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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Citizens Right to Grievance Redress Bill, 2011

A representation of the Lion Capital of Ashoka...

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Department of Administrative Reforms and Public Grievances has prepared a Draft Bill called “Citizens Right to Grievance Redress Bill, 2011”. This is a comprehensive rights based bill for the citizens of the country, providing statutory backing for getting timely services and goods specified in citizens charters of public authorities from Gram Panchayat, Block, District, State up to Central Level. Any violation of the citizens charter will be dealt as a grievance and institutional mechanism has been provided for time-bound grievance redressal and malafide action on the part of responsible officers will lead to penalty / disciplinary action.

Key recommendations in the Draft Bill are:

  1. There will be a Citizens Charter, and a protocol will be put in place.
  2. Bill can be enacted as a central legislation under the concurrent list Item 8 (actionable wrongs) and can cover:
  3. Central Schemes and Central Government Departments
  4. Provide a Platform to States to make this a Grievance Redressal Mechanism for State Schemes and Departments
  5. Bill will incorporate the institution of Information and Facilitation Centre in all public authorities to ensure that Citizens can be facilitated and grievances are systematically recorded and tracked using telephone, sms, web etc.
  6. First level Redress should be within concerned department as proposed. This should be done through a Grievance Redress Officer in each department
  7. The second level redress/ appeal will be at the level of Head of the Department of the public authority.
  8. State Grievance Commissions should be set up as second level appellate authorities.

These documents are placed in the public domain for inviting comments and suggestions which can be forwarded at the following email address by 23.11.2011:

 pk.jha@nic.in

satish@arpg.nic.in

THE DRAFT OVERVIEW AND THE BILL

Citizens Right to Grievance Redress Bill, 2011

Overview Draft bill – Citizens Right to Grievance Redress Bill, 2011

Make full use of RTI

Make full use of RTI

Make full use of RTI

BALWINDER SINGH IN THE HINDU

The Right to Information Act (RTI) is a path-breaking law which empowers ordinary citizens to obtain the required information from the public authorities. This is also a major tool for preventing and fighting corruption. The media have been highlighting from time to time the positive work being done by RTI activists. But the experience in the last few years reveals that implementation of the Act has got distorted.

Section 4 is the cornerstone of the Act. It stipulates that “it shall be the constant endeavour of every public authority to provide as much information suo motu to the public at regular intervals through means of communication, including internet so that the public have minimum resort to the use of this Act to obtain information.” The Act goes to the extent of identifying certain specific areas of information which the authorities have to publish in the public domain within 120 days of the enactment.

This critical aspect of the RTI Act has not received the attention it deserves from the authorities, the Central and State Information Commissions or even RTI activists. This has led to the burdening of government organisations as well as the Central and State Information Commissions with a large number of individual applications seeking information and filing appeals, clogging the system. The Information Commissions will soon reach a stage where pending matters will take years for disposal, thus making the system dysfunctional. Every public authority, especially those having a large public interface, needs to take up the challenge of fully implementing Section 4 at the earliest.

Computerisation of government records is not merely a process of conversion of manual records. The challenge lies in re-engineering the business processes and then computerising the records in such a manner that it simultaneously leads to improvement in the efficiency of the organisation and maximising the availability of information in the public domain in formats which are useful to the general public or the stakeholders. While there is no explicit mention of the role of the CIC and the State Information Commissions in this regard, it is inherent in the very scheme of the Act that the Information Commissions have to play a pivotal role in ensuring that Section 4 on maximising information in the public domain is complied with. The Information Commissions can take the cue from the directions issued by the Central Vigilance Commission (CVC) in November, 2006.

This author conceptualised and drafted the relevant circular of the CVC which gave directions to all government organisations to provide complete information on their websites on the laws, procedures governing the issue of licence, permission, clearance, etc., and also make known the stage of applications from public or business entities when they are seeking such permissions, clearances, NOCs, licences, building plans and passports from the public authorities. He prepared an illustrative list of 16 areas where information is to be necessarily displayed in the public domain; three of these are as follows:

Land & building related issues

-Applications for mutation, conversion from leasehold to freehold of lands and buildings, approval of building plans by municipal authorities and the land owning regulating agencies like the MCD, the DDA, the NDMC, the L&DO and similar agencies in other Union Territories;

-Application for registration deeds by Sub-Registrars/Registrars and other applications connected with land record management;

-Application for allotment of land/flats, etc., by urban development agencies like the DDA.

