War against corruption vs Institution of Lokpal

AuthorsAmitabh, IPS officer from UP and president, National RTI Forum Dr Nutan Thakur, Freelance journalist and Secretary, IRDS
ContactDr Nutan Thakur, Secretary, IRDS, 5/426, Viram Khand, Gomti Nagar, Lucknow-226010 # 91-94155-34525 nutanthakurlko@gmail.com, nutanthakurlko@yahoo.in www.nationalrtiforum.org, www.irdsindia.com

Issued in Public Interest by IRDS and National RTI Forum, Lucknow

Foreword
Civil Society and Lokpal- these are the two words that have come to acquire the focus of discussion everywhere not only in the Media but including that of common mans interactions as well. Whatever we might be talking of, finally things move in such a way that we find ourselves discussing these two words. And why shall it be not so? Common man is today facing the heat of corruption to a big extent and somehow the media has ensured that people start believing that corruption can be gotten rid of and eliminated only through the means of the institution of Lokpal being presented by a select group of the Civil Society members. It is being said and widely claimed that the moment the Lokpal Act actually comes into play, we shall be able to get rid of the menace of corruption and shall be able to breathe in a corruption-free pure society. This is like sweet music ringing in our ears and making us feel exalted and mesmerized but the real question is- Is this also the truth? When today we see around us people who start misusing their positions despite having limited rights and powers bestowed to them, it is not difficult to envisage the magnitude of abuse and exploitation that might happen at the level of a Lokpal who has such wide powers provided to him, in an almost unencumbered manner. This is an issue that needs to be looked into and assessed properly before we make a move in this direction. Presently it is being said that a Lokpal will be a purpose having impeccable integrity and a wonderful track record, chosen by a very well-crafted process eliminating all chances of a rotten egg getting selected to this post. But the fact is that impeccable integrity and perfectly dedicated person are words which can never be defined, less can they be exactly predicted. In the case of the government servants, there is at least a welldefined process through which they can be enquired into for their misconduct and can be accordingly taken to task, if their misdemeanour is proved. This way there is some kind of guard over their action. But what be said about a person who comes from outside and has never previously had an opportunity to show their true colours and their caprice. Every individual is honest as long as he/she has not got a chance to be dishonesty. What we want to say is that the human nature is roughly the same in various individuals. Almost every human being has elements of good and bad in different measures. Thus to say that a Lokpal shall be immune to this basic human nature is like believing in a dream world. If incidentally we are able to get a Lokpal of requisite integrity and requirements, can we say the same about the rest of the staff in the Institution? Wont they be almost in the same lot as the rest of the investigating agencies, presently in existence? Coming to the question What are the features that make Lokpal different from the rest of the previously existing institutions? As far as we can think of, we are unable to find anything remarkably different here. Despite the fact that the mental framework of an average Indian has been attuned to such measures that criticizing Lokpal is being regarded as being pro-establishment or being either a proponent of the corrupt people or of himself being corrupt, we do feel it our duty to present facts before the people for the general public welfare, being willing to take all the brickbats in the process.

We strongly feel that we need to keep our eyes and ears open and shall think over the issues in our own way and shall not get swayed by whatever is being told to us as the last Gospel. It is for this purpose that we are presenting this booklet for our readers which we hope will make it very obvious that fighting corruption and creating the Institution of Lokpal are two completely different ballgames shall not erroneously be clubbed together as being synonymous. We are making an attempt to let the people realize that the theory being propagated presently by Civil societies that corrupt politicians are trying to sabotage the Lokpal Bill because they fear its consequences is also nothing more than a figment of imagination. Through this booklet, we do present the view that creation of Lokpal is not really averse to our democratic system but that can happen only when we envisage a Lokpal who acts more as a watchdog with a definite role in the existing system and not one which is being attempted to be superimposed as a Superstructure in the already existing system. At the same time, we are also attempting to present a few practical and pragmatic ways of fighting the menace of corruption.

Dated- 21/06/2011 Place- Hyderabad

Amitabh Nutan

(The views expressed here are the personal views of the authors)

