A Statement by the Asian Human Rights CommissionDespite corruption being rampant in the country, India still does not have an independent and credible functioning legislative and institutional framework to deal with corruption. In addition, there are several other issues like the reluctance and often inability of the investigators to undertake a proper and time-bound investigation, poor prosecution and enormous delays in the courts that render making a complaint against corruption meaningless and often a demoralising experience in India. Above all, external interference and influences, both in the form of political and non-political interventions is yet another curse that any action against corruption would normally face in India at the moment.
Mr. Anna Hazare’s fast, that started on 5 April and joined by hundreds of civil society groups across the country and abroad, and by even more number of ordinary individuals demands an end to the regime of corruption in India. A team of social activists, human rights defenders and ordinary people with extraordinary courage have come together and formed what is called India Against Corruption. The website of the group could be viewed at: www.indiaagainstcorruption.org (Due to overwhelming number of visits the server of this site might require multiple attempts to load.)
Details about who is this humble, but brave gentleman who has shown the extraordinary courage to challenge the regime of corruption in India through a most humble but extremely powerful form of protest of fasting is available at: www.annahazare.org
The Jan Lokpal Bill is a law proposed by the civil society in India, which they claim is a model law, if implemented is capable of dealing with corruption.
The salient features of this law as claimed by India Against Corruption are:
1. An institution called Lokpal at the centre and Lokayukta in each state will be set up;
2. Like Supreme Court and Election Commission, they will be completely independent of the governments. No minister or bureaucrat will be able to influence their investigations;
3. Cases against corrupt people will not linger on for years anymore: Investigations in any case will have to be completed in one year. Trial should be completed in next one year so that the corrupt politician, officer or judge is sent to jail within two years;
4. The loss that a corrupt person caused to the government will be recovered at the time of conviction;
5. How will it help a common citizen: If any work of any citizen is not done in prescribed time in any government office, Lokpal will impose financial penalty on guilty officers, which will be given as compensation to the complainant;
6. So, you could approach Lokpal if your ration card or passport or voter card is not being made or if police is not registering your case or any other work is not being done in prescribed time. Lokpal will have to get it done in a month’s time. You could also report any case of corruption to Lokpal like ration being siphoned off, poor quality roads been constructed or panchayat funds being siphoned off. Lokpal will have to complete its investigations in a year, trial will be over in next one year and the guilty will go to jail within two years;
7. But won’t the government appoint corrupt and weak people as Lokpal members? That won’t be possible because its members will be selected by judges, citizens and constitutional authorities and not by politicians, through a completely transparent and participatory process;
8. What if some officer in Lokpal becomes corrupt? The entire functioning of Lokpal/ Lokayukta will be completely transparent. Any complaint against any officer of Lokpal shall be investigated and the officer dismissed within two months;
9. What will happen to existing anti-corruption agencies? CVC, departmental vigilance and anti-corruption branch of CBI will be merged into Lokpal. Lokpal will have complete powers and machinery to independently investigate and prosecute any officer, judge or politician;
10. It will be the duty of the Lokpal to provide protection to those who are being victimized for raising their voice against corruption.
The complete text of this model law could be downloaded here. Jan Lokpal Bill
The Government of India has also proposed a law. It is widely held as a week law, often also referred to as ‘eyewash’ legislation. The features of this law, once again provided by India Against Corruption are the following:
1. Lokpal will not have any power to either initiate action suo motu in any case or even receive complaints of corruption from general public. The general public will make complaints to the speaker of Lok Sabha or chairperson of Rajya Sabha. Only those complaints forwarded by Speaker of Lok Sabha/ Chairperson of Rajya Sabha to Lokpal would be investigated by Lokpal. This not only severely restricts the functioning of Lokpal, it also provides a tool in the hands of the ruling party to have only those cases referred to Lokpal which pertain to political opponents (since speaker is always from the ruling party). It will also provide a tool in the hands of the ruling party to protect its own politicians;
2. Lokpal has been proposed to be an advisory body. Lokpal, after enquiry in any case, will forward its report to the competent authority. The competent authority will have final powers to decide whether to take action on Lokpal’s report or not. In the case of cabinet ministers, the competent authority is Prime Minister. In the case of PM and MPs the competent authority is Lok Sabha or Rajya Sabha, as the case may be. In the coalition era when the government of the day depends upon the support of its political partners, it will be impossible for the PM to act against any of his cabinet ministers on the basis of Lokpal’s report. For instance, if there were such a Lokpal today and if Lokpal made a recommendation to the PM to prosecute A. Raja, obviously the PM will not have the political courage to initiate prosecution against A. Raja. Likewise, if Lokpal made a report against the PM or any MP of the ruling party, will the house ever pass a resolution to prosecute the PM or the ruling party MP? Obviously, they will never do that;
