For drafting an ideal Lokpal Bill
Arun Kumar
CESP, SSS, JNU
The Hindu, May 31, 2011
The drafting of the Lokpal bill is back in the news after the Assembly elections. The co-chairperson of the high powered committee has said that progress is slow and the deadline of June 30 is likely to be missed. Some civil society groups have made suggestions on what the Bill should contain. The Chairperson of the Drafting Committee has responded with alacrity sensing an opportunity to get the government’s way by claiming division in civil society. Apparently, important differences remain unresolved between the representatives of civil society and the government, especially, with regard to the inclusion of the Prime Minister and the higher judiciary under the purview of the Lokpal. Two issues arise, how important is the inclusion of these two and whether missing the deadline of June 30 by a few months to get a good Bill in place makes a big difference given that the Bill has been pending for 42 years.
If it is the magic wand that would eliminate corruption right away then it is urgently needed. Those in favour of the Lokpal suggest that it would check the vested interests who are spreading corruption in society. But, they are not able to convince the doubting Thomases who argue that it can neither be the panacea for all ills nor can it root out the endemic corruption in society at one go. The skeptics, who have often been in the forefront of the fight against corruption, need to be differentiated from the vested interests who have been stalling the Bill for their narrow ends. The skeptics are not for needless delay but only want prioritization of the steps to fight corruption.
Lokpal is presented as a watchdog over the corrupt system. What has our experience been with the many watchdogs we have? There is the CVC to oversee the functioning of the investigative agencies but we know that it has been largely ineffective. We have the election commission to see that fair elections are conducted and it is seen to be successful but the political system seems to be getting more corrupt. There are the legislatures which are to be accountable to the citizens and oversee the functioning of the nation but we are witness to their growing criminalization and penetration by money power. The judiciary is supposed to see that justice is done which is another form of accountability. But, increasingly, judges at all levels have been accused of corruption. There are the lesser watchdogs, like, the intelligence agencies and the regulatory bodies but they too have been accused of growing corruption. Given all this, can there be a perfect Bill which will somehow insulate the Lokpal against the corruption in society?
Today, illegality in society is widespread. It affects almost all social, political and economic aspects of the nation’s life. Tackling the growing illegality is then the most urgent task. Thus, while the Lokpal may not be the one thing on which all attention needs to be focused, it is perhaps the most important step in the drive against corruption.
It is not that the nation does not know what should be done to deal with the black economy and the associated illegality. Since the Fifties, there have been dozens of committees and commissions that have gone into various aspects of the problem. For instance, the Kaldor Report (1956), Santhanam Committee (1964), Wanchoo Committee (1971), Dagli Committee (1979), NIPFP Report (1985), Kelkar Committee (2002) and so on. Then there are the Estimates Committee, CAG and the PAC reports of various kinds.
The Reports contain thousands of suggestions and hundreds of them have been implemented. Like, reduction of income tax rates (from 97.5% in 1971 to the present 30%), elimination of many controls (MRTP, FERA, licensing, trade controls, etc.), demonetization of currency, voluntary disclosure of incomes (VDIS), Bearer Bonds, acquisition of undervalued property, foreign exchange controls, introduction of VAT and so on. Yet, the size of the black economy has continued to grow.
The various movements against corruption (like, Nav Nirman movement in 1972) or changes in the laws (like, the introduction of RTI) and the corresponding steps to fight corruption have been repeatedly thwarted/diluted by the corrupt. People have often been disappointed by these failures and become cynical. Yet, they have periodically reacted with positive outcomes, like, in the Jessica Lal case. The subversion of the steps to curb the black economy and the associated corruption is engineered by the ruling elite consisting of the Triad between the corrupt politicians, the businessmen and the executive. Since they make huge additional incomes through the black economy, they have little incentive to curb their own illegality by checking the black economy.
Can there be a perfect law that cannot be subverted? Experience tells us that this has never been the case. No Bill has fully solved the problem it set out to resolve. Our Constitution is often praised but has had to be repeatedly amended and we continue to run into problems. A law in practice has seldom turned out to be as it was drafted on paper. Human ingenuity is such that it finds loopholes to subvert the law because the spirit is not willing. Would the same fate meet the Lokpal Bill?