Lokpal is not going to be a magical panacea

These days Lokpal is the biggest noise we are hearing everywhere. The way things are being presented, it seems as of this proposed institution of Lokpal is going to be a panacea for all that this related with corruption- in the same vein as the Bollywood films show the death of a villain and the life being happy for ever after that. This is a highly simplistic way of presenting facts and highly erroneous as well. As far as we can understand, there cant be a one is to one relation between the institution of Lokpal and the fight against corruption. Even if the Lokpal finally comes into being, its effect would be minimal as long as we dont take multi-pronged approach to fight corruption becausea. There is nothing new in this proposed Lokpal by the Civil societies which is not already there in our existing laws. Whatever new is there, that is generally against the established principles of law. Our country has a very large number of laws for curbing corruption. The most important of them is the Prevention of Corruption Act. Then there is the Prevention of Money Laundering Act, 2002. The Benaami property (Prohibition) Act 1988 is also there. It is true that there are loopholes and problems in each of these Acts but such loopholes can be discussed and cured. There are other so many anti-corruption Acts as well. All these Acts can be discussed on public forum and proper solutions can be arrived at. There is always a scope for improvements in laws, it being a dynamic process. But it cant be said that corruption is there in India only because of lack of proper laws. Hence, propagating and inserting more laws can never be regarded as the sole way of reducing or eliminating corruption. b. In the same way, we also have a very large number of laws and prescribed procedure for implementing and following these Acts. Some of the most important of these are section 154, 156 and 200 of Cr P C. Under section 154 CrPC, every complaint of cognizable offence needs to be registered in a police station if such a complaint is presented to the officer in charge. If the same is refused or not registered, under section 154(3) CrPC, it becomes the responsibility of the Superintendent of the District to get the offence registered. Even if such a case is not registered, there is section 156 CrPC under which the concerned Judicial Magistrate has the powers to get the crime registered. Finally under section 200 CrPC, the Magistrate can take suo-moto cognizance of the complaint made before him. What is important to note is that all complaints related with Corruption are cognizable offences and hence can be followed through one of these provisions. Even if all these mechanism fail, there is the High Court and the Supreme Court which can get the crime registered. c. The kind of fruitless discussion about who shall come under the purview of Lokpal or not, whether the PM or the Chief Justice of Supreme Court shall come under Lokpal or not etc are again nothing more than pointless realm of public discourse. The reason is obvious- the CrPC, the IPC and even the Constitution of India does not give any person other than the President of India and Governor of a State any kind of criminal immunity. Cases of

d.

e.

f.

g.

h.

i.

corruption can be registered and investigated against any person. If such things are actually not happening, it is not because of the dearth of legal provisions, it is because of the practical difficulties and realities of life. If the all-powerful organizations like the Supreme Court and the High Courts cant get it done, can an organization like Lokpal get it done? If it is said that we lack in powerful organizations vested with required legal force, then again it is absolutely incorrect. If we have such powerful organizations like the Indian Parliament and the State legislatures to frame and enact laws and rules, we also have such extremely powerful legal bodies like the Supreme Court and the High Courts. While the High Courts have extraordinary powers under Article 226 of the Constitution, the Supreme Court of India has wonderful legal powers under Articles 32, 136, 139)A) and 142. So much so that if they want to act, they can get anything enforced within a few minutes. Hence to say that we lack in organizations with sufficient powers is nothing but a fallacy and a lie, possibly being perpetuated deliberately. It is almost like saying that Democracy does not exist in our Nation. The institution of Lokpal shall have a few Lokpals and their assistants. They shall be getting umpteen number of complaints. The fact of life is that very soon they will be so much overburdened by complaints and paper works that they shall not be able to look beyond their regular administrative works. Certainly in such conditions, they will hardly be left to deal with enquiries and investigations. Even if Lokpal or such other organizations come into being, the judicial powers of the Supreme Court and the High Courts shall still remain there. Hence there will be judicial interventions as well as Judicial activism. In sum, the situation will remain the same. Hence there is neither a dearth of laws in our Nation nor any lack of procedures to get these laws implemented. What actually needs to be done is that the publicly concerned persons come forth in all these individual cases and pursue them to the hilt by presenting them at all possible forums. This can happen only through public advocacy, peoples participation and by gaining the peoples confidence and not through any other Institution. Today our Anti-corruption organizations are said to be facing mainly three kinds of problems- first is about lack of resources and manpower, the second is about political interference and the third is that of huge workload. We often see that when people ask for a CBI enquiry in a matter of great importance, CBI is not able to take it up because of the severe lack of resources. The same is true of all other premier investigating and anti-graft organizations. This is also the case with most of the Judicial bodies. Even if an organization like the Lokpal comes in existences, very soon it will also be overburdened with cases and its condition will be no different from that of others. As far as political interference is concerned, to think of political insulation and isolation from political impact in any democratic system is like dreaming in broad daylight. It comes naturally as a natural corollary. We can easily see that even when Lokpal has not come into existence, a chosen few seem to

