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 can’t 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 don’t take multi-pronged approach to fight corruption because-

a.    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 can’t 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 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 can’t get it done, can an organization like Lokpal get it done?    

d.    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.

e.    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.

f.     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.

g.    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, people’s participation and by gaining the people’s confidence and not through any other Institution.     

h.    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.

i.      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 don’t fear the CBI, who don’t care for the Enforcement Directorate, who are least bothered about the Income Tax, who don’t 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.                   

Friends,

These days a very large number of misconceptions and half-truths are being propagated through certain quarters. Here we present the first myth and 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.

Amitabh

# 94155-34526

Nutan

# 94155-34525

First Myth- Political Parties don’t want strong Anti-graft laws

These days a trite has come into existence-“Political Parties don’t 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 don’t 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.

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.

http://irdsindia.com/Lokpal%20vs%20Corruption%20%28Hindi%29.htm