Not another Lokpal Leviathan please!
Published: August 3, 2011 - 13:04 Updated: August 3, 2011 - 13:14
Anna Hazare, Kiran Bedi and Arvind Kejriwal would do a greater service to society if they took on the roots of corruption rather than pitching their camp in Delhi
MR Sivaraman Chennai
A reading of both versions of the Lokpal bills — the government’s, and that of the Anna Hazare camp — leaves an impression that the whole effort is to set up a Leviathan with little authority more than that of a glorified investigating agency. Investigations — currently a function of the CBI and other investigating agencies — would be conducted by officers specially appointed for the purpose. After the Lokpal decides to launch a prosecution based on the investigators’ report and the defence of the accused, the actual prosecution would have to take place only in a court of law. There is no escape from it. Thus, even a district or an additional district judge may dismiss a case filed by the mighty Lokpal (equivalent to a Supreme Court judge). When that happens, how would anybody judge the efficacy of this machinery? The Jain Hawala case should serve as a lesson in this context.
Neither the Hazare group nor the government has spelt out exactly how the Lokpal would reduce corruption in a manner that the existing mechanisms have not been able to, or lead to more efficient prosecution of the corrupt. Under the Prevention of Corruption Act (PCA), 1988, authorised police officers can conduct investigations into an alleged offence under the Act and file a chargesheet when an offence is established. Under the proposed law, the Lokpal would only act as one more filter before a case goes to court. The PCA refers to a public servant in relation to an offence and has other provisions (such as Sections 8 and 9) that can be applied to whoever tries to influence a public servant with illegal gratification.
There has been much ado about nothing regarding the inclusion of the prime minister and higher judiciary under the ambit of the Lokpal bill. The PCA does not make any such exception — it defines a public servant as “any person in the service or pay of the government or remunerated by the government by fees or commission for the performance of any public duty”. If the government is interpreted as the State, then it covers members of Parliament and legislatures, and members of the judiciary. Section 2c(iv) makes it clear that it covers
The proposed legislation does not meet several requirements of the UN Convention against Corruption (UNCAC). It does not deal with the bribery of foreign officials. There is no provision for dealing with corruption in the private sector (Article 12 of UNCAC), or to make the private sector responsible for preventing corrupt practices at their end. There is no provision to protect officers of the intelligence services and armed forces in case their actions in the national interest violate the provisions of the PCA, nor is there anything on the issue of international cooperation in investigation, freezing and seizure of assets secreted abroad.
So what additional purpose would the Lokpal serve beyond what the PCA is doing now? Is it only about introducing a high-profile layer of the Lokpal’s office between the court and the investigating officers?
The UK brought into force its Bribery Act, 2010 on July 1, 2011. The country had legislated its first law against corruption in 1888. The Act is couched in simple language, and is replete with examples, making it easy for anyone to understand the clauses. It meets all the requirements of the UNCAC. No one is exempted and no sanction is necessary to prosecute anybody, except from the director of prosecution for completing legal formalities. It puts the onus on the corporate sector to prevent corruption.
There is no reason why the government of India could not have revised the time-tested PCA in keeping with the changing corruption scene. Necessary changes could be incorporated to make the private sector responsible for preventing corrupt practices, besides provisions for the freezing and forfeiture of assets, seeking external cooperation in investigations and for freezing of assets held abroad, laying down a time limit for completing the case in a court etc.
It seems both the Hazare group and the government find it convenient to have a separate law — the former for garnering publicity, and the latter, to exclude certain persons from the general application of the PCA. The gullible public are unaware that there is nothing in the proposed law to stop corruption at its roots.
Truly, despite the din and bustle against corruption across India, it’s business as usual for bribe-givers and bribe-takers. A former Indian Revenue Service official told this writer that while he was presenting certain documents in support of an appeal against an assessment order before an Appellate Commissioner, the latter, without batting an eyelid, asked for 25 per cent of the amount that was being contested for setting aside the order. He generously offered 5 per cent to the ex-official. If one looks carefully at the invoices issued by automobile companies, one would notice service charges to get the car registered; there is a generous something in that for the regional transport office. Police stations collect thousands of rupees every day from the illegally parked buses and cars on the road in front of IT companies. The farmer has still to pay the village officer to get a copy of his khasra (a legal document giving a number to a piece of village land), even though the governments claim that the system has been computerised and the numbers available free to the farmer.
Neither the Lokpal nor the PCA can reduce corruption, let alone stop it. Corruption has to be stopped at the places where they take place, starting from the village-level offices, tehsils, police stations, collectorates, income tax and customs offices, magistrates’ courts — all the offices where the public has to go.
The government could easily set up a new investigation arm, composed not exclusively of police officers, but including individuals drawn from diverse fields — chartered accountants, lawyers, judges, doctors, forensic experts, bankers and civil servants — to undertake inspection of the points of corruption, detect cases and investigate them, besides suggesting improvements in systems to prevent corruption. There could be a separate prosecution branch of lawyers and magistrates to successfully prosecute the cases in special courts. Both investigation arm and prosecution branch could function under the Central Vigilance Commission (CVC). The CBI can then be left to handle the rest of the high-powered criminal cases, even as it is itself subjected to scrutiny, which is not the case now.
Instead of reducing corruption, the Lokpal would become a huge wall between the investigating agency and the courts. It will be one more organisation with huge expenditure on salaries, perquisites and accommodation, providing sinecures to retired judges, civil servants and some preferred outsiders. Everyone would be happy, including the corrupt, as there is nothing in the proposed law to stop their activities. The public would keep paying where they have to, as there are very few who would stand up and fight against a demand for a bribe. Anna Hazare, Kiran Bedi and Arvind Kejriwal would do a greater service to society if they took on the roots of corruption rather than pitching their camp in Delhi.