Take Section 138 meant to prevent the crooked from deliberately bouncing their cheques? Another instance is Section 12(6) which allows for summary trial of cases where a signed lease exists and where the tenant does not vacate the property automatically when the lease ends. Today, lakhs of cases relating to these provisions are pending in courts because the courts allow delays. The crooked then cock a snoot at the law while the honest go on the back foot. This occurs because there is lack of accountability of the judges - if a case drags on, who are they answerable to? The party that suffers due to delays cannot take a tough stance lest it antagonizes the judge and they have to suffer.
How can accountability be built into the system? Either the judges can be accountable to their conscience or to a higher authority. Today, greed and decline of morals have made the former rare. In the case of the latter, the chain ends with the Chief Justice. If she demands accountability, it would percolate down to the lowest levels. Similarly, in the government, if the PM and the CM demand accountability, the entire administration would follow suit.
Conversely, even if the PM or a Chief Justice are honest but they practice non accountability and arbitrariness, that spreads downwards and corruption grows. Information about wrongdoings in high places is collected by the intelligence agencies through phone tapping and other means but this is not acted upon. Such inaction would no more be feasible if the Lokpal Bill brings the PM and the CJI under its ambit.
But, can it bring about accountability in the political process, something elections have failed to do? Some doubt it, since the appointment of other constitutional authorities, like, the Election Commissioners, CVC, Judges in HC and CIC have run into controversies and that could also happen in the case of the Lokpal. How can the honest get to the top when corruption is endemic, except by accident?
Be that as it may, the surest way to subvert the Lokpal is to make it widely applicable to all manner of corruption. It would get embroiled in all kinds of wranglings and become like our courts; choked with cases. We have enough laws to curb corruption at various levels provided there is implementation and only accountability can ensure that. Thus, it is critical that those above demand accountability from those under them. The buck would only stop end at the top – with the PM and the CJI at the Centre and the CM and the Chief Justices in the states. That is what the focus of the Lokpal (and Lokayukta) should be. Even then without public pressure through movements the Lokpal can get subverted.
In brief, in the last six decades many steps have been taken to curb the growing illegality but they have not delivered due to lack of accountability in the system and decline of self regulation since greed has been placed on a new high pedestal. It is argued that setting up of a Lokpal is not a magic wand to eliminate corruption but important. However, its success would depend on limiting its scope to the very top which would make it manageable and lead to accountability all down the line. Then only would laws be followed both in letter and spirit and become meaningful.
The Hindu, May 31, 2011
The drafting of the Lokpal bill is back in the news after the Assembly elections. The co-chairperson of the high powered committee has said that progress is slow and the deadline of June 30 is likely to be missed. Some civil society groups have made suggestions on what the Bill should contain. The Chairperson of the Drafting Committee has responded with alacrity sensing an opportunity to get the government’s way by claiming division in civil society. Apparently, important differences remain unresolved between the representatives of civil society and the government, especially, with regard to the inclusion of the Prime Minister and the higher judiciary under the purview of the Lokpal. Two issues arise, how important is the inclusion of these two and whether missing the deadline of June 30 by a few months to get a good Bill in place makes a big difference given that the Bill has been pending for 42 years.
If it is the magic wand that would eliminate corruption right away then it is urgently needed. Those in favour of the Lokpal suggest that it would check the vested interests who are spreading corruption in society. But, they are not able to convince the doubting Thomases who argue that it can neither be the panacea for all ills nor can it root out the endemic corruption in society at one go. The skeptics, who have often been in the forefront of the fight against corruption, need to be differentiated from the vested interests who have been stalling the Bill for their narrow ends. The skeptics are not for needless delay but only want prioritization of the steps to fight corruption.
Lokpal is presented as a watchdog over the corrupt system. What has our experience been with the many watchdogs we have? There is the CVC to oversee the functioning of the investigative agencies but we know that it has been largely ineffective. We have the election commission to see that fair elections are conducted and it is seen to be successful but the political system seems to be getting more corrupt. There are the legislatures which are to be accountable to the citizens and oversee the functioning of the nation but we are witness to their growing criminalization and penetration by money power. The judiciary is supposed to see that justice is done which is another form of accountability. But, increasingly, judges at all levels have been accused of corruption. There are the lesser watchdogs, like, the intelligence agencies and the regulatory bodies but they too have been accused of growing corruption. Given all this, can there be a perfect Bill which will somehow insulate the Lokpal against the corruption in society?
Today, illegality in society is widespread. It affects almost all social, political and economic aspects of the nation’s life. Tackling the growing illegality is then the most urgent task. Thus, while the Lokpal may not be the one thing on which all attention needs to be focused, it is perhaps the most important step in the drive against corruption.