have converted it into their own fiefdom. Another parallel power center is also trying to gain prominence and to have its say. By the time Lokpal is actually a reality, there would be scores of parallel power centers of different natures all vying for power, position and perks. The way the members of the Lokpal Bill Committee reacted when allegations were made against some of their members even before the allegations were actually verified, is a testimony to how things will actually shape up when the race for Lokpal will actually come into operation. j. It is again a great fallacy being propagated that vested interests including corrupt politicians and bureaucrats do not want a strong anti-graft body to come up. Is it not the height of foolishness to think that the people who dont fear the CBI, who dont care for the Enforcement Directorate, who are least bothered about the Income Tax, who dont consider the COFEPOSA or the Prevention of Corruption Act as being good enough and who ignore the presence of the High Court and the Supreme Court would start shivering with the coming of Lokpal? The matter of fact is that such powerful corrupt people will hardly care for any organization. For them their personal gains and own greed would remain uppermost than anything else. They would be knowing very well that the powers of Judicial intervention would remain intact, they would also know that the personnel in the Lokpal organization would not be coming from some other planet and would be as much willing to hobnob with the rich and the powerful as anyone else. k. In sum, what all this means is that Lokpal or any such Institution is not solely going to make a remarkable difference to the prevailing situation. What we really need is to strengthen our existing establishments by making a realistic assessment of their problems and shortcomings through open eyes and open mind and not to go on bringing more and more newer Institutions. These days a very large number of misconceptions and half-truths are being propagated through certain quarters to get the institution of Lokpal formulated by any possible means. We shall be presenting two of the more important of these myths that are in great circulation presently. A perusal through these myths in wide circulation will make us understand how wrong facts are being propagated in a way which might have extremely adverse long-term effects because they are having a deep intact on the entire democratic setup of ours.

First Myth- Political Parties dont want strong Anti-graft laws

These days a trite has come into existence-Political Parties dont want strong Anti-graft laws. It is being said that the members of the Civil societies want strong anti corruption laws to get our country rid of all kinds of corrupt practices. It is being said that Lokpal is the Institution that is being promulgated and presented by the Civil societies to end the menace of corruption once and for all. Also that that the Institution of Lokpal along with a few strong anti-graft antidotes are going to be the panacea for all the corruption related troubles that our Nation is facing badly. At the same time, another rumour that is making way through all possible sources is that since a very large number of politicians, highly placed officials and rich businessmen are involved in corrupt practices, hence they are trying everything within their means to sabotage the efforts of these Social activists to bring strong anti-graft laws. What is interesting is that even like the 24x7 electronic channels, newspapers, SMSs, social networking sites etc. have started believing this as a gospel truth and are all talking of strong anti-graft laws and their opposition by vested interests. Now, no one can say what exactly is a strong or weak law because laws cannot be measured by just having a look at them. But it does not mean that we ignore the basic fundamentals of Jurisprudence in order to formulate the so-called strong anti-graft laws. As we all know, Hammurabi code talked of any eye for an eye or an arm for an arm. While it does look simple and appealing to listen them yet we did not accept such a legal setup where today some accusation is made, tomorrow the evidences are brought, next day the judgement is delivered and on the subsequent day one eye or one arm is gone simply because we all knew that if after the delivery of the judgement it was found that there was some error in the facts than there would be no means to get the order reversed. It is for the reasons of proper check and balance and "due process of law that we adopted the modern principles of law instead of these simplistic formulations. What it means is that just by getting lured by such fanciful words like strong anti-graft laws we shall not try to get enunciated and attracted towards some of such half-baked measures which go against the basic premises of our legal system. Other than this basic introduction, what we are discussing here is about the so-called opposition of powerful and vested sections of society to the strong anti-graft laws. Just the way the ex American President George Bush is quoted to have said that those who are not with us are in opposition to us, these Civil society members are trying to say that everyone who is opposing their grand idea of Lokpal are against a corruption-free society and are in a way corrupt. But if we go deeper in this matter, we will find that nothing could have been more incorrect and fallacious. The reason is simple- those who are powerful and those who have influence and those who have huge wealth with them

