Sunday, August 28, 2011

The many levels of corruption

With the government having agreed to introduce the Jan Lokpal bill in the Parliament for discussion, along with other civil society versions; and Anna Hazare holding his fort lest the government stages another flip-flop, it would be reasonable to assume that sooner or later India will be having an ombudsman, rather a committee of them. It is still early to tell, however, to what extent their powers may pan out. Of course, the bill should have the tooth to monitor and fight corruption. Yet, it should maintain the sanctity of the Constitution’s basic structure lest the teeth evolve into fangs.

For the sake of this post let us assume that the basic principles of the Jan Lokpal bill (the version put forward by Team Anna) have been adhered to and the ambiguous bits have been amended as the bill is passed by both Houses.

Moving beyond, it wouldn’t be unwise to ponder about the effectiveness of a Lokpal in eliminating corruption and thus ushering India to a new level of social development. For the same purpose it is necessary to distinguish the different levels of corruption. This would have been done to death during the various meetings and debates of the different drafters of the bill(s); and may be considered again in the Parliament. However, it is always worth revisiting.

1) Corruption in state sponsored welfare schemes

Rajiv Gandhi famously estimated that only 15 cents of every dollar spent on the poor actually reached them [Source]. This figure was later revised down to 5% by commentators. The welfare schemes include poverty alleviation, employment generation schemes as well as development of urban and rural infrastructure.

Improved transparency through RTI, ability to file charges and initiate prosecution, through the Lokpal, against those who reroute part of the fund and whistleblower protection together may serve potent in ensuring maximum benefit for the target population. It would be extremely heartening if news like this became more commonplace. Even if 20% of the welfare fund is reassigned to run the Lokpal machine and other ‘feedback and monitoring’ mechanisms, 80% reaching the poor is still a better state of affairs than the fate that awaits majority of the fund currently.

2) Lobbying by private interests for public resources

Illegal mining contracts, the 2G spectrum scam and the like would fall in this category. The Lokpal, empowered to initiate prosecution in a special court, can be seen to play a role in keeping a check on vested business interests and favoritism. High-level corruption may be dealt with but society will still be held back.

Liberalization post 1991 has done wonders for many sections of the Indian population. With rapid growth and a burgeoning middle class, ideally it shouldn’t be long before its benefits percolate to every section of society. However, the marginalized are still stuck at the lower rungs of economic development and in some cases their positions have even regressed. Wouldn’t it be daft to believe that this is due to corruption alone and eliminating it would magically raise the under-privileged from the clutches of poverty? When governments along with private parties use dubious land acquisition laws [1] to violently [2] affect the lives of some sections of the population, in the name of development, it is not always illegal though questions can be raised of the ethics. This is just one example of how outdated laws still strangle society. Looking beyond the Lokpal, social and economic reforms are a must to have further and sustained socio-economic development in India.

3) Graft to escape red tape inconvenience

During the special session of the Parliament on 27th August, the leader of the opposition, Sushma Swaraj rightly pointed out that though corruption higher up the administrative chain angers the common man, it is the one that prevails in the lower bureaucracy that puts him under great distress. Delays in obtaining a passport, a ration card, a driving license or a voter ID is what affects him more than the 2G spectrum scam or the CWG scam. Thus, strong monitoring of the lower bureaucracy along with the implementation of a citizen’s charter in all government offices is of extreme importance. As mentioned in the Hindu editorial a grievance redressal system (along with a citizen’s charter) is “a progressive idea whose time has come.”

However, it is worth remembering that including the lower bureaucracy under the ambit of the Lokpal (along with the higher judiciary, elected representatives, the PM Office and other high-level bureaucrats) may result in a tremendous volume of work on the shoulders of one body. There is, thus, merit in the NCPRI argument that the CVC should be strengthened to deal with the lower bureaucracy [Source]. After all, decentralization may increase administrative efficiency.

4) Corruption for mutual benefit with no perceived third party loss

Not all corruption at the lower level is at the fault of the government servants. The common man in India today is more than willing to part with some of his hard-earned money to escape fines for parking, speeding and other traffic violations, to travel ticketless in buses and trains, to escape land and property tax, and to obtain an admission for his child in a reputed  school/college in order to go one up on his neighbor’s son/daughter. At this level corruption is of mutual benefit and, in public perception, does not directly affect a third party. It is worth remembering that it is this mentality that legitimizes corruption at all levels. After all, government servants don’t fall from the sky. No anti-corruption agency can tackle this type of corruption; after all, who is going to complain? What is required is a change in public perception and a widespread mentality of civic sense. The movement led by Anna Hazare, for all its flaws, has managed to shake some out of their stupor. This is undoubtedly a good thing. Yet, there are many who do not consider this ‘harmless’ corruption to be a danger to society and it won’t take long for those awake to go back to sleep. With a sleeping public, corruption will eventually find a way to percolate into anti-graft machineries.

One of the problems of a successful movement is that the people may end up believing that they have done enough (not unlike what Slavoj Zizek says herethough in a different context) and settle back into their old ways. This mentality should not set in. Sustained public vigilance and further structural and economic reforms are, thus, important if India has to rise considerably in the Transparency International ranking.

