty of the PGRO to get the grievance redressed within 30 days from the receipt of the complaint. If he fails to do so, a complaint could be made to the Lokpal. The Lokpal, after hearing the PGRO, would impose suitable penalty not exceeding Rs.500 for each day’s delay, but not exceeding Rs.50,000, to be recovered from his salary. The Lokpal may also recommend imposition of departmental punishment on such PGROs.

The NCPRI feels that the Lokpal should not be involved in grievance redress because it is impractical, given the numbers that would be involved and the need to tackle grievances in a decentralised manner. It, therefore, suggests the setting up of an independent, specialised and professional grievance redress commission to redress grievances effectively in a decentralised and time-bound manner.

A three-member Bench of the Lokpal, according to the Jan Lokpal Bill, may direct any public authority to make changes in their Citizens’ Charter, and that public authority shall make such changes within a month of the receipt of that order.

The Lok Satta too agrees with the NCPRI that grievance redress should not be part of the Lokpal’s jurisdiction, but should come under a grievance redress authority to be formed at the Centre and in the States. Team Anna insists that grievance redress should come under the Lokpal because it has defined grievance non-redress as an act of corruption. The NCPRI and the Lok Satta do not seem to agree that grievance non-redress should be deemed to be an act of corruption.

However, when the Jan Lokpal Bill provides for an appellate grievance officer (AGO) in each district to receive grievances and requires that there shall be a social audit of each AGO every six months, it is not clear why the AGO cannot perform the functions of the Lokpal, as envisaged in the earlier drafts of the Jan Lokpal Bill.

The IAC’s difference with the NCPRI seems to be only over the definition of corruption, which is basically an academic, rather than a practical, issue. If the objective of grievance redress can be achieved under a different authority in a more effective manner than what has been proposed in the Jan Lokpal Bill, clearly Team Anna could consider the proposed alternative rather than insist on the literal adoption of its draft.

Both IAC and the NCPRI agree that the Lokpal, as an institution, should be replicated at the State level through appropriate Lokayuktas. The Lok Satta adds that the Lokayuktas should be appointed in a similar manner by a State-level selection committee and should have similar powers, protection and functions as that of the Lokpal.

It further adds that with the ratification of the United Nations Convention Against Corruption (UNCAC), Parliament, under Article 253 of the Constitution, has the power to make laws for the entire territory of India even on State subjects in matters relating to corruption. Although the Central government initially had reservations over the demand that the Bill could create Lokayuktas in States, it has now come around to the view that it could enact a model law for the States to adopt without violating the federal principle.

The Jan Lokpal Bill, according to its framers, would be called the Anti-Corruption, Grievance Redressal and Whistle-blower Protection Act. This suggests that the last two aspects are not subsumed under anti-corruption. Therefore, the NCPRI’s basket of measures proposing a separate grievance redressal commission and a distinct and strong whistle-blower protection law makes sense. Chapter XI of the Jan Lokpal Bill, with just one section and five sub-clauses, deals with protection of whistle-blowers. The NCPRI has come out with detailed notes for discussion on strengthening the Whistle-blower Protection Bill, currently pending in Parliament.

The fact that Team Anna wanted Parliament to commit on only these three issues makes it clear that it is flexible on other contentious issues such as the exclusion of the Prime Minister from the Lokpal’s ambit if the allegations against him pertain to national security and defence.

The government’s Bill includes in its ambit corruption in non-governmental organisations (NGOs). Team Anna’s answer to this is that the investigation of allegations of corruption in NGOs by the police does not lead to any conflict of interest and therefore such allegations can be kept outside the purview of the Lokpal. However, if the allegation mentions that a public servant sought to influence the investigation of corruption in an NGO, the Lokpal can investigate it and prosecute the accused.

Team Anna has also answered the criticism that the Jan Lokpal Bill is silent on corporate corruption by drawing attention to Section 6 (o), according to which the Lokpal’s function is to recommend cancellation or modification of a lease, licence, permission, contract or agreement if it was obtained by corrupt means and to recommend blacklisting of a firm, company, contractor or any other person involved in an act of corruption by the public authority. In the event of rejection of its recommendation, the Lokpal may approach the appropriate High Court for relief.

Another provision is Section 31 (1), which says that no government official shall be eligible to take up jobs, assignments, consultancies, etc., with any person, company, or organisation that he had dealt with in his official capacity. Subsections (2) and (3) of Section 31 call for complete transparency in the award of contracts, public-private partnerships, agreements or memorandums of understanding (MoUs).

Team Anna probably did not consider these provisions critical enough to bargain for their inclusion in the sense-of-the-House agreement even though they seem to be more significant than the three ‘sticky’ issues that it identified as the roadblocks that prevented Hazare from ending his fast.

It is ironical that Team Anna, which had initially questioned the relevance of the Standing Committee fine-tuning and improving the provisions of the government’s Bill, now sets great store by its ability to make a difference to the Bill.

Perhaps its confidence was restored after the committee’s recommendations on the Judicial Standards and Accountability Bill, referred to it by Parliament, became public. In its report, the committee is of the view that the government has to move beyond an incremental approach and give urgent and due thought to a holistic legislation encompassing the appointment process and other related matters to ensure judicial accountability for improved administration of justice.

In particular, the committee has recommended dilution of the provision imposing severe punishment for frivolous and vexatious complaints so that genuine complainants are not discouraged from complaining against the misbehaviour of a judge. The Bill prescribes imprisonment of up to five years and a fine of up to Rs.5 lakh for those found to have made false complaints against a judge.

The committee has also recommended the inclusion of non-judicial members in the composition of the complaints scrutiny panel, on whose decision alone a complaint could be considered by the National Judicial Oversight Committee. The Standing Committee has also recommended the need to broadbase the membership of this oversight committee with nominees from the executive, the legislature and the judiciary, and make it inclusive with representatives of all social classes.

Team Anna has agreed to drop its insistence that the Lokpal should include members of the judiciary in its ambit, on the condition that Parliament adopt a stronger Judicial Standards and Accountability Bill than the one that was referred to the Standing Committee. The Jan Lokpal Bill’s inclusion of the judiciary under the purview of the Lokpal did not go down well with other civil society groups, which are concerned about the threat to judicial independence from an all-powerful Lokpal.

Source: http://www.frontline.in/stories/20110923281901200.htm