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How to overcome Lokpal drafting committee impasse

June 24, 2011 20:59 IST

The roller-coaster ride of the government-civil society joint drafting committee on the Lokpal (ombudsman) Bill has ended in a draw, but left both sides badly injured. Whether the tie will be broken when they present their separate recommendations to a proposed all-party committee in July remains an open question.

Yet, this is a good time to draw up a balance-sheet of the government's first-ever effort to take on board civil society concerns on fighting corruption.

The government decided to set up the committee because it panicked at the response that Anna Hazare's fast was drawing from the middle classes, which could "get out of hand". So great was its concern to create a safety valve through the committee that it gave 50 percent representation to non-government members. If the government started with bad faith, Team Anna too tarred all politicians with the same bribe-soaked brush and questioned the government's intentions.

The committee debate was bound to be fractious. It was also accompanied by abuse and accusations. The shadow of Baba Ramdev's fast, and the government's gross mishandling of it, hung over the Committee's deliberations.

That they resulted in at least partial agreement in nine rounds of meetings is an affirmation of the value of debate and reasoning on public policy issues.

There are not only substantive differences between the committee's two components, but also differences over the area of agreement. Yet, 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.

A precondition for this is that the government doesn't scuttle the debate and the Congress party doesn'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 when its government's credibility stands badly battered by numerous scams, the latest -- and one of the greatest -- involving the padding up by $6 billion the capital expenditure claimed by Reliance Industries on Krishna-Godavari gas, at public expense.

So, assuming the Congress plays clean, how should the government and Team Anna alter their Lokpal Bill drafts? The main differences pertain to the inclusion of the prime minister's office and the higher judiciary under the Lokpal's ambit; the Lokpal's appointment and removal; funding; putting the Central Bureau of Investigation's anti-corruption wing under the Lokpal; the term of punishment for corruption; and extending the Lokpal's ambit to the conduct of MPs in Parliament.

Some matters have been sorted out, including the size of the Lokpal team (11 members) and a separate investigation wing for the Lokpal. The government agrees the Lokpal can prosecute public servants without prior government sanction.

The government insists that the prime minister should be excluded from the Lokpal's ambit. At maximum, the Lokpal would receive complaints against the PM, but defer investigation until s/he demits office. In support, it cites the report of the National Commission to Review the Working of the Constitution (2002) set up by the Bharatiya Janata Party-led National Democratic Alliance, 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."

There is merit in this argument. The Lokpal should not destabilise the government or make the PM dysfunctional. But whether a mere investigation would do so is questionable. 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 direct 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, allocation of S-band electromagnetic spectrum, licensing of 2G telecom services, etc.

All these areas 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 misjudgment leading to corruption or 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. This will avert a potential conflict of interest with the Lokpal, who must petition the Supreme Court in certain cases.

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 government should also consider how to bring corrupt bureaucrats under the Lokpal's purview. The Lokpal should be able to recommend disciplinary proceedings against them once their guilt is established.

However, Team Anna must also show some flexibility. It should not see the Lokpal 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 own autonomous function, subject to checks and balances, and to the overall separation of powers.

Team Anna is totally wrong to demand a huge budget for the Lokpal -- one-quarter of the government's gross revenues --, and to insist on a life sentence for corruption. 

The committee's civil society members are mistaken in exaggerating the Lokpal's role in fighting corruption. It's hard to accept that "a major reason for … rampant, widespread corruption is the lack of an independent, empowered, and accountable anti-corruption institution that can … credibly investigate complaints of corruption …".

Corruption is widespread largely because of other reasons, including an economic policy regime that encourages privatisation of common property resources through sweetheart deals and a politician-bureaucrat-businessman nexus; the rise of super-greedy entrepreneurs; collapse of the integrity of the civil service; poor monitoring and supervision of important public service delivery programmes; and a dysfunctional delivery justice system.

The Lokpal is no silver bullet. S/he would come into the picture typically after corruption has already occurred. But to stop, prevent and control corruption, it is necessary to look at many places, especially where corruption affects the poor. This will need administrative reform, social audits of important programmes, grievance redressal, and transparency in appointments -- and new laws, including a Judicial Accountability Bill, Protection of Whistleblowers Bill, and Rights to Services Bill. 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. It's only when we create enforceable entitlements to public services that we can eliminate the scope offered by discretionary powers and the sheer bullying authority of the local constable over the vegetable vendor or paan-bidi shopkeeper. This will help 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 …. … Every month these dishonest people loot Rs 1.5 lakh crore …." 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."

With his fast, Ramdev reduced the whole issue to a farce. He continued the fast after agreeing to call it off. He got badly discredited. The government didn't cover itself with glory either. Hazare has threatened another fast on August 16. He should understand that fasts can acquire a blackmailing character. He cannot continue with his one-man crusade against corruption and hope to bring about structural change.

More generally, Team Anna must understand its own limitations. It has well-meaning individuals. But at the end of the day, it is a self-appointed civil society group without a representative character or public accountability. Drafting legislation is not one of civil society's normal functions. That properly belongs to elected legislators. Civil society groups can make suggestions and recommendations to lawmakers. They cannot replace them, nor threaten to take to the streets unless 100 percent of their demands are accepted.

Fighting corruption is a priority. But it must be fought in ways that strengthen democracy without creating new unaccountable power centres. One can only hope that Team Anna's adversarial posture --natural and necessary in such contestations -- does not blind it to this reality. The government too must understand that its legitimacy would be undermined if it betrays its promise to act in good faith in drafting an effective Lokpal law.

Praful Bidwai