are capable enough to get their influence felt everywhere. If a person has wealth, it will attract and influence people everywhere in equal measures. If a person has political power, it will be able to permeate itself at all places. Similarly a really influential bureaucrat very well knows that his presence and his influence will be acknowledged and recognized at all possible places. What it means is that these truly power and influential people believing in corrupt means dont get affected or frightened by any new arrangement or structure because they very well know that if there is a system, there would also be ways to mend and bend them and to find ways through them. They know that they have been able to go wherever they have wanted to go and to formulate their ways. They also know that ultimately every system and structure is made up of human beings and all human beings are what they are- human beings. Thus they will have some weaknesses, some needs, some requirements, some difficulties, some problems, some tensions. And of-course some desires and some ambitions. Coupled with this, a lot of fear. All these are good enough to be used and exploited by those people with power, authority, influence and money who want to do so and who have no qualms about the ways to be adopted to get their ends fulfilled. Thus we must be very clear in our minds that whatever so-called strong anti-graft laws are being talked of today will not be able to affect these upper echelons of corruption but will fall upon the ordinary people. Those getting affected by these measures will be the ordinary officials of any government setup, the low paid employees and businessmen with ordinary status. Corruption today being an all-pervading phenomenon, having its presence in all strata of society, thus while the rich and the powerful shall be able to find their ways to tackle these so-called strong anti-graft laws made as against the basic premises of judicial principles, the ordinary people shall be its prey who would find it difficult to prove their innocence even in the face of it and will have to bear its brunt. Thus such strong anti-graft laws shall also be against the principles of Human Rights and might acquire draconian proportions in wrong hands. As far as the influential people- the politicians, the powerful bureaucrats and rich people is concerned, they will remain as cool and composed as ever because when such powerful bodies like the Supreme Court and the High Court, CBI, Enforcement Directorate, Income Tax, Sales Tax, Customs Department etc and COFEPOSA and Prevention of Corruption Act could not instill fear in them and deter them from corrupt means what would a new Act and a new Institution do. They very well know that all this would mean in practical terms is that the fees of their legal counsel will increase by some amount because they know that these legal eagles will be able to find ways to fight the new menace of Lokpal as soon as it comes into existence.

Thus to say that the political parties are fearful of a strong anti-graft law is as big a lie as to say that rich people get frightened by the news of some impending famine. On the other hand, if attempts are made to make strong anti-graft laws by ignoring the basic principles of law and jurisprudence then it will certainly have its ill-effects on ordinary and poor people.

Second Myth- Politicians and Bureaucrats are corrupt and Social activists honest
Another misconception that is being propagated these days in a very big way is that since the politicians and bureaucrats are generally corrupt, hence occupants for the proposed Lokpal shall come from outside. The way these Civil society members are presenting the Lokpal Bill, even the members of the Judiciary shall be limited here. Our view is that such an opinion is not only erroneous, it is even bad in theory. Let us first talk about the politicians. We all know that a politician has a meaning only when he ids backed by the public. Any politician without people behind him are meaningless. Thus the first thing that is apparent is that a person becomes a leader only when he has followers. And a follower means a living human being. The same human being that is considered the finest creature on this Earth. Every human being possesses among other things a brain of his own, the same brain through which he thinks and observes, the same human brain through which he takes decisions based on so many complex set of facts and circumstances. While it is true that many a times a person might get affected by extraneous things which have their own interplay in arriving at a decision but the influence of all these extraneous factors taken together never so much as to make a person take a decision completely against his wishes, or against his own self-interest. We must not only understand but we shall also appreciate the fact that each human being finally takes a decision that suits him the most. This holds true for the illiterate as much as the most literate person in the world Thus to have an opinion that people are not able to understand facts around them and are capable of being duped by the politicians is a completely fabricated and opinioned thought. At the same time, it is also an insult to the thinking prowess of mankind. Every person takes a decision in the same way as everyone of those who shall be going through these piece of writing finally decides about the merit or demerit of its contents. We belong to villages and we very well know that even the poor and so-called illiterate persons have great capabilities as far as deciding things for their own benefit is concerned. Hence to presume that the politicians are fooling the public all through and the people are getting fooled without their will is akin to thinking that the courtship between a boy and a girl can go for years in a unilateral manner. Politician is there before the public day and night, on a 24x7 basis. The public looks at each and every act and conduct of its representatives and other politicians. Thus a politician is not there in the sky, speaking niceties without actually knowing them but is a person firmly rooted on ground. He is responsible for his actions and his behaviour to the multitude of people he wishes to represent. The moment the people think that he is found wanting in these aspects, the politician is thrown out of favour then and there.

We are witness to not one or two elections. There is one election or other every now and then. Sometimes it is elections for the Village Panchayat, sometimes for Nagar Palika or for the State assembly or Parliament. There are also many Bye-elections. Shall we believe that the public casts its vote in a blind fashion in all these elections? Would there be any bigger fallacy and misconception? Would there be any other form of insult and disrespect for human wisdom? Let us now talk of Government officials. Every government servant is part of a definite structure and system. They carry some authority, but coupled with them are a large number of responsibilities as well. These people are constantly in some proper control. Every government servant works in the subordination of someone else. In the same manner each official has a set of duties assigned and thus even if they wont want, they need to perform some of their duties. If they dont do so, they can be taken to task and can be suitably penalized- right from informal rebuke to suspension and termination from service. Thus these people have many things at stake which they need to think of twice before they try to play with the system. These government servants are evaluated not only by their superior officers but even the common masses have some kind of control over them. There would be umpteen number of examples when government servants are not only transferred on public complaint but they also have to suffer other problems like being placed under suspension, criminal cases getting registered against them and so on. If people are not satisfied with a government servant, there is a modality to present this grievance. They can complain to the senior officers and if the grievance is not redressed, the complaint can be made to higher authorities and then to various Courts of Justice. Thus there is a proper mechanism for grievance redressal. Similarly, the Annual Performance Report of every government servant is written down. Thus to think that a government servant is completely free to behave in an irresponsible manner is a completely incorrect view. It is no different from thinking that our Earth is completely free of the system of Gravitational forces and can move on wherever it feels like. Now coming to the Judiciary, the situation is not much different. The members of the Subordinate Judiciary right up to the District and Sessions Court are as much a public servant as the rest of the government servants and every other kind of penal and departmental action is possible against them as other government servants. High Courts and the Supreme Court always try to keep a very sharp eye towards the deeds and misdeeds of the members of the lower judiciary to keep its reputation overboard. The rules and regulations related with High Court and Supreme Court Judges are different but they also are governed by the method of Impeachment through which they can be removed from their positions. At the same time they are also in the focus of the

