Cancer of corruption

Can Anna Hazare's Jan Lokpal Bill root out the menace of corruption?
India Today

Dhiraj Nayyar, Padmaparna Ghosh and Shafi Rahman     Edition: April 25, 2011

Anti-corruption activist Anna Hazare at Jantar Mantar

The real battle for the future began the moment Anna Hazare sipped lemon water at Delhi's Jantar Mantar to break his fast on April 9. The four-day fast started on a low-key note, but exploded into a nationwide exhibition of anger, as a diminutive, unknown Gandhian from Maharashtra turned into a giant icon, a heroic symbol of the hidden despair that had been swelling in the consciousness of an outraged nation. Spontaneous protests broke out in 450 cities and towns across India. The indifferent UPA government, seized by a rising panic, caved in within 98 hours, and accepted the demand for the creation of an independent Lokpal who would become India's guardian against corruption. It did not realize that this was only the start of a long battle for change.

Three people fasted, others staged a sit-in protest at Gandhi Park in Lucknow.

Minutes after Hazare broke his fast, lawyer and activist Prashant Bhushan who had played a key role in drafting the Jan Lokpal Bill, caught hold of fellow campaigner Arvind Kejriwal, the pioneering Right to Information activist, who was being swept away by the jubilant crowd and said, "It is time for direct democracy. We should meet to discuss it."

Citizens, famous or not, congregated at Town Hall in Ahmedabad.

Direct democracy, an idea floated in January 2011 by the Public Cause Research Foundation led by Kejriwal, and blessed by Anna Hazare, is next on the agenda. The activists believe that only radical institutional change can eradicate corruption from India. At the heart of the direct democracy campaign is complete decentralization. It goes much further than Panchayati Raj. The country will be divided into "areas", each consisting of only 3,000 voters. These voters will constitute the "Area Sabha". The area sabha will have complete administrative control over all civic services-schools, local hospitals, ration shops, and roads. The Area Sabha will have the right to demand financial resources from the Government. Crucially, the Area Sabhas will have punitive powers over government officials. They will have the power to appoint, dismiss and withhold salaries. All panchayats and local government bodies that exist now will be superceded.

Taxi drivers to celebrities,everyone was at Azad Maidan in Mumbai.

The other pillar of direct democracy is the right to recall elected representatives. This is meant to end the complacency that overcomes elected representatives when they are guaranteed tenure. Says Hazare, "Now after registering the vote, the hapless voter has his hands chopped off. After the polls, he will have no power. The right to recall will ensure that the voters will always remain powerful." The activists hope that this will end the complacency that overcomes elected representatives when they are guaranteed tenure.

Corruption rallies converged at Park Street in Kolkata.

Kejriwal wants these ideas translated into legislation. A first draft of what he calls the Nagar Raj Bill is ready. He is preparing to launch a mass campaign once the Lokpal Bill is passed. Says Kejriwal, "Hazare will lead this as well. Similar to the Lokpal campaign, we will go to the people, explain and build public opinion."

The ideas sound good in theory. Direct democracy is not a novel idea in the subcontinent. It has not had spectacular success. Ayub Khan, the first of Pakistan's military rulers, introduced "basic democracy" in 1959. He did not believe that Parliamentary democracy was suitable for the country. But he chose to empower local governments. Administrative units across the country were given powers to elect their own representatives who had significant decision-making powers, including the power to impose some taxes, at the local level. In the 1970s, Jayaprakash Narayan argued in favour of a "partyless" direct democracy. Much like the Hazare-Kejriwal plan, his idea was to empower the smallest unit of governance. In Narayan's case it was the Gram Sabha. India got some decentralization, but not direct democracy, with the constitutional amendment on Panchayati Raj passed in 1992.