Contracts & Procurement

-Applications for registration of contractors/suppliers/consultants/vendors, etc.

-Status of all bill payments to contractors/suppliers, etc.

Transport sector

Issue of driving licences, registration of vehicles, fitness certificates, release of impounded vehicles, etc. by the RTAs.

The same exercise can be carried forward by the Central as well as State Information Commissions. If the Information Commissions construe their responsibilities in a very narrow manner and take a view that they can only act on complaints, then civil society, the chambers of industries and commerce and RTI activists can lodge complaints wherever maximum possible information has not been placed in the public domain on websites or otherwise and the Information Commissions can issue directions to the public authorities in this regard.

The full potential of the RTI Act can be realised only by maximising information in the public domain. This would not only further the cause of right to information but also upgrade and modernise the working of government agencies, thus improving governance.

(The author is Special Director of the CBI and his email id is sbalwinder@yahoo.com)

http://www.thehindu.com/opinion/open-page/article2442483.ece

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

 Related articles

Legal concerns

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

The Lokpal and the CBI

JAN LOKPAL BILL

JAN LOKPAL BILL

R K RAGHAVAN IN THE HINDU

The ushering in of a Lokpal should in no way dilute the CBI’s legal authority or operational effectiveness.

It is a happy turn of events that there is, at last, a kind of truce between the Central government and the Anna Hazare Team on the Lokpal issue. Both sides have displayed a measure of maturity that augurs well for the future of public life in India. The stage is now set for some animated but objective discussion of the law that will concretise the idea of a strong ombudsman. It is not enough for the two sides to say that they are for a credible Lokpal. They need to go the extra length to accommodate each other’s sensitivities. Otherwise things will be back to square one. This is why a lot of importance should be attached to the meeting of the Parliamentary Standing Committee scheduled in the next few days.

The Anna Team’s focus is rightly on the status of the Central Bureau of Investigation (CBI) in the future scheme of things. With all its faults — some real and many imaginary — the CBI is still the best bet to strike at the venality that marks public life in India.

To say that politicians alone are guilty of corruption, an impression given by the Anna Team, is greatly skewed. Civil service misdeeds are equally enormous and cannot be ignored. Take, for instance, the recent arrest of a senior Income Tax Department official who allegedly demanded a sum of Rs.50 lakh to overlook the suppression of unaccounted income by a company. Instances are legion of top officials of enforcement agencies asking for a bribe without any sense of shame or fear. The magnitude of corruption in the Central government departments is mind-boggling, and this is why we first need an effective anti-graft machinery at the Centre, rather than in the States. The corruption in the States could be tackled subsequently. If the Lokpal is unable to cut at the roots of the civil servant-politician nexus in promoting dishonesty, it would have hardly justified its creation.

The ushering in of a Lokpal should in no way dilute the CBI’s legal authority or its operational effectiveness. This should be the starting point for any discussions of the Standing Committee. A former Union Minister, referring to the plea for total autonomy for the CBI from the Executive, asked this writer some time ago as to who exactly the organisation should be answerable to if it wants to be autonomous — particularly when monitoring of all CBI cases by the judiciary was impractical. This query by an otherwise well-meaning public figure summarises the political perspective of the whole issue of the CBI’s autonomy. It reveals the unconcealed desire of the average politician to somehow retain at least a semblance of control over the CBI.

It is generally known that the senior bureaucracy is also not exactly unhappy with the current state of affairs wherein the CBI is under the thumb of the Department of Personnel. Perhaps the most significant move that came in 2003 was the insertion of Section 6A in the Delhi Special Police Establishment (DSPE) Act, 1946, making it mandatory for the CBI to get prior government permission before it can even proceed with a preliminary enquiry (PE) against an official of and above the rank of Joint Secretary. This was a dubious amendment to the Act, based on the specious ground of saving civil servants from needless harassment by the CBI. But it amounted to deliberate emasculation of an organisation that requires teeth to tackle public servant corruption. The provision has been questioned in judicial forums as violative of the fundamental right of citizens to equality before law. Let us hope that this issue is resolved soon in favour of maintaining the integrity of the public services.