preening public eyes. Each of their decisions are scrutinized and evaluated not only by the concerned persons but also by millions of other people who get to know about them through Media reports. Though the Contempt of Courts Act does inhibit many a people from expressing some of the views they might have wished to state but this does not stop people from forming opinions about these members of Judiciary. Dont we have the example of some of the Supreme Court decisions on Bhopal gas tragedy getting severely criticized? The facts as mentioned above make it very apparent that today each politician, each government servant and each Judicial authority is bound by certain rules and regulations and has to work in a given set of structure and system. We remember the statement of one of our IAS friends who said in an informal gathering- We all are in the same situation as a Hindu widow. We need to keep ourselves as pure and unblemished as her. Any spot on the character of a Widow and any charge on us become visible and publicly know immediately. We are not saying that today all the politicians, the government servants and the Judicial authorities are equally concerned about keeping their names equally unblemished and clear as that IAS friend was saying. There would be hundreds of examples which would be in juxtaposition to the abovementioned situation. There are many among this lot which are leaving no stone unturned to get their names and reputations besmirched in all possible manners. But still the fact remains that there are definite rules and regulations that govern them, regulate their activities and there are a set of people to whom they are directly and indirectly responsible. At least theoretically, they can be taken to task whenever such aberrations and irregularities come to the fore. We are not putting in any definite comment about what are generally called the social activists but we would certainly say that unlike the politicians and bureaucrats the social activists are not regularly controlled and regulated nor are they responsible to any group of people in the same manner as the above groups. In such situations, to create a feeling of universal distrust towards these people or to proclaim them as being dirty en masse seems nothing short of sedation. This is a condition of becoming distrustful not only to our entire governing system but also to start disbelieving our own self. We believe that all such efforts by every individual or group of persons to create feeling of mistrust towards our system of governance is not only completely erroneous and incorrect but is also against the general interest of our Nation.

The harmful effects of proposed Lokpal

While it is true that there is no one is to one correlation between the Institution of Lokpal and the eradication of Corruption, if we go slightly deeper into the matter, we will also be able to see that there are a large number of ill-effects and dangerous consequences related with the formation of the new body of Lokpal as being proposed in its present formata. To us it seems very clear that an interest group with vested interest are trying to get the new Institution of Lokpal getting formalized which shall come up as a parallel power center where in the future there shall be the same kind of cutthroat competition to grab these posts as is happening in many other places. What would be different in this case would be the fact that unlike other places, another newer section of the Civil societies might also get into this rat-race and we might witness huge lobbying for these positions. Today this might not look that serious a conjecture but very soon it will come up as a reality. A glimpse of this was very clearly seen when after the Jantar Mantar stir, the Government of India announced its decision to form a Committee for lokpal Bill and the as per some reliable media reports, some members of these Civil societies started acting in strange manners and news of inner competition for getting appointed to these posts started coming in. This just shows what would happen when the case of actual appointments to Lokpal will come. More so when the post will be as powerful as are being envisaged and proposed by the Civil Society. b. To think and presume that the Institution of Lokpal can be completely independent in a democratic system is a great fallacy. This is because when the same set of people shall making the selections, the general environs shall be the same, the laws of the land shall be the same, the culture and ambience shall be the same then to think that Lokpal shall be able to have a different kind of culture and functioning would be a complete misnomer. Again, other than the Lokpal whoever else comes to this organization will come from the same background as all others in different other organizations. c. When a new Institution like Lokpal is created at the large scale being presently advocated by a few, there will be a huge grain of our limited resources, our man power etc. This Institution will need administrative paraphernalia, different kinds of resources, man power and every other requirement and this will incur a huge cost. d. With the coming of Lokpal another avenue might come into being for certain sections of retired powerful bureaucrats, some retired lobbying Judges and the members of the Civil societies and in all certainty another new chapter might get opened in the existing system. e. The kind of Institution of Lokpal being proposed by the Civil societies is completely against the basic framework of our legal and governing system. The most important feature of our Constitution and our governance is the separation of power, its basic premise being that power shall not get concentrated in the hands of any one authority so as to misuse it. The saying of Lord Acton that power corrupts and absolute power corrupts absolutely has a great acceptance

