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Why I oppose the Jan Lokpal bill

Last updated on: June 17, 2011 09:01 IST

Image: Civil society members Anna Hazare and Arvind Kejriwal after attending a meeting of the joint drafting committee of Jan Lokpal bill in New Delhi
Photographs: Parivarthan Sharma/Reuters Colonel Dr Anil Athale (retd)

The whole approach of the civil society activists is legalistic, with an unbounded faith in laws as cure for all. In India we have a plethora of laws but very little law and order. It is essential that any solution for corruption must involve political scientists, management experts, administrators in order to work out laws and institutions that work, says Colonel Dr Anil Athale (retd)

Before tackling the main subject one wishes to make a sincere request to Anna Hazare and Baba Ramdev. If they are thinking of using fasting as a weapon to achieve their aim -- be it Jan Lokpal or return of black money, they the are up against a wall.

Mahatma Gandhi did not go on a fast to achieve independence! For that he launched a mass campaign and got the people on his side. The only way such major changes can be brought about is if there is national level awakening. There are no short cuts to revolution, even a peaceful one.

The adversary, in this case the corrupt system, is utterly without any kind of conscience or morality. Many of the methods of Gandhi worked because the British, all said and done, did have a democratic spirit (Edmund Burke had denounced British colonialism in their Parliament as early as April 17, 1783).

Colonel Dr Anil Athale (retd) is co-ordinator of the Pune based Initiative for Peace and Disarmament.


Futility of fasts!

Image: Yoga guru Baba Ramdev, lying on stage, gets a medical check-up during his fast against corruption in Haridwar
Photographs: Reuters

The leaders of anti-corruption movement must remember that while Gandhian methods worked against the British, they failed in Goa in 1950s against the Portuguese.

Let me hasten to add that unlike the politicians opposing the anti-corruption movement, this author has tremendous respect for both Anna and Baba Ramdev.

In case of Anna, I had the privilege of close contact with him in 1995/96 when our group launched project Hope in Kashmir (essentially trying to get computers to Kashmir schools, getting modern horticulture technologies to the farmers, etc.) to better the lives of Kashmiri citizens.

At the suggestion of the Gandhian industrialist late Navalmal Firodiya, INPAD had got in touch with Anna to see if the success of his Ralegaon Siddi model could be duplicated in Kashmir. All these garrulous politicians who are bad mouthing Anna must visit his village to see why people have faith in him.

Baba Ramdev must be credited with taking yoga and pranayam to the masses. Though I have never had the privilege of meeting him, I and many like me are eternally grateful to him for this. Thanks to his yoga lessons on television, my late parents enjoyed good health even in their last years in their 80s. Ramdev's efforts have touched many hearts in the country.

But despite my great regard for both of them, I am opposed to the Jan Lokpal bill that they have been championing.

Lokpal will remain a toothless tiger

Image: Supporters of Anna Hazare shout during a protest against corruption in New Delhi
Photographs: Reuters

The first and foremost objection is that by wanting to put the bureaucracy, politicians and judiciary under the Lokpal, there is a clear case of overload.

In addition the Lokpal (as existing Lokayukta in many states) is going to be an investigative body, for punishment it is again dependent on the judiciary and the 'weak' anti-corruption laws.

In short what the Jan Lokpal bill seems to do is create a 'super judiciary' or a duplicate judiciary to deal with corruption. Even the most powerful Lokpal without a strong anti-corruption law is a toothless tiger.

Not only will the envisaged Lokpal be following the judicial process (investigation-evidence-preparation of charges) but also judicial principles. It must be appreciated that the judiciary works on a principle 'let 99 guilty go unpunished but one non-guilty must not be punished'.

This is an absolute principle and gives strength and legitimacy to the judiciary. While in case of the executive or the administrator, the principle is 'greatest good of the greatest majority'.

Thus a degree of tension between judiciary and executive is inherent. What seems to have happened in case of India is that people have lost faith in the executive.

The argument for putting PM under Lokpal is weak

Image: Prime Minister Manmohan Singh
Photographs: Reuters

The demand to put higher judiciary under Lokpal is also untenable since that would make Lokpal virtually the 'fourth pillar' of the state after legislature, executive and judiciary.