It is against this backdrop that the Anna Team’s demand to bifurcate the CBI, attaching its anti-corruption wing with the proposed Lokpal machinery, should be examined. This is ostensibly in order to remove the organisation from the clutches of the Executive. The rationale is unexceptionable. The practicality of the proposed arrangement is, however, highly debatable.

The CBI does not operate with any watertight compartmentalisation of its numerous wings. No doubt there is a distinct Anti-Corruption Wing functioning at its headquarters. In the field units the distinction is, however, blurred. There is a pooling of resources at all levels when a major case, invariably a sensational conventional crime, is investigated by the CBI at the request of a State government or on the orders of a court. This will no longer be possible if a large chunk of the CBI representing the anti-corruption staff is removed and tagged on to the Lokpal. The current top brass of the organisation are reportedly opposed to such an arrangement, which would deny them the substantial manpower needed for non-anti-corruption work. The CBI’s resources are already quite slender, making it difficult to cope with the nearly 1,000 cases registered by it each year and about 7,000 cases that are on trial.

Following the Vineet Narain judgment (1997) by the Supreme Court, the superintendence of the CBI’s anti-corruption work is with the Central Vigilance Commission (CVC). This is a nominal arrangement which has worked reasonably well, because we have had some non-interfering and mature Central Vigilance Commissioners, and an equally responsible and self-effacing CBI leadership. Under an aggressive and egoistic CVC this arrangement could have become untenable. If, however, you want to disturb this stable state of affairs with a view to yielding to the demand of the Anna Team, the whole process of transition will have to be carefully conceived and worked out.

As one who has headed the CBI, I am totally against any dismemberment of the organisation. That would cause more harm than good to the objective of rooting out corruption. If the Lokpal becomes a reality, the most sensible thing to do would be to transfer the existing authority of superintendence of the CBI from the CVC to the Lokpal. Any other arrangement would result in the creation of two separate investigating agencies, namely, the CBI, and the small unit envisaged for the Lokpal. That would lead to confusion and a clash of functions. Along with such empowerment, the Lokpal could be conferred the authority (that currently vests with the government) to sanction the prosecution of public servants. This can be done by suitably amending Section 197 of the Criminal Procedure Code, 1973 and Section 19 of the Prevention of Corruption Act, 1988. The power enjoyed by the government under Sections 377 and 378 of the CrPC to deny or accord permission to the CBI to go on appeal or prefer a revision petition against the orders of lower courts could also be vested in the Lokpal. It should be remembered that we have been witness to totally political decisions in such matters. Finally, the entire budget allocation for the CBI could be placed at the hands of the Lokpal, so that the CBI enjoys freedom from any tendentious holding up by government of sanctions of money required for its day-to-day running and implementing its long-term projects.

All these suggested moves may be viewed as being too drastic. But, then, without them the CBI will remain tied to the apron strings of the Executive. The former Chief Justice of India, J.S. Verma, must be a disappointed man. His bold judgment in the Vineet Narain case was aimed at insulating the CBI totally from political caprice. If, however, in the public perception this has not materialised, both the organisation’s leadership and the executive will have to bear the cross.

The opportunity that is currently available to improve the image of the CBI through a thoughtful fusing of the agency with the Lokpal should not be frittered away. A lot of magnanimity on the part of the current Executive is called for. At the same time, the role of the media and the citizenry at large in bringing enough pressure for a reform of the system can hardly be overemphasised.

(Dr. R.K. Raghavan is a former director of the Central Bureau of Investigation.)

http://www.thehindu.com/opinion/lead/article2424159.ece

The corrupt are afraid

ARVIND KEJRIWAL &  KIRAN BEDI

It is being alleged that the jan lokpal will become a parallel government — since it would not come under the government — and will be a threat to parliamentary democracy. Both these assumptions are wrong. The government will remain powerful. The jan lokpal will only keep a check on it from becoming arbitrary, unjust and corrupt.

Several independent institutions such as the Supreme Court, the Comptroller and Auditor General (CAG), the Chief Election Commission (CEC), the Central Vigilance Commission (CVC), the National Human Rights Commission (NHRC) and the Chief Information Commission (CIC) already exist. Some of these institutions were created through law and some through the Constitution. Are they parallel governments or a threat to democracy? No. Similarly, the jan lokpal will be one such independent institution. Instead of being a threat to democracy, it will be a threat to the corrupt.