3. The bill is legally unsound. Lokpal has not been given police powers. Therefore Lokpal cannot register an FIR. Therefore all the enquiries conducted by Lokpal will tantamount to “preliminary enquiries”. Even if the report of Lokpal is accepted, who will file the charge sheet in the court? Who will initiate prosecution? Who will appoint the prosecution lawyer? The entire bill is silent on that;
4. The bill does not say what will be the role of CBI after this bill. Can CBI and Lokpal investigate the same case or CBI will lose its powers to investigate politicians? If the latter is true, then this bill is meant to completely insulate politicians from any investigations whatsoever which are possible today through CBI;
5. There is a strong punishment for “frivolous” complaints. If any complaint is found to be false and frivolous, Lokpal will have the power to send the complainant to jail through summary trial but if the complaint were found to be true, the Lokpal will not have the power to send the corrupt politicians to jail! So the bill appears to be meant to browbeat, threaten and discourage those fighting against corruption;
6. Lokpal will have jurisdiction only on MPs, ministers and PM. It will not have jurisdiction over of
ficers. The officers and politicians do not indulge in corruption separately. In any case of corruption, there is always an involvement of both of them. So according to government’s proposal, every case would need to be investigated by both CVC and Lokpal. So now, in each case, CVC will look into the role of bureaucrats while Lokpal will look into the role of politicians. Obviously the case records will be with one agency and the way government functions it will not share its records with the other agency. It is also possible that in the same case the two agencies arrive at completely opposite conclusions. Therefore it appears to be a sure way of killing any case;
7. Lokpal will consist of three members, all of them being retired judges. There is no reason why the choice should be restricted to judiciary. By creating so many post retirement posts for judges, the government will make the retiring judges vulnerable to government influences just before retirement as is already happening in the case of retiring bureaucrats. The retiring judges, in the hope of getting post retirement employment would do the bidding of the government in their last few years;
8. The selection committee consists of Vice President, PM, Leaders of both houses, Leaders of opposition in both houses, Law Minister and Home minister. Barring Vice President, all of them are politicians whose corruption Lokpal is supposed to investigate. So there is a direct conflict of interest. Also selection committee is heavily loaded in favour of the ruling party. Effectively ruling party will make the final selections. And obviously ruling party will never appoint strong and effective Lokpal;
9. Lokpal will not have powers to investigate any case against PM, which deals with foreign affairs, security and defence. This means that corruption in defence deals will be out of any scrutiny whatsoever. It will become impossible to investigate into any Bofors in future. Whereas a time limit of six months to one year has been prescribed for Lokpal to enquire, however, subsequently, there is no time limit prescribed for completion of trial;
10. It does not deal with corruption of Bureaucrats. Corrupt bureaucrats continue in their job without any actions against them;
11. It does not talk of investigation of complaints against judges;
12. Speaker would decide which complaints shall be enquired into by Lokpal;
13. Our entire governance system suffers from inadequate public grievance redress systems, which force people to pay bribes. Lokpal bill does not address this issue;
14. Large number of people raising their voice against political corruption is being murdered. Lokpal does not have any powers to provide protection to them;
15. Nothing has been provided in law to recover ill-gotten wealth. A corrupt person can come out of jail and enjoy that money;
16. Under the present law, there is Small punishment for corruption- Punishment for corruption is minimum 6 months and maximum 7 years.
The text of the government’s Bill could be downloaded here: Lokpal Bill, 2010
The AHRC joins hands with this monumental initiative. The AHRC along with some of its partners in India has issued a statement yesterday in support of Hazare’s fast, entitled: A responsible government will listen to the people. The AHRC will continue providing more updates and analysis about the issue.
Meanwhile please visit www.indiaagainstcorruption.org or www.annahazare.org, and express your solidarity by joining the campaign. You can send letters — a draft is provided at www.indiaagainstcorruption.org — and if you are outside India, like the AHRC, you could still join the campaign by organising activities in support of the movement in your city.
*Acronyms used in the text above:
1. CBI – Central Bureau of Investigation, a central agency under the Government of India that usually investigates corruption
2. CVC – Central Vigilance Commission, for further information kindly see: INDIA: An apology will not end corruption
3. Bofors – Kindly see Bofors Scandal for a rough idea about the issue. The AHRC need not necessarily agree with the veracity of some of the contents.