CORRUPTION is not a new phenomenon in India although it has assumed gargantuan proportions in the 21st century. The earliest known treatise on statecraft and management of the economy, the Arthashastra, takes note of pilferage of funds due to the king as far back as the 3rd century BC. Strict punishment was prescribed for filching of royal dues and the death sentence was a certainty in cases involving large sums of money. Kautilya explains the inevitability of corruption by likening a tax collector to fish breathing under water; both would partake at least some quantity of the medium in which they found themselves. In exasperation, he laments that it may be possible to mark the movements of birds in the sky, but it is impossible to gauge the hidden intention of corrupt officials.

Two thousand years later under the East India Company, bribery and pilferage of public resources assumed new proportions. The very first Governor under the Raj, Lord Clive, and the very first Governor General, Warren Hastings, were tried for corruption in England during the 18th century. When the provincial governments were formed on the basis of limited franchise in the 1930s, newly appointed ministers of Indian origin were accused of indulging in corruption. Even Gandhiji burst out in 1939, saying: ‘I would go to the length of giving the whole Congress a decent burial, rather than put up with the corruption that is rampant.’

An anti-corruption law enacted a little before independence in 1947 was found to be highly inadequate through the first few decades of independent India. Despite replacing this law with a more stringent Prevention of Corruption Act in 1988, corruption has only grown and now affects every person from every strata of society who has the misfortune of seeking any entitlement, benefit or service from a government agency.

While collusive corruption designed to facilitate private gains from mismanagement or misappropriation or misallocation of public funds has inflated in terms of both volume and incidence with the opening up of the economy in the 1990s, it is coercive or transactional corruption that compels payment of bribe for inclusion of one’s name in the list of the ultra-poor or the issue of ration cards or provision of civic amenities and basic services such as water, electricity and telephony that robs the most populous and impoverished segments of society of their already scant resources.

 

The skyrocketing cost of contesting elections from panchayat to Parliament has been held to be primarily responsible for establishing a redistributive hierarchy of corruption involving the politician, bureaucrat, contractor, industrialist nexus, thereby turning the constitutional vision of socio-economic redistribution on its head. If corruption perception surveys are to be believed, no facet of governance remains untarnished by allegations of corruption, with the vulnerable and the disadvantaged suffering the most.

The deeply felt need to root out corruption from our body politic, culminating in the debate around the proposed anti-corruption law, has unfortunately become polarized in recent months. While the central government has presented a watered down (and in part dangerous) version of the Lokpal bill in Parliament, the India Against Corruption (IAC) Jan Lokpal bill, has proposed an all-pervasive, overburdened and potentially dangerous, leviathan. In effect, the misuse of power and authority is sought to be corrected through inexplicable faith in another, even more powerful, investigating authority that one hopes will not get compromised or corrupted simply because it is ‘independent’.

The National Campaign for People’s Right to Information (NCPRI) has, through extensive consultation within various segments of civil society in different parts of the country, responded to these two proposed bills by developing a set of principles that it believes should inform the crafting of any rational set of solutions to the problems of tacking people’s complaints of corruption and grievances against the administration. These principles are worth listing here.

First, that the Lokpal as an institution cannot be endowed with so much power to tackle complaints of corruption and people’s grievances alike that it becomes a super-power over all agencies of the state. Just as one panacea is incapable of healing all ailments, a single powerful institution (even if created at the central and state levels) with immense powers will not be able to tackle corruption and grievances at all levels of the administration, let alone find solutions to the millions of grievances that may pour in from all corners of the land.

The same objectives could be better achieved through a basket of collective and concurrent measures to tackle: (a) high level corruption involving politicians and senior bureaucrats; (b) corruption occurring at the lower levels of the bureaucracy; (c) corruption and falling judicial standards marking the judiciary; (d) people’s grievances about mal-administration and malgovernance; and (e) the issue of protecting whistleblowers, including RTI users and anti-corruption crusaders, from harm and victimization.

 

This basket of measures is informed by the following principles:

a) Solutions to the problems of corruption, lack of accountability and people’s grievances must be located within the framework of the Constitution and its basic principles and values.

b) A multiplicity of decentralized institutions, geographically and across levels, with appropriate accountability mechanisms, is key to avoiding the concentration of excessive power, especially unaccountable power, in any one institution or authority.

c) Irrational constraints that have so far plagued efforts to punish the corrupt, for example, seeking permission of the government to investigate or prosecute any public servant, must be done away with.

d) Institutions established to combat corruption or resolve grievances must also be accountable in the same manner as they seek to make others accountable.

e) Appointments to such institutions must be made in a transparent manner and their functioning must be reasonably transparent and at a minimum adhere to the regime of transparency established by the RTI Act.

f) All institutions must be given adequate power and resources to investigate and initiate prosecution in appropriate cases and circularity of oversight mechanisms must be avoided.

g) Lessons must be learnt from the experience of the implementation of flagship programmes like the MGNREGA wherever they have been effective as a means to assessing the performance of development programmes and redressing grievances in a bottom-up approach.