Another important question that is being asked is this: who would be the jan lokpal accountable to? To answer this, we must see who are the existing independent institutions accountable to. What can a citizen do if a judge, the CAG, CEC, CIC or CVC is corrupt? He can do nothing. In some cases, Parliament can impeach the wrongdoers. But despite strong and credible evidence of corruption in so many cases, no one has been impeached in the last 62 years.

Compare this with the level of accountability provided in the Jan Lokpal Bill. It will be directly accountable to the citizens, as per the drafted provisions, contrary to the one provided by the government’s bill. Under the people’s bill, an ordinary citizen can complain against a jan lokpal member to the Supreme Court. And if found guilty, the court can remove the member. The Supreme Court will also have the power to punish complainants who make frivolous or malicious complaints.

We are not aware of any other institution or authority in India that is directly accountable to the people. Unfortunately, the government has rejected this proposal. According to the government-drafted lokpal bill, the lokpal would be accountable to the government only. Only the government can approach the Supreme Court for his removal. This means that if any lokpal member becomes inconvenient for the government, it would move the Supreme Court for his removal. This will only erode the lokpal’s independence.

What if the jan lokpal staff becomes corrupt? We had suggested several measures to address this issue like complete transparency in the lokpal’s functioning, an independent complaints authority to receive complaints against the lokpal staff, time-bound investigation of complaints against the staff and their summary removal if found guilty, social audits, annual financial and performance audits by CAG, annual performance appraisal by a parliamentary committee. The government has rejected all these proposals, thus ensuring that there are very high chances of the government’s lokpal turning corrupt.

A corrupt lokpal will serve vested interests within the government. This is what the government has been doing with the Central Bureau of Investigation (CBI). Recently, the CBI has been taken out of the purview of the Right to Information (RTI) Act. These vested interests increased the scope of corruption within the CBI and also the possibilities of its misuse.

It is also being alleged that the jan lokpal is a ‘Frankenstein’s monster’. Barring powers to recommend dismissal of a corrupt officer, no other power has been suggested for the lokpal that is not already vested in the CBI. The lokpal would obviously need these powers if he has to do any worthwhile investigation. Vested interests want a weak and ineffective lokpal. We should demand a strong lokpal but with adequate checks and balances. In contrast, the government is offering us just the opposite.

Should a lokpal have the power to dismiss a corrupt officer? Our suggestion: after completion of investigations by the jan lokpal’s team, a three-member bench of the jan lokpal would hold open hearings and pass orders on whether or not to remove the officer. If dissatisfied, the officer could challenge that order in the high court. In contrast, the government’s bill proposes that the ministers should have the power to dismiss a corrupt officer. Experience shows that ministers are direct or indirect beneficiaries of corruption. Rather than punish the corrupt, they have been brazenly rewarded.

Recently, the CBI arrested a senior officer of the National Highways Authority of India with unaccounted cash but the concerned authority refused to permit the investigators to even register a case against the corrupt officer. Do we really think that such ministers would even order dismissal of corrupt officers? Even today, the ministers enjoy the powers to dismiss corrupt officers. But no senior officer has ever been dismissed in the last 62 years by any minister for corruption. The government’s bill proposes to maintain the status quo.

It is being alleged that if the lokpal has jurisdiction over the PM, judges, MPs and officers, it will become a superpower. This is  wrong. An income tax officer has powers to scrutinise the returns of the chief justice of India, the prime minister, the president, ministers and MPs. He even has powers to impose taxes and penalties on them. Does that mean that he will become a superpower? No. Likewise, an investigative officer in the lokpal would only — and only — investigate any allegation of corruption against these authorities. Unlike income tax officers, the lokpal would not have powers to impose any taxes or penalties also on any of these authorities. The lokpal would only do investigations and the courts will decide on the punishment.

When Anna Hazare sat on a fast for the lokpal bill, he received tremendous support from the people. The government hopes that its misinformation campaign will decrease his popularity. People should guard against such propaganda because it is only being done to protect vested interests and will hurt the general public.

Arvind Kejriwal is a social activist. Kiran Bedi is a social activist and a former police officer. Both are Magsaysay Award winners and members of the joint drafting committee of the Lokpal Bill. The concluding part of this article will appear on July 8. The views expressed by the authors are personal.