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print versionThe News International, June 27, 2011
The Indian government’s first-ever effort to accommodate civil society concerns on corruption has ended. This was a roller-coaster ride for the government-civil society joint drafting committee on the Lokpal (ombudsman) Bill. It left both sides injured. The two will present their separate recommendations to a proposed all-party meeting in July. This is a good time to draw up a balance-sheet of the process.
The government set up the committee in panic at the response that Anna Hazare’s fast drew from the middle classes, which “could get out of hand†. It gave non-government members (Team Anna) an unprecedented 50 percent representation in what it saw as a “safety-valve†committee. Team Anna too acted in bad faith by questioning the government’s intentions.
The committee debate, marked by abuse and accusations, was conducted in the shadow of Baba Ramdev’s fast, and the government’s gross mishandling of it. That the two parties reached even partial agreement in nine rounds of meetings affirms the value of debate and reasoning on public policy issues.
Some matters have been sorted out in the committee, including the size of the Lokpal team (11 members) and their separate investigation wing. The Lokpal can prosecute public servants without prior government sanction. Optimistically, the areas of convergence and discord could both serve to take the debate forward and result in a better Lokpal Act than the government would have drafted.
There are two preconditions, however. One, the government shouldn’t scuttle debate. Two, the Congress party shouldn’t play its usual Machiavellian tactic of accepting under pressure cosmetic changes to the way its government functions without making it truly accountable.
It would be suicidal for the Congress to do this. Its government’s credibility stands battered by numerous scams. The latest – and one of the greatest – involves Reliance Industries’ padding up its capital expenditure on the Krishna-Godavari gas field by $6 billion – at public expense.
The main differences between the government and Team Anna pertain to extending the Lokpal’s ambit to the prime minister’s office, the higher judiciary and the conduct of MPs in parliament; the Lokpal’s appointment and removal; funding; putting the CBI’s anti-corruption wing under the Lokpal; disciplinary power over allegedly corrupt officials; and term of punishment for corruption.
The government concedes, at maximum, that the Lokpal would receive complaints against the PM, but defer their investigation until s/he demits office. In support, it cites the report of the National Commission to Review the Working of the Constitution established by the Bharatiya Janata Party (1998), which said “The nation cannot afford to have a prime minister under a cloud .... The PM should not be subjected to [the] Lokpal as this would severely impair his independence and freedom of judgment.â€
There is merit in this argument. The Lokpal should not destabilise the government or the PMO. But Rajiv Gandhi didn’t stop functioning after the Bofors investigation started. Nor was PV Narasimha Rao paralysed by the Jharkhand Mukti Morcha bribery scandal.
The PMO has over the years expanded its role in administration, monitoring and supervision and covers many areas outside the PM’s portfolio. It periodically issues directions on matters as varied as foreign policy, global climate negotiations, and allocation of electromagnetic spectrum. All these should be brought under the Lokpal’s scrutiny with adequate safeguards to rule out frivolous complaints.
The PM’s authority should not be wantonly weakened – unless a strong prima facie case of corruption, or misjudgement leading to defrauding of the exchequer, is established. The Lokpal’s scrutiny should cover the scope for corruption contained in policies initiated or shaped by the PMO.
There is a good case for excluding the higher judiciary from the Lokpal’s ambit, and subjecting it to the proposed National Judicial Commission.
Team Anna would like the comptroller and auditor general and the chief election commissioner to be part of the Lokpal selection committee, in addition to the PM, the speaker, leaders of the opposition in both houses of parliament, the home minister, senior bureaucrats, etc. This should prove no great obstacle.
The Lokpal should also be able to recommend disciplinary proceedings against corrupt bureaucrats once their guilt is established.
However, Team Anna should not see the Lokpal’s office as a countervailing force to the government or a permanent supervisory authority. That simply doesn’t make sense in a democracy, where the executive has its autonomous function, subject to checks and balances, and to the overall separation of powers.
Team Anna is completely wrong to demand a huge budget for the Lokpal – one-quarter of the government’s revenues.
The committee’s civil society members mistakenly exaggerate the Lokpal’s anti-corruption role. The Lokpal would come into the picture typically after corruption has already occurred. But to pre-empt, prevent and control corruption, it is necessary to look at many places, especially where corruption affects the poor.
Corruption doesn’t occur primarily, as Team Anna holds, because there’s a “lack of an independent, empowered, ... anti-corruption institution†, but for other reasons. These include a neoliberal economic policy regime that encourages privatisation of common property resources through sweetheart deals and a politician-bureaucrat-businessman nexus; the rise of greedy entrepreneurs; an increasingly compromised civil service; poorly monitored public service delivery programmes; and a dysfunctional justice delivery system.
Correcting these will need administrative reform, social audits of important programmes, effective grievance redressal, transparency in appointments – and new laws, including some on judicial accountability, protection of whistleblowers, and rights to public services. No less important is reform of the police. Only 11 states have legislated the Police Commission-recommended new police act.
These measures will promote accountable governance, reduce the scope for diversion of public resources, and prevent and punish corruption. Only enforceable entitlements to public services can eliminate the scope offered by discretionary powers and foster accountability and responsibility on the part of government functionaries.
People like Anna Hazare and Baba Ramdev do not grasp the roots of corruption. In fact, Ramdev dangerously oversimplifies and distorts the issue in his booklet Hamare Sapnon ka Bharat: “These corrupt, dishonest people and thieves (ministers) neither practise yoga, nor accept spiritualism ....†Governments don’t enact good anti-corruption laws “[because] the mothers, sisters and daughters of cabinet ministers ... are never raped, nor do they and their families have to eat adulterated food, nor is the money lost in corruption theirs.â€
Ramdev’s fast reduced the corruption issue to a farce and discredited him. Hazare has threatened another fast from August 16 onwards. But he should understand that fasts can blackmail. His one-man anti-corruption crusade cannot bring about structural change.
The well-meaning individuals in Team Anna must understand that their self-appointed civil society group lacks representative character or public accountability. Legislation is a function of elected legislators, not civil society groups. They should make suggestions and recommendations to lawmakers. But they cannot replace them, nor threaten to take to the streets unless all their demands are accepted.
Fighting corruption is a priority, but this must be done in ways that strengthen democracy without creating new unaccountable power centres. One can only hope that Team Anna’s adversarial posture – necessary in such contestations – doesn’t blind it to this reality. The government too should understand that its legitimacy is at stake. It must act in good faith in drafting an effective Lokpal law.
Praful Bidwai, a former newspaper editor, is a researcher and peace and human-rights activist based in Delhi.