 

The institution of the Lokpal as envisaged in the two popular versions of the draft legislation have serious design flaws to even consider supporting them. It would be a travesty of justice if the Lokpal were to be created for investigating all senior functionaries of government except the prime minister or wait until he/she demits office to commence action over complaints of corruption. The arguments against the exclusion of the prime minister in the official version are not at all convincing as they fall foul of the principle of the rule of law and of according equal treatment to all persons by the law that underpins our Constitution.

Unfortunately the alternative proposed seeks to create a single structure at the central and state level, which will investigate charges of corruption levelled against a peon to the prime minister. This is clearly unmanageable, howsoever powerful an institution might be, as it will require the creation of a huge bureaucracy turning the Lokpal and the Lokayuktas into parallel governments.

 

We believe that if corruption anywhere is to be tackled seriously, it must be tackled in a specialized and targeted manner at the level that it does the most harm, namely at the policy level where macro decisions are made on a large scale about the allocation and utilization of resources and distribution of the permanent assets of the nation, ranging from tangible mines and minerals to the invisible spectrum for mobile telephony.

The Lokpal as an institution should be empowered to receive complaints of corruption against all ministers including the prime minister, all members of parliament, all Group A (Class I) officers, and any other public servant or private entity that may have colluded with the main accused in each case. The Lokpal and the Lokayuktas in the states, all created under one umbrella law like the RTI Act, will be responsible for investigating corruption charges against these different categories of public servants and initiating prosecution in the special courts established under the Prevention of Corruption Act.

It is also imperative to ensure accountability of the Lokpal itself as an institution. The chairperson and members may be removed by the President based on the findings of an inquiry conducted by the Supreme Court. A Lokpal and its counterparts, the Lokayuktas in the states, can combat corruption more effectively if their mandate is structured to be manageable.

While the official version of the Lokpal bill is silent on the role of the Central Vigilance Commission (CVC), an alternative version propagated by a segment of civil society seeks to subsume it within the institution of the Lokpal in much the same way as it seeks to seize the Central Bureau of Investigation in its entirety and convert it into an investigative arm of the Lokpal. For the very reasons explained above against turning the Lokpal into an unwieldy behemoth, we believe that the CVC needs to be retained as an agency for dealing with charges of corruption against the members of the lower bureaucracy. However, the CVC’s functioning is currently hampered by a lack of adequate powers and the compulsion of having to wait for the prior approval of the government to prosecute public servants, known as the ‘single directive’.

 

We have proposed that the CVC Act be amended in order to remove undue political influence on the appointments process and ensure that individuals with impeccable integrity and experience of combating corruption become vigilance commissioners. The single directive that acts as an obstacle to prosecuting officers above the rank of Joint Secretary must be done away with, as any investigation undertaken by an independent CVC should serve as a legitimate basis for prosecution of the accused if there are sufficient grounds. The CVC at the Centre and the vigilance commissions in the states can be mandated to look into allegations of corruption against officials and any colluding individuals and entities that are not covered by the Lokpal. This will ensure that the jurisdiction and work of both institutions remain distinct and within manageable limits.

A specialist cadre of investigators will have to be developed to assist both the Lokpal and the vigilance commissions in addition to their existing powers of utilizing the services of any public servant for this purpose. As vigilance matters are primarily about corruption and abuse of power, Parliament can make laws to cover the states as well. This is desirable because it will ensure uniformity of design, structure, powers and functions of such bodies and will also compel states that do not have such bodies to establish them within a specific time frame.

 

The judiciary has been vested with a special position in the constitutional scheme of governance to ensure its independence. Accountability of the judiciary is critical, but cannot be fashioned at the expense of its independence which is protected as a basic feature of the Constitution. To make the judiciary accountable to an institution that is essentially exercising the executive function of the state in the form of the Lokpal, with investigative powers over the political executive, elected representatives, as well as the bureaucracy, would cause structural damage to the system of checks and balances we must maintain. All over the world it is common practice for an independent mechanism to be established for tacking judicial misbehaviour. We must remember that corruption is a form of misbehaviour, but not all forms of misbehaviour constitute corruption.

The government has already introduced the Judicial Standards and Accountability Bill in Parliament to create a mechanism for receiving complaints from individuals against judges of the Supreme Court and the High Courts. Such a mechanism does not exist today and the only means of removing a judge for misbehaviour is through the long drawn route of impeachment. Unfortunately, the shrill debate on the Lokpal has failed to take into account the existence of this bill. Despite being weak, we believe that with suitable amendments the bill can be turned around into an effective law for dealing with corruption in the higher judiciary, along with other complaints of misbehaviour.