In no country where the institution of ombudsman exists, is he the all powerful czar. The argument for putting the chief executive (prime minister) or chief justice under the Lokpal is weak.

The heads of the three pillars of the state -- judiciary, executive and legislature, must not be subservient to the Lokpal. The Members of Parliament are accountable to people. That does not mean that for five years they are immune to scrutiny.

But the forum to hold MPs accountable cannot be an 'appointed Lokpal' as that would be against the democratic principle. The answer for that is NOT Lokpal but a mechanism like the right to recall.

The unease and the haste of 'civil society' to push for the Lokpal bill is understandable since the matter has been hanging fire for last 40 years! But we need to be cautious and it should not be foisted with even greater evil.

The story of the anti-defection law is a stark example of how a well-intended measure can boomerang. The story is worth recalling.

Lokpal can turn into a monster bigger than elected Parliament

Photographs: Reuters

In the 1980s there was great public unease over the phenomena of 'aya Ram-gaya Ram' kind of defections and horse trading, especially at the state level.

So a strong anti defection law was passed that made defiance of party whip an offence leading to disqualification. What this law did was to strengthen the 'party' bosses.

In case of most Indian political parties, these are essentially 'family concerns' where a family dominates the party as much due to its political clout as well as the funds it controls.

This has made the elected representatives virtual slaves and led to development and thriving of dynastic parties with the exception of the Communists, the Bharatiya Janata Party and the Janata Dal-United!

Since we fashioned our democracy on the British Westminster system, we have eliminated the potent democratic safety valve of 'back benchers' in our Parliament. The anti-defection law while partially curing the problem of defection has given birth to party dictatorship and bhai-bhatijawad.

The danger in present Jan Lokpal is that it could be so overwhelmed by overload that it becomes ineffective or in any case a toothless tiger without a strong anti-corruption law or becomes of monster that becomes bigger than the elected Parliament or prime minister!

The current emphasis on lawyers is a recipe for disaster

Image: Civil society representatives in the joint Lokpal bill drafting committee Prashant Bushan (left) and Shanti Bhushan (right)

Another example is the United States. When during the ill-thought prohibition era, the mafia virtually ruled, the Americans created the Federal Bureau of Investigation under J Edgar Hoover.

In time Hoover collected so much power under himself, including the 'dirty tricks' department, that the newly elected Presidents called on him and not the other way round!

The whole approach of the civil society activists is legalistic, with an unbounded faith in laws as cure for all. In India we have a plethora of laws but very little law and order.

It is essential that any solution for corruption must involve political scientists, management experts, administrators in order to work out laws and institutions that work.

The current emphasis on lawyers and legal experts is a recipe for disaster.

What is to be done now?

The current approach to corruption via the Jan Lokpal is essentially based on creating institutions to punish the corrupt. No thought seems to have been given on measures to prevent corruption (prevention is always better than cure). In a nutshell, the preventive measures would involve,

Firstly, electoral reform, which will include state funding and two-stage elections -- a preliminary round and a run off between first two candidates.

Secondly, a strong anti-corruption law whereby the burden of proof to show that the wealth and property that is disproportionate to known sources of incomes be put on the accused. Also once such wealth/property is detected, it should be confiscated/sealed once a person is convicted and during the pendency of appeal.

This will make sure that the rich and powerful have no incentive to use judicial delay.

Thirdly, right to recall of elected representatives.

Fourthly, separate judicial accountability commission to deal with judicial corruption, directly under Parliament.

And lastly, revision of tax and other laws to remove discretionary powers.

The Jan Lokpal should confine itself to the bureaucracy only. After all the corruption indulged in by the ministers is implemented through the bureaucracy. By bringing the bureaucracy under the Lokpal, we will be able to neutralise the instrument of corruption.

A word on the money stashed abroad. It is necessary to study how countries like the US or Germany obtained data from Swiss banks. What Germany can do, a world's emerging economic power can certainly do as well.

If this is not being done then the conclusion is inescapable that the government and the ruling party have something to hide!