Will the basket of anti-graft bills work?Dec 27, 2011 | Nikhil Dey & Panini Anand
(The insistence on a single agency to address both grievances and corruption is misplaced. Introduction of separate Bills is, therefore, welcome. But do we really need a Lokpal Investigating Agency with enhanced police powers?)
The clichéd claim of “Transparent and Accountable Governance” has already begun to sound hollow and meaningless. And yet, these are powerful concepts with great potential for infusing meaning into the term, with potential implication for controlling arbitrary governance. The Right to Information Act has begun an exploration into Transparency in Governance in India. What we see now, is in fact a demand for accountability.
The current movement for a “Lokpal” has grown out of people’s anger and frustration with inefficiency and maladministration, and not just corruption. The answers, however, are being seen only in terms of a strong law, with repeated assertions that all the change must emanate from the Lokpal Act. It would be a mistake however to burden one law with all the legal solutions.
The Government has in fact announced that a basket of anti- corruption and accountability laws have been cleared by the Union Cabinet: The Lokpal Bill, the Grievance Redress Bill, the Judicial Accountability Bill, the Whistle Blower Protection Bill, and the Money Laundering Bill.
It is a welcome step that separate legislations and institutions are being set up to cater to a multiplicity of requirements. Now, each one of these needs to be examined for their strengths and weaknesses rather than insisting that one law, and one institution must solve all our problems. We will start with the Citizens Charter and Grievance Redress law.
Despite high levels of anti- corruption rhetoric, more people suffer due to negligence, inefficiency, and irresponsible behaviour of our officials than corruption. We inherited a colonial bureaucracy, and even after many years of independence, the attitude, behaviour and subservience to power of the colonial babu still remains entrenched in our system. The true sense of being a public servant is still missing from the soul of even our development administration. The result is mounting frustration, anger, and unacknowledged and unaddressed grievances.
Although a law can’t be the ultimate solution to this situation, one cannot belittle the urgent need to have a citizen’s grievance redress mechanism across the country. Four camps held to register grievances in Delhi recently brought up a plethora of grievances, that were clearly only the tip of the iceberg: Old age, and widow pensions, distribution of rations and relief for riot victims, people rendered homeless because of their jhuggis getting gutted, electricity department’s negligence, poor water and sanitation arrangements in our schools, and little evidence of the active hand of the municipality in public places and colonies of the National Capital and so on. The 1.21 billion Indians need a platform for our grievances to be registered, addressed, and resolved. The reality is that a system that assures us of a hearing, and time bound redress for an “actionable wrong” is completely missing from our offices.
Any agency which has the responsibility of policing and investigating a criminal act, has to be endowed with special powers, a set of exacting and meticulous procedures, and expertise of criminal law. It should be a punitive agency with no reparative role. However, for an effective system of grievance redress, we need a very de-centralised, people-friendly and independent system which has to work towards helping the common man or woman resolve complaints.
The primary objective of the Lokpal is to investigate and punish, while the Grievance redress mechanism is mandated to provide time bound reparative relief.
One of the suggestions has been to have the Lokpal address both corruption and grievances.
Bringing grievance redress under the Lopkal, would, however, remain a very superficial measure. It would get marginalised because of the diverse nature and volume of grievances alone. If the Lokpal did give grievances requisite attention, the millions of grievances pouring in on the table of the Lokpal, would render it ineffective. No matter how efficient and disciplined, we cannot ask the army to run civil administration. Not within a democratic framework at any rate. Given that the Lokpal would be required to investigate cases of corruption, grievances would be buried under a mound of files. Both grievances and corruption would be poorly addressed.
In such a scenario, grievances would not get the attention they deserve. This is evident in the treatment grievances have received in the anti- corruption dominated Jan Lokpal draft. Under this draft, the “citizens’ charter” is another mechanism of empowering the Lokpal to take punitive (even criminal) action on a complaint of maladministration. Repeated violations are supposed to be “deemed corruption”!
Another significant shortcoming in the Jan Lokpal paradigm, is that a citizen’s charter cannot cover all kinds of grievances that exist in every department. Some indication of how citizens’ charter may perform, can be seen from the recently enacted public services Act in different states. The charters’ list is limited and often just a formality. Exclusive dependence on the charters, can only provide a remedy for a small percentage and type of grievances.
The cabinet approved Grievance Redress draft has also been tabled in Parliament. It has some important clauses and sections such as a comprehensive and inclusive definition of citizens’ charter and services. It has also incorporated proactive disclosure under the RTI Act as part of its own architecture, finding a way of linking the two Acts.
It has included a statement of obligation, bringing under its purview the Corporate sector, NGOs and private bodies which provide services that are generally provided by the government. There are provisions for reservation of SC/ST and women in the Commissions, and same day redress provision for urgent matters. The Bill provides for a “designated authority” (with the powers of civil court) independent from the department.