in the principle of Governance and Justice system. Hence, if the Lokpal is given the authorities as diverse as initiating an enquiry, guiding an investigation, taking administrative decisions and holding disciplinary proceedings and seizing the supposed ill-acquired money from corrupt means there are bound to be huge possibilities of it being misused. Anyone who knows even an iota about human nature would never recommend such organizations to come into existence because if such all-powerful organizations come into being, they can help a person with bad intentions to exploit the powers in unimaginable measures. All of us know about Military rules in our neighbouring countries when very serious accusations of misuse of power and authority by a few persons at the behest of some powerful people were incessantly made. Would we like such a situation to arise here when the same person has so many different kinds of powers put together? f. If any organization of the kind proposed for Lokpal comes into existence, there would be huge scope of misuse of power. The reason is obvious- the personnel working in such powerful organizations would always have a natural tendency to abuse their authority. Today we see even officers of CBI getting caught in corrupt activities, complaints about the Judicial officers also come now and then. Hence, to think of an Institution completely insulated to this menace is unthinkable and incorrect. The dangers of Lokpal that we have enumerated here might not look as serious today as they actually are, more so because of the sway of the members of the Civil society today, thanks to the massive propagation done by the 24X7 media. But the reality is that very soon each of these facts will start getting visible the moment such an Institution actually comes into existence. Today when a police man kills a criminal in one of those framed encounters, we do come forward and say that this was not proper. Even when the policemen try to justify that the person killed was a dreaded and hardened criminal whom the law of land was being incapable of acting against, we say that the policemen shall keep themselves to their area of activity and shall not try to act as a Judge. Almost the same thing will happen when we come up with an Institution comes into being which acts as Police, Prosecution, Administrative wing and Judge at the same time.

What kind of Lokpal?

One of us had recently gone to USA where she got an opportunity to look into the functioning and structure of the US system of governance and their particular emphasis on transparency. What we understood was that in America, there is not one organization or institution which has overarching powers. Instead the fundamental principle of democratic governance, viz. separation power seems to be the basis of governance there and everywhere there are a very large number of watchdog organizations who keep a very close and vigilant eye over the functioning of different government organizations in USA from very close quarters. There are separate organizations to keep eye over Media and to regulate its functioning, there are different watchdog organizations for Judicial bodies and yet others for local self-governments, public attorney and so on. Thus in America (and possibly in all western nations) there is a very beautiful and well-placed decentralization and separation of power. This, in our eyes, is the biggest virtue of American democratic functioning. We also feel that wherever there is such an arrangement the quality of functioning naturally becomes much better and hence we also need to adopt such kinds of arrangements. Transparency is essential for better performance of any government and it is extremely useful as well. It does not need much intelligence to understand that wherever there will be openness there is bound to be less possibility of irregularities. For instance, the formulation of the Right to Information Act 2005 has made the governments much more transparent and responsible. The concept of responsiveness and accountability has increased much than it previously was and a lot of credit for this must go to the Right to Information Act. Though a few people are also misusing the RTI Act but their number is much less. One aspect of our criminal justice system that needs particular attention is the independence of our prosecution wing. In USA the prosecution wing is relatively more independent. There the Public Attorney might be part of the Government but they are free to quite some extent to present their point of view. Possibly the situation is not the same in our country where the State has more control over the prosecution wings. In this aspect, we are of the strong view that we need a prosecution wing in India which is more independent from the Government control. More importantly, we also need to have a very large number of independent watchdog agencies in India to keep a stock over the functioning of the Government agencies just the way the US has. In the same vein, there is nothing wrong in having the institution of Lokpal as one of the important independent watchdog agencies. Just the way there are Lok Ayuktas in the States, we can have a Lok Pal at the national level to deal particularly with the corruption related cases. We can get defined the work and scope of functioning of the Lokpal, its powers and authorities and about which Constitutional and non-

