Chanakya's New Manifesto: To Resolve the Crisis Within India (22 page)

  3.82  Punishment for corruption should be enhanced. In Bihar, for example, under the Bihar Special Courts Act, 2009 (implemented only in 2010 because of the delay in obtaining the President’s sanction) the government is allowed to seize the properties of public servants if they face corruption charges and if their assets are disproportionate to their known sources of income. The Bihar Act rightly goes beyond the punishment prescribed in the PCA which restricts itself to imprisonment or monetary fines for corrupt officials. Once charges are framed against an official accused of corruption, of any kind, it is entirely legal to provisionally attach his/her property. Otherwise, corrupt officials continue to enjoy the fruits of their ill-begotten gains, and get enough time to get rid of or conceal the evidence of the properties they own. If the charges are proved the government can permanently seize the property; if the official in question is innocent, the properties can be returned.

  3.83  It is instructive to note that under the Bihar Special Courts Act, the properties of three senior officers have been confiscated. Properly worth
1.4 crore belonging to IAS officer S. S. Verma, who was the former state secretary for minor irrigation, was seized, and once he lost his appeal, was permanently attached. A government school has now been opened on this property. Properties of a former supply inspector, and that of a former treasury assistant, have also been seized.

  3.84  All states of the union must enact a similar law.

  3.85  In the case of bribery, both the taker
and
the giver must be punished, unless the bribe-giver can prove that it was an act of compulsion with no other recourse open to him or her. However, the onus to prove this must lie with the bribe-giver.

  3.86  Protection must obviously be provided to whistleblowers. Two recent and tragic cases come to mind. Manjunath Shanmugan, an employee of the Indian Oil Corporation, was a graduate of IIM, Lucknow. He refused bribes and took on the petrol pump owners who were indulging in adulteration. He was shot dead on 19 November 2005. Satyendra Dubey, working with the NHAI, exposed the pervasive corruption in road constructions. He was found dead on 27 November 2003. Cases where whistleblowers are involved should be dealt with even more expeditiously given the danger to their life.

  3.87  The creation of an effective and independent ombudsman or Lokpal—the fifth measure in the creation of an effective infrastructure to deal with corruption—is essential, but its creation must be part of an overall holistic strategy to combat corruption. Such a strategy must include the four preceding measures outlined, namely electoral reform, especially where the funding of political parties is concerned; a dramatic increase in the neutral intervention of technology; transparent laws for the disposal of natural resources and procurement procedures; and deterrent and quick punishment for the corrupt, facilitated, inter alia, through effective judicial reform. A nationwide and comprehensive architecture to combat corruption has to be put in place. In the absence of this architecture the Lokpal by itself cannot be a magic wand to fight corruption.

  3.88  The Anna Hazare movement demonstrated decisively that there is no substitute for pressure exerted by a large number of concerned citizens to make the government take up nationally-desired goals. The history of the Lokpal proposal makes this evidently clear. The proposal for an ombudsman was first mooted as far back as 1963; it was recommended by the 1
^st
ARC in 1966; a Lokpal Bill was introduced in Parliament in 1968 but was allowed to lapse; subsequently, it was half-heartedly introduced on seven more occasions, the last in 2001; each time it lapsed, and on one occasion, in 1985, it was withdrawn. In 2004, the UPA, in its National Common Minimum Programme, promised that the bill would be enacted. However, nothing was done until January 2011 when a GoM under Pranab Mukherjee took up the issue. There is no doubt that the bill was passed by the house only because of the public pressure brought to bear on the political class. Currently, there are several proposals on the anvil: the government Lokpal and Lokayukta Bill, 2011, Anna Hazare’s Jan Lokpal Bill, the amendments proposed by the NCPRI, the proposals made by Loksatta’s Foundation for Democratic Reforms, the Bahujan Lokpal Bill, 2011 and the suggestions made by social reformer Aruna Roy. The Lokpal Bill, as currently drafted, has been passed by the Lok Sabha, but is awaiting Rajya Sabha approval; it has also been widely criticized by activists of the Anna Hazare movement, and several other NGOs, for not being strong enough.

  3.89  As for the manner of appointment of the Lokpal, it should be sufficient if the selection committee restricts itself to the PM, the CJI and the leader of the Opposition in the Lok Sabha. The suggestion to broaden the selection panel by including an ‘eminent jurist’ or an ‘eminent person’ as has been proposed in the bill, is not necessary. To add other judges, when the judiciary is represented by the CJI, would be to add needless superfluity. A three-member panel would be compact and adequately representative of the primary constituents.

  3.90  The proposal that the selection committee be assisted by a multi-member search committee is a good one. The composition and strength of the search committee should be left—as the bill proposes—to the selection committee, with the proviso that it include representatives of civil society, and members who reflect the socio-economic and regional canvas of India.

  3.91  The government bill has satisfactory provisions with regard to the composition of the Lokpal (it will comprise eight members of which at least four are members of the judiciary) and with regard to the qualifications, tenure, and process of removal of the Lokpal.

  3.92  The Lokpal should be able to act on a complaint received from any citizen and through suo motu powers vested in it.

  3.93  It must cover all public servants as defined under the PCA
,
including Group A, B, C and D officers, but exclude the judiciary, which for reasons stated earlier must have its own ombudsman.