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While decentralization may be desirable, direct democracy in its extreme version is utopian and has limitations in a large, pluralistic country like India. It has the potential to seriously destabilise governance as we know it. Politicians, worried about this unexpected show of strength from civil society have begun to close ranks. Said Digvijay Singh of the Congress, "Just like it is not proper to dub all voters as dishonest so is the case with politicians. I would like every such person who attacks politicians to contest elections." Said Samajwadi Party MP, Mohan Singh, "What was the compulsion of the civil rights activist to launch a movement bypassing parliamentary procedure?" Senior BJP leader L.K. Advani, who continues to support Hazare, struck a note of caution on his blog. "I am of the view that those who revel in spreading a general climate of disdain about politics and politicians are doing a gross disservice to democracy."

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The political class, particularly the government, must take the blame for letting civil society gain the upper hand. A complacent and arrogant Government had repeatedly ignored Anna Hazare's letters on the Lokpal Bill. The government was forced to act after crowds began to build up at Jantar Mantar and other venues across the country by the evening of 5th April. Over the next few days, the Government deployed law minister Veerappa Moily and lawyer-minister Kapil Sibal to talk Hazare out of his fast. He did not yield. On April 7, UPA chairperson Sonia Gandhi made a significant intervention when she publicly assured Hazare that his demands would have the government's "full attention" and appealed to him to end his fast. The Sonia Gandhi-led NAC is also in the process of studying the government's version of the Lokpal Bill. Two members of the NAC, Harsh Mander and Aruna Roy broke ranks with civil society to express "reservations" about the Hazare-led movement. Privately, members of the Congress party admit that the die was cast in Hazare's favour the moment Sonia made her statement. But Hazare was not going to give in to verbal assurances, even if they came from Sonia Gandhi.

Hazare received strong support from an unexpected quarter in the UPA. Union minister and Trinamool Congress MP Dinesh Trivedi offered to resign in support of Anna's cause. Said Trivedi, "It wasn't an emotional outburst. It all started with the Vohra Committee report, when it was clear that the official machinery was being run by the mafia. If that is the case, then we have no future."

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Finally, it was a letter from Moily to Prime Minister Manmohan Singh that settled the issue. Moily urged Singh not to make it a prestige issue and cited precedents of joint committees being notified in gazettes. On the morning of April 9, the drums began to beat and the chorus began to sing as Hazare broke his fast. A beleaguered government finally submitted to all the his demands and issued a notification for a joint committee of government and civil society to draft the Lokpal Bill.

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How important is the Lokpal Bill in the fight against corruption? Writing in this issue of India Today, N. Santosh Hegde, a former Supreme Court judge and currently Karnataka Lokayukta-he is also a member of the Joint Committee-says that the Bill will not end corruption, but will help control it. Hegde was part of a group of anti-corruption crusaders that included former CEC J.M. Lyngdoh, former CVC P. Shankar, then CVC Pratyush Sinha and activists Nikhil Dey, Shekhar Singh and Kejriwal who got together one afternoon in Delhi in August 2010 to prepare a draft of the Jan Lokpal Bill.

The purpose of the Lokpal Bill is to create an independent and empowered anti-corruption agency that has jurisdiction over all public officials. The devil lies in the detail. The key features of the government's version of the bill, rejected by Hazare, are:

•  The Lokpal will only be an advisory body.
•  It will not have any policing (including investigative) powers and will still depend on the Government's enforcement agencies to do its job.
•  It will have no authority to receive complaints against MPs, ministers and the prime minister directly. Those would have to be routed through the presiding officers of both houses of Parliament.
•  It will not take up complaints against the prime minister that involve foreign affairs, defence and security.
•  The selection committee for Lokpal will comprise of prime minister, vice-president, leaders of both Houses, leaders of Opposition, law and home ministers. 

Contrast these with the key features of the Jan Lokpal Bill drafted by civil society:

•  Lokpal is not an advisory body. It can investigate and launch prosecution
•  The anti-corruption wing of the CBI will report only to the Lokpal and act as its investigative arm
•  It will be allowed to initiate a probe suo motu, and can receive direct complaints from the public
•  It can take up complaints on any aspect of governance, including foreign affairs, defence and security
•  The selection committee for Lokpal will comprise of CVC, CAG, activists, journalists, winners of international awards and people with judicial background. 