[1] “People who argue that the act is draconian claim that a number of projects with no public purpose attached, as in the case of SEZs, usurped land from property owners, with the help of the Land Acquisition Act, at what is claimed as, well below the market value of these properties. It is argued that, even in the case of projects that are genuinely for public purposes, there is a considerable difference between the market value of the property and the value that the land acquisition officer pays the land owners. It is also argued that the relocation and rehabilitation of land owners displaced by the actions of the act, is not followed up adequately, and that this is not covered comprehensively in the framework of the act. A notable instance of opposition to land acquisition, through the land acquisition act, is the  Nandigram violence incident.” - Wikipedia (Land Acquisition Act, 1894)

Land lost, Singur farmer said no to compensation, commits suicide -

“Over 80 per cent of the Scheduled Tribe (ST) population works in the primary sector, with 45 per cent being cultivators and 37 per cent agricultural labourers. Land represents the most important source of livelihood, emotional attachment and social stability in tribal communities. The alienation of tribal land is the single most important cause of pauperisation of tribals, rendering their vulnerable economic situation more precarious.” - The weapon of empowerment, M. Hamid Ansari, Vice President of India (2010).

[2] “The Adivasis of Chhatisgarh - Victims of the Naxalite movement and Salwa Judum campaign”, Asian Center for Human Rights (2006).

Wednesday, August 24, 2011

Separation of powers vs. the Draft Jan Lokpall bill

Based on certain clarifications I obtained elsewhere, I am making changes to the post (highlighted in black).

According to Wikipedia, “the separation of powersoften imprecisely used interchangeably with the trias politica principle, is a model of governance of a state. Under this model, the state is divided into branches, each with separate and independent powers and areas of responsibility so that no one branch has more power than the other branches. The normal division of branches is into an executive, legislature and judiciary.”

The conferment of power in a single body leads to absolutism. “Power corrupts and absolute Power tends to corrupt absolutely” is attributed to Lord Acton. Thus, the doctrine of separation of powers is considered important as a check against tyrannical rule. The purpose is to diffuse the authority of the State to prevent absolutism and to “allocate each function to the institution BEST suited to discharge it.” [Source]

It can be argued that this doctrine is not applicable to India in its strict sense. Separation of Powers, in its pure form, can only be seen in a presidential form of democracy. So, it’s quite evident from the Constitution that India, being a parliamentary democracy, does not follow an absolute separation. Instead, the democracy functions based upon a fusion of powers. Here, a close co-ordination among the three principal organs of the State is unavoidable. “Thus, every organ of the government is required to perform all the three types of functions. Also, each organ is, in some form or the other, dependent on the other organ which checks and balances it.” An example of this can be seen in how Cabinet ministers are part of both the executive and the legislature. [Source]

However this does not mean that the doctrine is not followed at all. Various Supreme Court rulings, most notably Kesavananda Bharati v. State of Keralahave upheld that maintenance of the separation of powers is comprised in the basic structure of the constitution. In essence, the notion is that, in light of growing administrative challenges, though an organ of the State can delegate responsibilities to another, with regard to the basic constitutional functions of each of these organs the sanctity of the doctrine of separation of powers should be maintained. This keeps in mind the purpose of such a doctrine, where each function is allocated to the institution BEST suited to discharge it.

Keeping the above points in mind, I would like to highlight a few clauses in Version of 2.2 of the Jan Lokpal Bill, that seem to violate the constitution’s basic structure. I am no authority in this matter. So, please, correct me if I am wrong, and if the clauses I’ll mention in a while have been modified in the newer versions of the bill.

Proponents of the bill have said that it is important to bring the judiciary under the ambit of the Lokpal. No one is above the law. This I agree with, provided what Arvind Kejriwal says at the start of this interview is true. He mentions that the ONLY change from the current system that the bill envisions is the ability to file an FIR against any judge without prior approval of the CJI. This is important in a strong Lokpal bill. Similar points have also been made here.

It is also said that "the powers of Lokpal are limited to investigation, collection of evidence and prosecution. The Lokpal can bring a case to the court, and the judge will then decide on the basis of the presented evidence whether the person is guilty" [Source]. If this spirit was unambiguously spelt out in the bill, I believe it has all the makings of a strong yet democratic anti-corruption system.

Therein lies the problem. There seem to be a few contradictory clauses in the bill (Version 2.2). Take these instances. Again, correct me if I am wrong, and the following clauses have been modified in the newer versions of the bill.

1) Section 27.2
" proceedings or decision of the Lokpal shall be liable to be challenged, reviewed, quashed or called in question in any court of ordinary Civil Jurisdiction."

What decision is the bill talking about here? Can the Lokpal impose punishments? If so, however minor the punishment may be, this is akin to handing judicial powers to the Lokpal. That goes against the separation of powers envisioned in our Constitution.

Quasi-judicial powers akin to what policemen have (like imposing fines) and other administrative punitive measures may be handed to the Lokpal without affecting the integrity of the Constitution. This is in accordance with the 'delegated responsibility' argument. However, all the decisions of the Lokpal should be subject to judicial review in the High Courts and Supreme Court. It seems that "court of ordinary civil jurisdiction" in Section 27.2 refers to a lower court. This has to be further clarified.

