Towards An Effective Lokpal
It is by now widely accepted that the sarkari Lokpal Bill is extremely weak and inadequate. There has been heated debate over the scope, functions and powers of the Lokpal Bill. In the public domain, apart from the government Bill, there are the Jan Lokpal Bill and the recommendations of the NCPRI led by Aruna Roy.
Below, we will consider some of the important aspects of any genuine and effective Lokpal legislation, in the light of the ongoing debates.
Definition of Corruption
The sarkari Bill does not go beyond the definition of corruption of the Prevention of Corruption Act, 1988 (PCA): essentially covering various forms of bribery or misuse of a public post for personal gain. This definition is quite limited and does not address many major forms of corruption.
The Janlokpal Bill and the NCPRI recommendations offer more expanded definitions of corruption beyond the PCA. The NCPRI recommends that the PCA be amended to cover corporates.
Apart from any offence punishable under Chapter IX of IPC and the PCA, the JLP Bill also includes any offence committed by an MP or MLA including with respect to their speech or vote inside Parliament or Assembly. It includes victimisation of a whistleblower or witness. The JLP’s definition covers “wilfully giving any undue benefit to any person or obtaining any benefit from any public servant in violation of any laws or rules,” which can apply to undue benefits given to or obtained by private corporations. To make it even clearer that corporations and companies are covered by this definition, the Bill should read ‘person or entity’ instead of just ‘person.’ Any genuine Lokpal legislation must include this expanded definition of corruption to cover corporate corruption, conduct of MPs/MLAs, and intimidation of whistleblowers/witnesses.
The diversion and misuse of funds earmarked under special plans or welfare outlays for SC/ST/BCs/women, children, minorities, and workers; and failure of public servants to implement laws enacted for the welfare and protection of these above sections as well as workers, should also be specifically included under the definition of corruption.
Method and Criteria for Selection of Lokpal
It is important for the Lokpal selection process to be independent and transparent, so that the Lokpal is not filled by Government appointees. The sarkari Bill’s selection committee is dominated by the government, virtually making it impossible for the Lokpal to be truly independent and impartial vis-a-vis the Government of the day.
The NCPRI recommendation of a selection committee comprising the PM, Leader of Opposition and one sitting judge of the Supreme Court nominated by the Chief Justice, is also too vulnerable to influence by the ruling dispensation, which will only need to have a pliant Chief Justice to have its way.
The JLP Bill provision is more credible: the selection committee will be headed by the PM, and will include the leader of the Opposition; two judges of the SC and two permanent Chief Justices of the High Courts selected by collegium of all Supreme Court judges; the CEC, CAG and all previous Chairpersons of Lokpal.
Both the NCPRI and JLP versions make the appointment of a search committee mandatory. The JLP proposes a search process that is transparent and allows for the general public to raise objections to nominations.
The JLP spells out criteria for eligibility of Lokpal members – mainly, “unimpeachable integrity” and a history of fighting corruption. In our opinion, some other criteria also need to be spelled out in keeping with the broader definition of corruption discussed above. Therefore we hold that the criteria specifically rule out representatives of industry. Also, those charge-sheeted for corruption, crimes against women, SC/ST Act, or offences related to discrimination on grounds of caste, gender or religion should be ineligible. For members from a legal background, preference should be given to those with a history of taking up cases for workers, those from deprived castes, and women, and those with a history of taking up a brief against these sections should be ineligible.
There should also be provision for representation of SCs/STs, women and minorities in the search committee.
Scope, Coverage and Powers
The government’s contention that the PM should be kept out of the purview of Lokpal is completely discredited. Mandatory setting up of Lokayuktas in each state on the lines of the Lokpal is also a must.
Supercop?
One argument is that giving a single institution – the Lokpal – coverage of all levels of public servants including lower bureaucracy, and effective powers and personnel for investigation and prosecution, will create a ‘supercop’ that would threaten democracy. This argument is unconvincing. A single case of corruption might involve public servants from all levels from top to bottom –having different bodies to investigate different levels would render investigation unviable. If the Lokpal is not given sufficient personnel (the JLP suggests that the anti-corruption wings of CBI and CVC come under the Lokpal) it would render it thoroughly ineffective. From patwari and peon to the PM, the Lokpal must certainly have full powers to investigate and prosecute any allegation of corruption, and take suo motu notice of corruption cases.