Constitutional bodies shall come under its purview. Thus the Lokpal can function as one of the very important watchdogs of our governance, dealing particularly with corruption. Hence the institution of Lokpal shall be such that it works as an independent watchdog agency and not as a newer and alternate center of power trying to have fresh skirmishes for power and authority with the already existing power centers. If the Lokpal actually works as a very strong watchdog center, then only it can make a better contribution to the society and can prove its utility in the prevailing judicial and constitutional arrangement along the strongly built and time-tested judicial principles. At the same time, it is equally important that no official perks and accessories be provided to any person appointed as a Lokpal(s). They shall not be burdened with big monthly emoluments, huge bungalows, other government supports in monetary and non-monetary ways, Guard of Honour, gun totting security personnel and so on. He shall not be seen as one more burden on the public exchequer and one more person who has got settled in the government mechanism to rule over the people. This is a purely voluntary work and needs to be seen exactly in the same manner. If no big perks and huge facilities are not provided by the Government, the incumbent to the post of Lokpal will perform his job with more commitment and there will also not be a big fight for grabbing the post of Lokpal. The institution of Lokpal based on the robust principle of checks and balance and acting as an independent watchdog shall certainly be able to contribute positively to governance by making its dent felt in the fight against corruption but to say and believe that Lokpal alone will be able to end the menace of corruption singlehandedly is an extremely puerile and simplistic view.

How to Fight Corruption

We cant fight a disease like Cancer in one day. So, the first thing that a person who has got affected by Cancer needs to clearly understand is that he has been afflicted by a disease which needs a very thorough and detailed diagnosis followed by an equally long and painful treatment. If someone does not understand this simple fact and starts showing undue haste, he is bound to lose the battle in the very beginning itself. The situation of corruption in India is no different from the disease of cancer. It is difficult to say whether it is from the top or from the bottom. While we have some very powerful people being involved in big scams like the 2G spectrum and Commonwealth scam, we also have a very large proportion of us playing these corruption games at every nook and corner. Thus we will find one of us either giving some money to a TTE in a train to occupy an unreserved birth or another person acting as a Traffic constable and accepting some token money from some person in lieu of some traffic violation. Similarly, while one of us is giving huge donation money to get our ward admitted to an engineering college, another one is accepting unaccounted money for admitting a child in one of those prestigious schools. Most of these corruption games are not being played by big people. It only has involvement of ordinary people who are doing this in a completely voluntary manner. In such circumstances, if some person or some group of individuals comes before us and starts saying that it has come up with an easy cure for this disease, then it is similar to some doctor coming with a Baby tonic and saying that this is what will cure the disease of cancer. In our opinion, an Institution like Lokpal is not singlehandedly going to have any substantive effect on a menace like corruption. Corruption is a very deep and intricate problem in India and hence if we want to have a solution for this problem, we first need to understand it in its totality. This needs a very broad and holistic view and not shortcut sweet-looking solutions. No single organization or Institution can get rid of this menace. So how to fight corruption? Here we present a few of the possible ways. But at the same time, we very well understand that they are only a few of the many possible ways and are in no way exhaustive. Each one of us can contribute our own solutions and can add up to this list to make it more holistic and effective. a. The first thing is to accept and fully understand that corruption cannot be eradicated in one day. This might seem to be too simplistic and obvious but has deep inferences. The first thing it means is that we shall not go for any kind of easy-looking solutions which might have detrimental effects in the days to come. Secondly, it also means shall we shall not get unnecessarily concerned if we are able to end or control corruption within a given time span. Those ready-to-use kind of remedies for fighting corruption send bad signals and when they dont happen in reality, people start feeling doubly demoralized. We need to stay clear of any such situation.

b. The second thing to understand is that our country lacks neither in laws, acts and rules nor in the institutions to fight corruption. As far as independent and autonomous bodies are concerned, they are always so more on paper than in reality, particularly in democratic structures. We all know that the appointments for the top posts in many of the presently operating Institutions are said to be made on factors of merit, performance and job requirements and are officially bereft of any socio-political influences but the fact is that different factors of extraneous nature are always said to have their effect on many of these appointments. Each of such Institutions and its people have their own set of influences. The members of the Civil service get selected through an independent examination and their career prospects are so safe that no political person can generally harm them beyond a limit, yet we all see political influence on the functioning of the career bureaucrats. Hence to say that Lokpal(s) and the employees belonging to this Institution will be chosen in an completely independent manner and will go on serving in the same way is a completely erroneous one. c. The third thing is that to fight corruption, we need not only laws and acts and institutions, we also need complete public involvement and public cooperation. But how will this be done? This is a very difficult and time consuming process where each of us who want to contribute to a corruption-free society will have to come forward and will have to get as many people involved in this process as possible. Each one of such publicly concerned person will have to initiate as many people into this as is possible, so as to make it effective and truly widespread. d. The fourth point is that we need to make corruption, its ill-effects and ways and necessity of fighting corruption an integral part of our educational system. Thus we need to incorporate not only Moral and Ethics as part of our educational curriculum right from Class One but we also need to have Anti-corruption as part of our study system from the very beginning. We know that we dont necessarily follow each and every thing we are taught in our school days, yet it is also true that such things do form a part of our subconscious and have their own impact on our action and behaviour. e. Fifth point is that we do need to criminally penalize those who are found involved in corrupt means. This punishment can be of three kinds. The first of these is social punishment. Those who are found involved in corrupt activities must be socially ostracized and this fact must be spread far and wide. The media and newspapers need to come forward to get these done. They must present all corruption-related news with due prominence. We are of the view that other than penal punishments, these social punishments also have a great role in dissuading people from adopting corrupt means. For this again, we need all the social organizations and socially-concerned people to come forward and play their effective roles. f. Sixth point would be to penalize the person involved in corrupt practices departmentally. Whenever any kind of complaint comes against any government servant, it needs to be enquired immediately and suitable action needs to be followed as a result of this enquiry report. What is equally important is that such