The Ministry made an important clarification on the 23rd of December, that the designated authority would be at the District level, giving rise to the possibility that most grievances would be sorted out at the District level and below.
Improve over time
However, it still has many problems and weaknesses. It lacks a clear people’s facilitation system independent of the department. It has weak penalty and compensation provisions, where compensation is dependent on the award of a penalty. Many suggestions from the NCPRI and others have been communicated to members of Parliament and the government in this regard. Even so, this Bill is a big step forward with a framework that can be improved through amendments and experience.
At one point in time, there seemed to be a consensus that a separate law for grievance redress would be preferable, with the condition that it should be enacted along with the Lokpal. This law will give 1.21 billion people in this country a chance to fight for their entitlements and demand accountability from the bureaucracy. It should not become a victim of politics around the Lokpal.
Lokpal for policing?
The demand for a strong Lokpal has got confused with creating a strong institution. In fact, accountability to the people is a core principle of any institution in a democracy. An extremely powerful Lokpal, with tenuous accountability mechanisms, can undermine democracy itself. Few people understand that the Lokpal is a criminal investigation agency with enhanced police powers. One very unusual aspect of the Jan Lokpal movement is that, it is a strong people’s movement that has an objective of creating a powerful institution of the State. We might end up putting people even more at the mercy of a huge new police force. Some of these concerns are underscored when one looks at the latest Lokpal draft placed in Parliament.
The Jan Lokpal movement was premised on three important kinds of demands: independence, increased power, and increased scope for the Lokpal.
Since it is now clear that the judiciary, whistleblower protection, and grievances are not going to be under its ambit, it is worth examining this Bill in the light of each of these principles.
Selection: The very first question that arises when it comes to any powerful office, is the selection of the person- the Lokpal in this case. The selection committee as determined in this Bill has an imbalance in favour of Government nominees. Three out of the five, are people who could tilt in favour of the ruling party: The Prime Minster, the Speaker of the Lok Sabha, and an eminent jurist selected by the President. While it is true that these are senior people who should be expected to make non- partisan selections, there is a legitimate fear that the selection committee could pack the Lokpal with government nominees.
Removal: An application for removal is again dependent on a reference made by the President, which means that the independence of the process of removal could be compromised at its initial stage itself.
The CBI: The selection committee for the Director CBI has been changed and made more bipartisan and balanced. However, the big hope and demand of freeing the CBI from control of the government has not fully materialised. It is clear that the Government, (and in fact most of the political establishment) is not willing to let go of the CBI completely.
Removing Sanction: Doing away with the notorious single directive, and all requirements of sanction for investigation and prosecution, is a big step forward. It is also a fact the “superintendence” over the investigation process in cases where the Lokpal refers a case to the CBI as provided in this Bill, will give it powers to try and ensure that the investigation is not influenced by the political establishment.
The Lokpal Bill does provide powers to the Lokpal/Lokayukta and its investigating agencies. The lack of accountability of these agencies are, however, issues of great concern. The power to search, seize, confiscate and attach property; to deem any property not on the list of declared items of the public servant to be deemed to have been acquired through a corrupt practice; the power to suspend and transfer a public servant being investigated, will make this one of the most powerful agencies in the country.
The truth is that in India, people receive their punishment during the trauma of an investigation process. Even remote functionaries of this new establishment will therefore have the power to silently threaten people into submission, open the doors for corruption, and personal vendetta.
Under such circumstances, political targeting becomes even easier and more difficult to prove. In our current enthusiasm for building powerful “independent” technocracies, we might realise too late that the more independent and powerful the agencies are, the less accountable you can make them.
From the PM to the peon
Perhaps the area where the Government has shown greatest agreement with the Jan Lokpal draft, is in the scope and coverage given to the Lokpal / Lokayuktas. While it is very good that in one stroke everyone from the PM to the peon in the States and the Central Government have been brought under purview of the Act, this extensive overreach is likely to be its nemesis. There is no practical way in which this new institution is going to be able to meet the standards of criminal investigation, and yet provide reach to every remote part of the country to take complaints against the smallest of employees.
Covering and uncovering: The government in its wisdom (or guile?) has added the most expansive (and ridiculous) definition of an NGO to be covered by the Prevention of Corruption Act, so that any registered or unregistered group that gathers money from the public will be liable for investigation and prosecution. This has very grave implications for human rights groups, and other people based activist groups, but how can any of us object, when we are asking for every other “public” functionary to be covered!
Making Lokpal accountable
The Government seems to have done just what many of us feared- used civil society pressure to give extraordinary powers and scope to a police investigation agency, retain crucial powers for itself, and brought all potential opponents under its scope. It is imperative that the citizens of India urgently start thinking about placing controls and effective accountability mechanisms over the agency. That, in any case, is going to be a very difficult challenge.
(Nikhil Dey is a social activist associated with the National Campaign for People’s Right to Information. This article was first published in The Tribune)