It is not that the nation does not know what should be done to deal with the black economy and the associated illegality. Since the Fifties, there have been dozens of committees and commissions that have gone into various aspects of the problem. For instance, the Kaldor Report (1956), Santhanam Committee (1964), Wanchoo Committee (1971), Dagli Committee (1979), NIPFP Report (1985), Kelkar Committee (2002) and so on. Then there are the Estimates Committee, CAG and the PAC reports of various kinds.
The Reports contain thousands of suggestions and hundreds of them have been implemented. Like, reduction of income tax rates (from 97.5% in 1971 to the present 30%), elimination of many controls (MRTP, FERA, licensing, trade controls, etc.), demonetization of currency, voluntary disclosure of incomes (VDIS), Bearer Bonds, acquisition of undervalued property, foreign exchange controls, introduction of VAT and so on. Yet, the size of the black economy has continued to grow.
The various movements against corruption (like, Nav Nirman movement in 1972) or changes in the laws (like, the introduction of RTI) and the corresponding steps to fight corruption have been repeatedly thwarted/diluted by the corrupt. People have often been disappointed by these failures and become cynical. Yet, they have periodically reacted with positive outcomes, like, in the Jessica Lal case. The subversion of the steps to curb the black economy and the associated corruption is engineered by the ruling elite consisting of the Triad between the corrupt politicians, the businessmen and the executive. Since they make huge additional incomes through the black economy, they have little incentive to curb their own illegality by checking the black economy.
Can there be a perfect law that cannot be subverted? Experience tells us that this has never been the case. No Bill has fully solved the problem it set out to resolve. Our Constitution is often praised but has had to be repeatedly amended and we continue to run into problems. A law in practice has seldom turned out to be as it was drafted on paper. Human ingenuity is such that it finds loopholes to subvert the law because the spirit is not willing. Would the same fate meet the Lokpal Bill?
Take Section 138 meant to prevent the crooked from deliberately bouncing their cheques? Another instance is Section 12(6) which allows for summary trial of cases where a signed lease exists and where the tenant does not vacate the property automatically when the lease ends. Today, lakhs of cases relating to these provisions are pending in courts because the courts allow delays. The crooked then cock a snoot at the law while the honest go on the back foot. This occurs because there is lack of accountability of the judges - if a case drags on, who are they answerable to? The party that suffers due to delays cannot take a tough stance lest it antagonizes the judge and they have to suffer.
How can accountability be built into the system? Either the judges can be accountable to their conscience or to a higher authority. Today, greed and decline of morals have made the former rare. In the case of the latter, the chain ends with the Chief Justice. If she demands accountability, it would percolate down to the lowest levels. Similarly, in the government, if the PM and the CM demand accountability, the entire administration would follow suit.
Conversely, even if the PM or a Chief Justice are honest but they practice non accountability and arbitrariness, that spreads downwards and corruption grows. Information about wrongdoings in high places is collected by the intelligence agencies through phone tapping and other means but this is not acted upon. Such inaction would no more be feasible if the Lokpal Bill brings the PM and the CJI under its ambit.
But, can it bring about accountability in the political process, something elections have failed to do? Some doubt it, since the appointment of other constitutional authorities, like, the Election Commissioners, CVC, Judges in HC and CIC have run into controversies and that could also happen in the case of the Lokpal. How can the honest get to the top when corruption is endemic, except by accident?
Be that as it may, the surest way to subvert the Lokpal is to make it widely applicable to all manner of corruption. It would get embroiled in all kinds of wranglings and become like our courts; choked with cases. We have enough laws to curb corruption at various levels provided there is implementation and only accountability can ensure that. Thus, it is critical that those above demand accountability from those under them. The buck would only stop end at the top – with the PM and the CJI at the Centre and the CM and the Chief Justices in the states. That is what the focus of the Lokpal (and Lokayukta) should be. Even then without public pressure through movements the Lokpal can get subverted.
In brief, in the last six decades many steps have been taken to curb the growing illegality but they have not delivered due to lack of accountability in the system and decline of self regulation since greed has been placed on a new high pedestal. It is argued that setting up of a Lokpal is not a magic wand to eliminate corruption but important. However, its success would depend on limiting its scope to the very top which would make it manageable and lead to accountability all down the line. Then only would laws be followed both in letter and spirit and become meaningful.
arunkumar1000@hotmail.com
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