an action is taken in as short a time period as possible. This is important to have its salutary impact on the concerned officer as well as a deterrent impact on others. If such a departmental action goes on lingering for years and the affected person finally comes as being innocent, then the entire process has a very negative effect on everyone else. Hence it is necessary that exact time limits are fixed for all kinds of departmental enquiries and departmental proceedings which shall be followed in absolute terms. Whenever such prescribed time limits are not followed, the concerned official shall also be taken to task and shall be suitably penalized. If such rules are framed, they will certainly be followed and this will have tremendous impact on the reduction of corruption. g. The same is the situation with our Judicial setup. The huge delay in the judicial process is considered as one of the greatest problems of our nation and since judiciary comes in play in almost every walk of life, hence the delay in judicial process affects the system badly at different places. We need to give great emphasis to this aspect. What we need today is fast and speedy justice. The moment there is delay in justice, injustice and atrocities automatically come in play- not only against the accused but also for the innocents and for the rest of the society. In both conditions- where evidences and witnesses are not coming and where there are sufficient evidences present, decisions need to be taken on a much faster pace than it is happening today. We strongly feel that there is an immediate need to formulate such laws which fix the maximum period in which every court case shall get decided. Even if some accused get free through this system of faster justice, it is much better than todays position when the cases are kept in limbo for years and a persons fate and reputation hangs in air for decades. We must welcome the Government of Indias step to bring the Right to Justice Act which tries to cater exactly to this problem. This would be a real milestone in our legal system and will help in corruption related cases as much as in other cases. h. One thing that we need to ensure is that all our economic and financial transactions, all our economic and trade activities, industrial productions and all kinds of services provided are duly registered and documented. What this means is that whatever goods are sold and purchased, whatever services are offered and used, whatever goods are transacted shall all get computerized and their database shall be maintained. This is not an easy job to get achieved in a day or two but this is the only way in which we can really ensure than the flow of black money gets actually checked. At the same time, it is also not very difficult because the systematic use of e-governance can get this realized in actual practice instead of its remaining a wishful thinking. The moment the financial transactions get electronically tabulated, the scope for black money to circulation the economy will be severely curtailed. Thus we shall begin all our efforts in this direction to get it actually materialized. i. The next point relates to the proper use of Benami Property (Prohibition) Act. We know that this is a very potent Act if it is used properly which unfortunately we have not been using this Act to its complete potential. The reason is that many of the people who earn huge amounts of black money generally try to store it through benami property earned in the names of others. Hence if proper surveys

of all big properties are conducted and even if the very basic information about these big properties is sought through these surveys, they would yield very useful results. The reason is that in many cases, there would be people who never actually existed and are hence completely fictitious. In other cases, they would be people who are in such poor financial conditions that they simply cant explain the possession of these properties. This kind of survey is not very difficult and if the Government makes up its mind to do it sincerely, it can certainly get it done. j. At the same time, we also need to be very concerned about the ill-effects of such social problems like the Caste system and the Dowry system. These two social menace have a big influence over corruption. Due to the presence of rigid caster system, people are forced to marry their children within very limited circles. The result is that dowry is increasing by the day. We have seen many a person getting into corrupt practices solely to get money for their daughters marriage and yet not being able to gain sufficient money till the end. This also amply proves that mere laws are not able to get rid of a social problem. It is years since we had the Dowry Prevention Act promulgated, but even today we find almost all marriages accomplished with huge sums of dowry money. Corruption, like dowry, is also a social problem other than being a crime. Hence we need to frame laws which can be genuinely implemented and have the desired effect on the society. If we follow all these steps and many more such ways in their totality with an open mind with complete honesty, due diligence and immense patience, then only we shall be able to rein in the problem of corruption to the desired level that our society today desires. Otherwise, nothing is going to come out of all these dramatic propositions and highsounding proposals.