2) Section 8.2
"The Lokpal, after getting such enquiries and investigations done as it deems fit, may take one or more of the following actions:
a. Close the case, if prima facie, the complaint is not made out, or
b. Initiate prosecution against public servants as well as those private entities, which are parties to the act.
c. Recommend imposition of appropriate penalties under the relevant Conduct Rules provided that if a government servant is finally convicted under the Prevention of Corruption Act, the penalty of dismissal shall be recommended on such government servant.
d. Order cancellation or modification of a license or lease or permission or contract or agreement, which was the subject matter of investigation.
e. Blacklist the concerned firm or company or contractor or any other entity involved in that act of corruption."

What are (d) and (e) if not a form of punishment? Shouldn't that be the prerogative of the court? Or, does the Lokpal do this only AFTER the court has given a verdict? Or, can the court repeal this decision of the Lokpal if the accused is reprieved? (Section 27.2 (1, above) says that the court cannot quash a decision of the Lokpal).

Administrative punitive measures are fine. Executive bodies are allowed this within the Constitution, provided, they have no immunity from judicial review. Are (d) and (e) administrative punishments? That is debatable.

3) Section 8.5
"Orders made by Lokpal under sub-section (2)(c) of this section shall be binding on the government and the government shall implement it within a week of receipt of that order."

Again, if it is the court that gives the verdict, what Lokpal orders (when read in conjunction with (2)(c)) are being mentioned here?

Administrative punitive measures, again. But what exactly is meant by an administrative punitive measure should be included in the draft, in my opinion. As always, I am not competent enough to comment on matters of law and do correct me if I am wrong.

4) Section 10.2
"For the purpose of any such investigation (including the preliminary inquiry) the Lokpal shall have all the powers of a civil court while trying a suit under the Code of Civil Procedure, 1908 , in respect of the following matters, namely:-
(a) Summoning and enforcing the attendance of any person and examining him on oath;"

Why would a non-judicial body examine someone under OATH? Can the CBI/Police do this?

5) Section 10.3
"Any proceeding before the Lokpal shall be deemed to be a judicial proceeding with in the meaning of section 193 of the Indian Penal Code."

What does that mean?

6) Section 13A
"Special Judges under section 4 of Prevention of Corruption Act: 
(1) On an annual basis, the Lokpal shall make an assessment of the number of Special Judges required under section 4 of the Prevention of Corruption Act 1988 in each area and the Government shall appoint such number of Judges within three months of the receipt of such recommendation.

Provided that the Lokpal shall recommend such number of Special Judges so that trial in each case under this Act is completed within a year.

2) Before making any fresh appointments, the Government shall consult the Lokpal on the procedure to be followed in selection to ensure the integrity of the candidates selected. The Government SHALL implement such recommendations.”

Doesn’t this in essence give the Lokpal complete authority in selecting the special judges? Doesn’t that sound like an encroachment into judicial powers?

Apologies. Here, it seems like I made a mistake. Here's a part of the clause again. "the Government shall consult the Lokpal on the PROCEDURE to be followed in selection to ensure the integrity of the candidates selected". I seem to have missed this in the verbosity of the draft. So the Lokpal can only recommend the number of judges in the special court and the procedure to select them. They can't recommend judges per se. Whether this too is an encroachment into judicial autonomy or not,  is debatable.

One other thing, I don’t think it is the Government that appoints judges. According to the Constitution that is the prerogative of the President or the respective Governor. Correct me if I am wrong.

All-in-all, the bill does not clearly specify how the trials will be conducted. It is not clear if the Lokpal has absolutely no judicial powers. There are many more clauses like the above that warrant a healthy debate. This debate is essential before passing the bill and thus, the August 30th deadline is unreasonable (and undemocratic if it stifles this debate). There are some genuine concerns about the bill out there as well and, unfortunately many of these are getting lost in the posturing that these concerns are not "well-intentioned".

It is easy to dismiss all these as mere technicalities. Quoting Shashi Tharoor “we must do the right thing but we must do the thing right” [Source]. But, then again, as someone commented here, “it is not necessary to know all the technical details of the bill.” That’s half the problem with the way the movement is proceeding now.

I’ll conclude this piece by reiterating my sentiments.
Do I want a strong and independent Lokpal to fight corruption? A resounding, yes.
Do I want the toothless government version? No
Do I want the ambiguous and in some ways unconstitutional ‘civil society’ version? That’s a no, too.

What’s required is a healthy debate to introduce more clarity in the Jan Lokpal bill. Once there is an atmosphere for healthy debate, there no longer need to be the fear that the debate will go on indefinitely and necessary actions will be stalled. I still have faith in parliamentary democracy.

Thanks for your time.

PS: Of the clauses mentioned above, only point 4 remains in version 2.3 of the draft. Now that the Parliament has passed a resolution agreeing to the key demands of Anna Hazare and it is very likely that we would sooner or later have a Lokpal, here is a new post on the different levels of corruption.