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.
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)
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
- Legal concerns (indialawyers.wordpress.com)
- Why all in one? (indialawyers.wordpress.com)
- Jan Lokpal Bill and Parliament (indialawyers.wordpress.com)
- ‘Genuine movement’ (indialawyers.wordpress.com)
- The Lokpal and the CBI (indialawyers.wordpress.com)
- ‘Government has not conceded anything’ (indialawyers.wordpress.com)
- Lokpal legislation and statutory procedures (indialawyers.wordpress.com)
- Is the government serious about dealing with corruption? (indialawyers.wordpress.com)
- Cabinet approves the Lokpal Bill, 2011 (indialawyers.wordpress.com)
Following is the text of the Prime Minister Dr. Manmohan Singh`s opening remarks at the All Party Meeting on Lokpal Bill:
I welcome you all to this All Party Meeting on the Lokpal Bill, which is before the Standing Committee. In our last meeting on July 3, we all had agreed that we must enact a strong Lokpal Bill which can deal with the menace of corruption. During the meeting, two Lokpal Bills, one prepared by the official members of the Joint Drafting Committee, and the other, the Jan Lokpal Bill, were presented before you. The consensus that emerged was that the Government should bring a strong and effective Lokpal Bill in the coming Session of the Parliament for enactment by following the established legislative procedure.
The Government had accordingly prepared a Bill and introduced it in the Lok Sabha on 4 August, 2011. The Bill was referred to the Standing Committee on Personnel, Public Grievances, Law and Justice and it is being discussed in that Committee. Meanwhile, Shri Anna Hazareji and his colleagues have continued to maintain their stand in support of the Jan Lokpal Bill. Shri Anna Hazareji went on fast at the Ramlila Maidan from 16 August to press for their demands.
I have personally stated the Government’s position in public on more than one occasion. We want a strong and effective Lokpal Bill. Accordingly, we would like the Standing Committee to consider all points of view to evolve a broad based national consensus to create a strong institution of the Lokpal.The fast of Shri Anna Hazareji and his failing health are a matter of concern to all of us. Yesterday, I felt that I should take a personal initiative to appeal to Shri Anna Hazareji to end his fast so that we may work together in a spirit of cooperative engagement to bring into existence a strong Lokpal.
Accordingly, I wrote to him requesting him to end his fast and reiterated Government’s intention to pass the best possible Lokpal legislation with inputs from civil society and on the basis of the broadest possible consensus. I said that the matter was with the Standing Committee and the Committee was entitled to consider not only the Bill introduced by the Government but the Jan Lokpal Bill and other versions like those prepared by Shrimati Aruna Roy as well. I said that our Government was prepared to request the Speaker of the Lok Sabha to formally refer the Jan Lokpal Bill also to the Standing Committee for their holistic consideration along with everything else. I also said that the Government can formally request the Standing Committee to fast-track their deliberations to the extent reasonably feasible, subject to its discretion and the necessity to reflect deeply and spend adequate time on such an important Bill.
Following this, Shri Anna Hazare agreed to hold discussions with the Government. Accordingly, Shri Pranab Mukherjee and Shri Salman Khurshid met with three of his representatives to find a way out of the present impasse. Broadly their position is that (a) the Government should withdraw the Bill introduced in Parliament (b) the Jan Lokpal Bill should be introduced with some changes in Parliament within four days and (c) this Bill should be discussed and passed during this session of Parliament by extending it if necessary, with minor amendments adopted by Parliament, and without referring the Bill to the Standing Committee. If a written commitment can be given with timelines, then the representatives said they can hopefully persuade Annaji to stop his fast. I will ask Pranabji to brief us later in more detail on what transpired in the meeting.
Our common objective is to build a strong and independent institution that will deal effectively with corruption, which is a major challenge that confronts our democracy and our nation. Recent developments have raised issues, related to the functioning of our Parliamentary democracy, that concern all of us. I, therefore, thought it appropriate to convene this meeting to brief you on these developments and seek your guidance on the way forward.”
- JAN LOKPAL BILL : Prime Minister writes to Shri Anna Hazare (indialawyers.wordpress.com)
- Prime Ministers Statement on the Lokpal Campaign and Anna Hazare Arrest (indialawyers.wordpress.com)
- Ambedkar’s way & Anna Hazare’s methods (indialawyers.wordpress.com)
JUSTICE J S VERMA IN THE INDIAN EXPRESS
I write this letter with some hesitation about a matter of great national significance, succumbing to the constant pressure of many eminent citizens with the background of considerable public service and experience of governance at the highest level. Naturally, they are disturbed as I am, as you must be most of all, by the urgent need to prevent the clear and present danger of the prevailing unrest crossing a Rubicon, by taking steps to end the imbroglio.