Judicial Corruption
Whether the Lokpal covers judiciary or a separate Judicial Accountability Bill is enacted, judicial corruption must be effectively addressed. At present NCPRI recommends a separate Bill and the JLP campaigners have said they are willing for a separate Bill as long as it is effective.
It is imperative that there be an autonomous and independent mechanism to investigate cases of judicial corruption.
Whistleblower/Witness Protection
Measures to protect whistleblowers/witnesses in corruption cases from harassment must be incorporated into the Lokpal legislation.
NGOs
The sarkari Bill includes all NGOs (here, the definition of NGO could apply to trade unions, women’s and students’ groups, human rights groups etc) under the rubric of ‘public servants.’ The NCPRI and JLP versions keep out all NGOs except those that receive public funds.
We hold that all government-funded, corporate- or foreign-funded NGOs – that is, NGOs with access to huge funds, should come under the scrutiny of the Lokpal.
Corporate Corruption
The sarkari Bill has absolutely no provisions to address the corrupt nexus between corporations and public servants, though this nexus is at the root of the worst instances of corruption today.
Of the Lokpal drafts in the public domain, it is the JLP Bill that does recognise and address the problem. In its statement of object and reasons, the JLP quotes the Article 12 of the UN Convention Against Corruption, that makes it obligatory for the government to take measures to prevent and punish private entities from benefiting from corruption, and public servants from giving undue benefits to private entities.
On the lines of the UNCAC recommendations, the JLP gives the Lokpal the power “to recommend cancellation or modification of a lease, license, permission, contract or agreement, if it was obtained by corrupt means and to recommend blacklisting”.
Another provisions of the JLP relevant to curbing corporate corruption is that “If the beneficiary of an offense is a business entity, in addition to the other punishments provided for under this Act and under the Prevention of Corruption Act, a fine of up to five times the loss caused to the public shall be recovered …from the assets of the business entity and from the personal assets of its Managing Directors, if the assets of the accused person are inadequate.”
According to the JLP, “No government official shall be eligible to take up jobs, assignments, consultancies, etc. with any person, company, or organisation that he had dealt with in his official capacity.”
Further, “All contracts, public-private partnerships, transfer by way of sale, lease, and any form of largesse by any public authority shall be done with complete transparency and by calling for public tender/auction/bids,” (unless it is an emergency measure whereby the reasons be recorded in writing), and “Any violation of this shall make the contract/largesse void.” Details of all such transactions are required to be made public on a website. Similarly, the JLP also stipulates that “all contracts, agreements or MOUs related to transfer of natural resources, including land and mines to any private entity by any method by any public authority shall be put on the website within a week of being signed.”
Public vigilance and pressure are called for to ensure that these measures aimed at curbing corporate/PPP corruption are an integral part of any Lokpal legislation that is enacted.
Some have argued that the JLP Bill is actually a World Bank ploy to use the corruption agenda to weaken the state’s role and promote corporate power. This argument is unconvincing. A strong law to curb corruption of public servants, especially if it has provisions for curbing the nexus between corporations and public servants, does not amount to promoting corporate power at the expense of the state. However, a JLP legislation in itself is not necessarily a challenge to the neo-liberal policy regime, any more than RTI, MNREGA etc are. The World Bank is known to prescribe many reform measures – including RTI, food security, right to employment, and even anti-corruption. Why does it do so? Probably to provide a balance to the neo-liberal policy regime and check popular resentment.
While these above legal measures are needed to curb corporate corruption, it cannot be emphasised enough that such legal measures on their own are inadequate and doomed to fail unless accompanied by a conscious change in the existing policy regime that keeps breeding corruption through corporate plunder. In an interview (Frontline Apr. 23-May. 06, 2011), Prashant Bhushan, who helped draft the JLP Bill, said, “If you do not change the policies that are creating huge incentives and demand for corruption, and in the process are creating these monster corporations, then the Lokpal is also likely to wilt under the onslaught of such monster corporations...The Lokpal itself will become either corrupt or intimidated by these corrupt corporations.” Undoubtedly the struggle against corruption must, alongside an effective Lokpal law, also struggle for reversal of the policy regime that is breeding corruption by giving ‘monstrous’ powers and wealth to corporations.