  3.94  The PM must be within the ambit of the Lokpal, but with the valid qualifications suggested by the NCPRI
.
Given the politically charged nature of our polity, and the vested interests that operate within it, it would be expected that motivated charges against the head of government could be made. In a democracy, the PM, as the chief executive, must be protected from being permanently besieged by motivated charges, because in his stability lies the stability and prestige of the government itself, both on national and international levels. However, it is true that nobody, howsoever high a position he holds, should be beyond the purview of the law. To balance these two polarities, the safeguards proposed by the NCPRI make sense—these specify that any complaint against the PM would have to be first referred by a full bench of the Lokpal to the CJI, who would refer it to the full bench of the Supreme Court, and the Lokpal would take up the investigation only if so recommended by the bench. Further, since national security is paramount, on any information that would compromise national security, the CJI would decide after a briefing by the PM on whether the information should be disclosed.

  3.95  As the bill proposes, the Lokpal’s jurisdiction should cover any executive or manager or director in a company or body owned by the government, and any official of a society or trust that is financed by the government or through public funds.

  3.96  As the NCPRI has proposed, any private company, if it has received any licences or contracts from government in violation of any law, should also be within the jurisdiction of the Lokpal.

  3.97  On the issue of powers of investigation and prosecution, I think the CBI, as it is currently constituted, should be trifurcated. One wing would be placed under the NKL, as discussed earlier. A second wing should be under the Lokpal. A third wing would deal with cases other than those falling under the PCA, and would be under the supervision of the government.

  3.98  Both the NKL and the Lokpal would be toothless unless they are given powers of investigation and prosecution. These powers can only be exercised effectively if they have an agency under them which is independent of the government and works exclusively for the authorities to whom it has been seconded. There is incontrovertible evidence that the CBI, while theoretically independent of government, works at the behest of the government of the day. One example—although countless can be provided—will suffice to illustrate this. Lalu Yadav was accused in the fodder scam in 1996; in 2003 the CBI filed a charge sheet against him; however, this was put on the backburner in 2004 when the UPA government came to office. Charges were finally framed against Lalu in March 2012. This state of affairs must change. Thus, two separate wings of the CBI, reinforced if required by additional recruitment, must be placed at the disposal and control of both the Lokpal and the NKL.

  3.99  In addition, the Central Vigilance Commission (CVC) must, as proposed by the Foundation for Democratic Reforms, merge with the Lokpal. A multiplicity of watchdog authorities serves little purpose. With the creation of the Lokpal, there is no rationale for having a separate CVC. The resources of the CVC, as currently constituted, must merge with the office of the Lokpal. The Chief Vigilance Commissioner and two members of the CVC, could become ex-officio members of the Lokpal. While working under the overall authority of the Lokpal, their specific focus would be to take up complaints against Group C and D employees.

3.100  With the above in place, a timeline should be mandated for the prosecution of those accused of corruption. On receiving a complaint, or on suo motu cognizance of a matter, the Lokpal should complete the inquiry within sixty days; if it believes that a prima facie case exists it would task the wing of the CBI under it to investigate the case. The investigation must be completed within six months. If the investigation recommends prosecution, a case shall be filed in the special court, and adjudicated upon in the next six months. The Lokpal would also be empowered to impose a punitive penalty.

3.101  The Lokpal would not require any governmental permission to carry out its mandate. As recommended by the 2
^nd
ARC, the time has come to repeal Article 311 of the Constitution, by which no action can be initiated against a public servant without prior permission of the government. No other nation has such a constitutional provision, not even the UK, whose administrative systems were borrowed by India. It would seem that the provision was placed by our Constitution makers to protect public servants from unnecessary harassment. But it can be nobody’s argument that ‘a corrupt civil servant’s rights are more important than the need to ensure an honest, efficient and corruption-free administration. Ultimately, the public servant, an agent of the State, cannot be superior to the State and it is his fundamental duty to serve the State with integrity, devotion, honesty, impartiality, objectivity, transparency and accountability’.
²⁹

3.102  This argument becomes even more relevant with the creation of the Lokpal that will consist of an eminent and carefully selected panel including jurists, and mandated to conduct a thorough preliminary inquiry. Only, only if prima facie evidence of wrongdoing exists, will it order an investigation. The investigation will be conducted by a dedicated and professional agency. The concerned civil servant will be given a chance to defend himself. With such safeguards, the prior permission of government to enable the Lokpal to act, is not necessary. It is essential that we have the requisite trust and faith in the institution of the Lokpal.

3.103  The Lokpal should have constitutional status. As recommended by the Standing Committee of Parliament, and the Foundation for Democratic Reforms, among others, there should be a single, central law to deal with the appointments of the Lokpal and the Lokayuktas in the states. The Lokayuktas can be appointed by a similar selection committee consisting of the chief minister, the state chief justice and the leader of the Opposition, and must wield similar powers with respect to government officials at the state level. Just as the Lokpal has a specific wing of the CBI under it for investigation and prosecution purposes, the state Anti-Corruption Bureaus (ACBs) should be under the Lokayuktas.

3.104  The opposition of some chief ministers to a uniform law relating to the Lokpal and state Lokayuktas is incomprehensible. In implementing a reform measure against corruption which is unarguably good for the country, how can states argue that they will not—on the grounds of preserving federalism—become a part of the national framework? Moreover, with the ratification of the United Nations Convention Against Corruption (UNCAC)
,
under Article 253 of the Constitution, Parliament has the power to make laws for the entire territory of India on matters relating to corruption. States could enact their own laws with minor variations in accordance with specific local circumstances, but they should not be allowed the option of not enacting the law, or enacting an entirely different law. As a compromise, the Centre could make a model bill for Lokayuktas, and leave it to the states to enact their own laws based on it.