International experience on independent anti-corruption agencies can provide a useful guide to the Joint Committee. The most successful experiments in independent anti-corruption agencies are from Hong Kong and Singapore. But perhaps the most instructive for India is the experiment undertaken in Indonesia, notorious for its corruption. The country set up an independent Corruption Eradication Commission (KPK) in 2002. The KPK has the right to investigate and prosecute and has powers to use covert surveillance. Between 2003 and 2009, the agency recorded a 100 per cent conviction rate in 86 cases. It helped alleviate Indonesia's image in the eyes of international investors. That is the conviction rate that the Lokpal, once in existence, must aspire to.

At the same time, the KPK's many problems hold important lessons. The enforcement agencies of the executive have repeatedly clashed with the KPK, going to the extent of framing false charges against KPK commissioners. Enforcement agencies in India are likely to have run-ins with an independent Lokpal, especially if they continue in their old mode of doing the bidding of their political masters. The rest of the CBI, barring the anti-corruption unit, will still report to the Government.

There is also the problem of capacity. The KPK, limited in its resources, has been unable to handle the huge number of cases that are referred to it. In India, the Lokpal will have to handle cases that range from 2G spectrum to an sho demanding bribes. Some of the burden will be shared once each state has its own Lokayukta. The real bottleneck may be in the judiciary. The Lokpal will have designated courts to hear its cases, but a stretched judiciary may not be able to provide the courts needed.

None of this means that the Lokpal should be abandoned. But it's important to recognise its limitations. The Joint Committee will begin to debate these issues on April 16. It has been presented with a deadline of June 30 to submit the draft bill. In the meantime, it must overcome the controversies that have engulfed it even before it starts work. On the very day that the membership of the committee was announced, Baba Ramdev, a prominent anti-corruption activist in his own right and a staunch supporter of Hazare until then, lashed out at the alleged nepotism in the appointment of both father Shanti Bhushan and son Prashant Bhushan. Ramdev wanted Kiran Bedi on board along with Hazare, Kejriwal, Santosh Hegde and one of the Bhushans.

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On the following day, the Government's chief troubleshooter Kapil Sibal, one of the five government nominees on the Committee along with Pranab Mukherjee, P. Chidambaram, Veerappa Moily and Salman Khursheed-the Government has deliberately chosen its top legal arsenal to combat the legal firepower that the Bhushans and Hegde bring to the civil society camp-tried to play down the importance of the Lokpal Bill by arguing that it will not help provide basic education and health. That prompted a backlash from Hazare who said that Sibal should resign if he thought the bill was of no importance. Sibal remains on the committee. Establishing trust between the two sides is a serious challenge. Anna Hazare's praise of NDA chief ministers Narendra Modi and Nitish Kumar for their honesty set alarm bells ringing in the Congress. Hazare is an apolitical figure who strongly condemned the Gujarat riots in 2002, but that hasn't stopped Congress party managers from spreading rumours about his links with the RSS and BJP. The Joint Committee faces the prospect of a long haul. If the Committee stalls, the Government faces the prospect of renewed mass protests.

The single biggest contribution of a Lokpal with teeth will be the demonstration effect it has on the corrupt. A significant number of high profile graft cases need to end in convictions.

The nation is fed up with corruption. There are enough laws and agencies-the Lokpal will be a welcome addition- to tackle corruption. What is needed is strong political will to let the agencies do their job, to let the law take it course, without delay. The political class needs to reform itself. It may be in its self-interest to do so. In Tamil Nadu, corruption is a major election issue. A recent India Today Opinion Poll had predicted that the incumbent DMK-Congress coalition, tainted by 2G, will be defeated. That prospect of further humiliation at the ballot box should prompt the UPA to act before it's too late. 

- with Priya Sahgal