The judicial oversight mechanism can be constituted as a permanent body with some members drawn from the serving judiciary working full-time without attending to other court matters for the period of their appointment. A jurist and a non-government representative may be selected as non-judicial members of this mechanism by a committee comprising of the Vice President, the Prime Minister and Leader of the Opposition in the Lok Sabha in a transparent manner.

 

This oversight mechanism will investigate two kinds of cases: (i) complaints of physical or mental incapacity and all kinds of misbehaviour, including allegations of corruption received from individuals and (ii) references received from the President about the incapacity or misbehaviour of a judge subsequent to the initiation of impeachment proceedings in Parliament. The oversight mechanism must have the resources and powers to conduct its own inquiry into any allegation received against a judge in a time-bound manner.

The current bill does not cover the lower judiciary, which is under the administrative control of the respective High Courts in the states. It is at this level that people most feel the pinch and the cost of justice or the lack of it. Currently, the accountability processes for district judges and other civil and criminal judges are not well known in the public domain. Appropriate mechanisms need to be evolved for ensuring accountability and combating corruption in the judiciary at this level.

 

The NCPRI proposes a mechanism that would allow the public to directly and continually make the government accountable in terms of the functions it is supposed to perform, specifically with relation to its duties to the nation and obligations and commitments to the people of India. This would materialize through the establishment of grievance redress authorities to be set up at the district level, with public grievance commissions at the central and state levels with the following basic architecture:

1. To mandate the development of a clear and tangible statement of obligations of all public authorities, offices and public servants in relation to all their funds, and functions. This should be done by ensuring mandatory proactive disclosure under section 4 of the RTI Act.

2. Ensuring that grievances be redressed through a decentralized mechanism functioning in the areas in which grievances are felt and dealt with on a daily basis, while ensuring that every department is given a chance to sort out its internal failures whilst redressing grievances.

3. Ensuring that a complainant has multiple means of filing his/her complaints/grievances to the required authority. As a fallback, every block in the country must have a citizen’s information and support centre for facilitating the complainant in filing and pursuing the complaint.

4. Ensuring that an independent appellate body – the District Grievance Authority – is empowered to penalize and compensate and sort out all grievances within a month.

5. The state and central public grievance commissions will only function as supervisory and appellate bodies, except in relation to complaints against state or national level officials.

All these institutions can work effectively only if people come forward with specific complaints about corruption or abuse of power. For this to happen, an atmosphere of security needs to be created, which will ensure that a complainant will blow the whistle on corruption and wrongdoing without opting for silence as a safer option. The official Lokpal bill makes only marginal references to whistleblower protection, whereas the IAC version of the bill also burdens the Jan Lokpal with protecting the whistleblower without going into how this challenging task could/should be achieved.

 

The central government tabled a very weak whistleblower protection bill (Public Interest Disclosures and Protection for Persons Making the Disclosures Bill, 2010) last year. The NCPRI, along with several other civil society actors and government servants, made many recommendations to the parliamentary standing committee vetting the bill. The committee has forwarded a large majority of the recommendations advising the government to recast the bill, as it falls short of the standards necessary for preventing whistleblowers from being harmed physically or professionally.

An important measure finding place in the committee’s recommendations is the need for also protecting RTI users and crusaders against corruption and abuse of power from outside of the government machinery, alongside whistleblowers who are often employees of the same public authority where wrongdoing has occurred. With the murder of more than 10 RTI activists and users for daring to take on the corrupt – the most recent being of Shehla Masood in Madhya Pradesh – it is high time the state agencies hammered out a mechanism for protecting civic minded citizens and activists from harm’s way. The NCPRI has proposed that the scope of ‘wrongdoing’ covered by the whistleblower bill be expanded to include actions and omissions adversely affecting the environment, public health and safety.

Labour laws need to be tweaked in order to ensure that whistleblowers in the private sector are not harmed on account of exposing wrongdoing under this law. Wherever an RTI activist is injured or murdered, it should be the responsibility of the respective government and the information commission to ensure that all information sought by the victim be proactively disclosed in accordance with the provisions of the RTI Act. The seeds of this current movement lie in the effort to protect and encourage the ordinary citizen to expose and fight corruption without fear. The only hope of making anti-corruption mechanisms really work is by giving citizens a sense of confidence to fight injustice and the abuse of power. Even if the physical safety of ordinary people can be ensured, there is a lot that they would pursue on their own.

The NCPRI has proposed, as an outcome of several consultations, a set of measures that could simultaneously and collectively be adopted to prevent corruption at all levels, especially in high places, and to effectively redress grievances. The underlying principle invoked in this approach is that anti-corruption measures must equally abide by tenets of democracy, accountability and independence while operating within specialized guidelines and mandated frameworks. An institution erected, for howsoever noble an intention, must endorse its accountability towards the jan.