As the head of the government, you alone can, and have to, perform this onerous task. With the commitment of “We, the People of India” to a democratic polity, I am sure, the people also clamour for a peaceful solution.
The nation is focused on the urgent need to combat corruption at all levels, which most affects the common man in every aspect of daily life. The demonstration of their anger on the streets is sufficient evidence that remedial measures cannot be delayed. The rule of law, which is the bedrock of democracy, is in peril. No referendum is needed to know that the nation is unanimous on the necessity of taking prompt remedial measures, which is the prime responsibility of the government, to be discharged with the aid of citizens doing their duty. The people’s participatory role in governance is the justification for the public outcry against corruption and the inordinate delay in taking remedial steps.
The prime need of your government, therefore, is to convince the people of the government’s equal commitment on this behalf. This can be done only by you, and none else! The malaise of a lack of political will and an erosion of individual rectitude, which is the foundation of national character, has to be arrested and reversed. This, too, can be done only by you!
Anna Hazare has rendered yeoman national service by mobilising public anger against corruption, and by identifying the causes of the malaise that needs to be cured. The next important step now is to decide on the way forward, and to move in that direction. Not merely curative or punitive, but preventive measures also have to be taken. Obviously, this can be done only in a congenial environment, with the government engaging with all sections of civil society, and donning a thinking cap. It is the government’s responsibility to create this environment by gaining the confidence of all of civil society.
No one has, rightly, doubted that the final act of enacting legislation has to be performed by the legislature; and then the law has to be faithfully implemented by the executive under constant public gaze and judicial scrutiny. This is, undoubtedly, our constitutional scheme, to which everyone is committed.
What is the way forward now, at this stage?
It is unnecessary, in this context, to reiterate my views on some of the contentious issues relating to the jurisdiction of the proposed Lokpal and the contents of the existing drafts of the bill. Substantially, they are already in the public domain. I confine this letter to my suggestions for your consideration about the way forward. These suggestions have crystallised after due reflection, and also consideration of the responses of some equally concerned eminent citizens. These are stated hereafter.
Mr Prime Minister, after your government constituted a joint committee with a few members of the civil society to draft the Lokpal bill, the logical corollary of that decision has to be accepted. This means that the views of the entire civil society must be presented by your government, along with the government’s draft, to Parliament for consideration during the debate on the bill. In an “inclusive” democracy, which undoubtedly our republican democracy is, every section of civil society, and every individual, has a participatory role in governance, including policy-making. The demand of Anna Hazare to send to Parliament the draft bill prepared by his team cannot, therefore, be denied. This I say, notwithstanding my differences with some points in that draft, and the mode of his protest.
This procedure has to be equally applied to the views and drafts of other sections of civil society, including individuals, if any, offering any serious suggestions. I am also of the view that the government needs to hold a few national consultations to give all sections of civil society an opportunity to participate in the exercise by offering their views for due consideration during the debate in Parliament. This exercise must be performed within a reasonable time.
Accordingly, the drafts already prepared by sections of civil society and in the public domain, namely, those by the Anna Hazare team, the Aruna Roy team and the Jayaprakash Narayan team may be presented to Parliament as the first step in this direction, to end the imbroglio. The additional views, offered in national consultations, can follow. This is the logical corollary of your government’s decision to involve civil society in the preparation of the draft Lokpal bill. Having commenced that process, it cannot be arrested midway or after part performance.
May I also suggest, in all humility, that this plan of action (if approved by you) needs to be conveyed by you directly to the nation in a broadcast through the active 24×7 media, which is busy these days disseminating information only on this issue, for its due impact.
The writer is a former Chief Justice of India firstname.lastname@example.org
- JAN LOKPAL BILL : Prime Minister writes to Shri Anna Hazare (indialawyers.wordpress.com)
- Anna Hazare, the Constitution and the Government (indialawyers.wordpress.com)
- Ambedkar’s way & Anna Hazare’s methods (indialawyers.wordpress.com)
- A cruel joke on the nation (indialawyers.wordpress.com)