Lokpal- Are we creating a Frankenstein?

The relevance of Lokpal in combating corruption in India today

What need of a Lokpal?

Today there is a lot of debate about the need of a Lokpal or an Ombudsman to ensure transparency in governance. It is being treated by very many people to be the panacea for corruption in this country. The question is whether the institution of Lokpal is going to be the medicine through which corruption in this country could be eradicated. My considered view is that the institution of Lokpal though well-intentioned is irrelevant to the eradication of corruption and there is a very big danger that the same could be a source of corruption and vindictive action against governments.

The larger issue of increased corruption

It is my view that there is very little need for any institution which specifically looks into corruption in the country. The issue of corruption according to me can be addressed by the existing institutions. It is my view that the present corruption in the country is not because there are lack of institutions to look into corruption but precisely because institutions dealing with acts of corruption have been subverted by the present executive.

At the very beginning it must be noted that the extensiveness of corruption as we see today has grown in parallel with the extension of the welfare state. It is apparent for all to see that as the state has come to govern more and more areas of social welfare in the country the amount of corruption has also grown by leaps and bounds. It is my view that corruption is an integral part of the extension of the state for the purposes of distribution of welfare measures. Corruption is the rent which intermediaries in the governing structure take for the purposes of extending the benefits arising out of the state to the people. It is my view that if there is less state there would automatically be less corruption.

What we have seen in the last 20 years with the liberalisation regime is that corruption has grown in geometric proportions. Most people attribute this growth and corruption to the very nature of the present liberalised economy. Many people attribute it to the present consumerist culture. It is my view that it is exactly the reverse. It must be noticed that any Congress regime has continuously attempted to increase production with the help of its favoured industrialists and then become the conduit of distribution of wealth to the people in order to buy their allegiance. Anyone who has read the Bombay plan signed in 1944, by all the top industrialists of the country at that point of time, and the Congress politics and policies thereafter till the present day, would realise the truth of the said assertions.

The power to distribute benefits in order to buy allegiance has grown exponentially with the coming of the liberalised regime. Interestingly while all over the world liberalisation has meant deregulation and a decrease of institutions of governance in India it has meant more institutions both to govern people as well as to distribute the supposed benefits of this high rate of growth amongst the common people or the “ aam admi”. This increase in bureaucracy coupled with the increase of very large amounts of money now freely available because of the process of globalisation has led to humongous amounts of corruption in governance.

It is my view that corruption cannot be eradicated unless there is a marked decrease of the state along with a change in attitude of the people.

It must be noticed that in historical times India had been noticed by foreign travellers to be largely free of corruption. No doubt corruption existed as will be evidenced by large chapters in the Arthashatra dedicated to combating of corruption; however as a society India was largely not corrupt. It is my view that the main reason for the same was that India before the coming of the British was an unique society in which the levers of the distribution of benefits as well as governance of Justice and administration was in the hands of local society and not of government officials. Societal pressure as a result forced those who were holding positions of power to be more answerable to other members of the society. This obviously reduced corruption to a great extent. It is my view that the presence of large chapters in the Arthashastra dedicated to combating corruption arises directly out of the fact that the Mauryan state was the most bureaucratic state till the coming of the British. It was a tightly controlled economy with numerous officers at various levels controlling the people and the society. This automatically resulted in proliferation of bureaucracy and therefore increased corruption. It was therefore natural that measures had to be taken to combat this corruption. The Arthashastra which is usually taken to be the governing document of the Mauryan state therefore clearly evidences such strong measures to combat corruption, which are unusual to say the least.

The Institutions of Governance looking into corruption in India

In our country we have the Prevention of Corruption Act, 1988 which defines corruption and what actions can be taken against those who fall under its ambit. It is apparent that in case there is any need to widen the definition of “public servant” or actions of corruption such changes could be brought in to the Act itself.

We have a Delhi Special Police Establishment Act, 1948 which effectively creates a centralised agency to investigate acts of corruption, namely CBI which in terms of Section 4 states that supervision of acts of corruption under the Prevention of Corruption Act would lie with the Central Vigilance Commission and not with the union government which is the norm in other matters.

The Central Vigilance Commission Act, 2003 gives the Central Vigilance Commission (CVC) the power to supervise investigations of corrupt practices as well as the right to supervise the investigation of such offences by the CBI, under Section 8.

It is my view that in case the system has not been working well changes can of course be made under the above-mentioned three statutes. Any lacunae in the said three statutes could be duly filled up by amending provisions therein.

No doubt that despite the above mentioned three statutes corruption India has grown enormously and to a great extent the above institutions have failed in their responsibilities to combat corruption. The question is whether this is fallout of the failure of the above-mentioned institutions themselves or the failure is because of the subversion of the institutions in a planned manner by the political executive.

It must be remembered that most of the scams which has been exposed in the history of Indian Republic has been uncovered by the Comptroller and Auditor General of India, a constitutional office with very limited powers. This just shows that the problem is not necessarily with the powers given to institutions but more with the independence of such institutions.

Why the said institutions are not effective ?

The secret to me about the success of the CAG is that the CAG is independent and answerable to the Constitution. The other institutions are not answerable to the Constitution but to the political executive. This has led to large-scale subversion of all the above institutions. It is apparent that the fault is not with the institutions per se but with the political executive which has subverted them . To me the solution is not to add another layer of bureaucracy like the Lokpal but to make the above institutions like the CBI and the CVC independent of political pressure.

It is numerously bandied about that the problem with the CVC is that it cannot directly prosecute people for corruption. But it is apparent from an examination of the statutes governing the issue of corruption,  as mentioned above , that read in conjunction with each other they have enough power to combat corruption. It is my submission that in case it is perceived that the definition of corruption needs to be increased or more extensive powers need to be given for purposes of investigation of corruption such can be made by changing the above mentioned three statutes.

It must be remembered that there are no parallel offices to the Lokpal in the United States and United Kingdom and yet corruption levels are nowhere as close to India. In the converse it must be noted that there are such extensive provisions for Lokpal like institutions in states of South America and Africa and they themselves have become source points of corruption. It is important to note that under no point of time can it be surmised that Lokpal can be the solution for corruption.

The problem is the independence of the above-mentioned institutions. In postindependence India and especially in the present regime of the UPA which has a marked Congress tendency every institution has been subverted. There have been clear attempts during Congress regimes to subvert even constitutional positions. After all the theory of a “committed judiciary” is an indicator of a type of mindset which runs within the present administration. It is my view that if this be the case of constitutional authorities, statutory authorities like the CBI and the CVC have been basically used as enforcement agencies by the present government. It is important that this is stopped. The subversion of statutory institutions by the executive cannot be blamed on the institutions but has to be blamed on the executive. The entire debate about Lokpal therefore is in many ways a red herring.

The dangers of the conception of Lokpal Bill and suggestions relating thereto

It is my view that Lokpal is essentially another layer of bureaucracy at the most benign and a possible pernicious method to harass political opponents at the most malign. In the last five years we have had the experience of both. We have seen how institutions like the Lokpal have been used to harass political opponents. This is a dangerous trend. Besides the possibility of creating alternate structures of power in the State, the Lokpal can also turn out to be the reason for state of paralysis in governance. It is not impossible to foresee that the entire governance of states may come to a halt when institutions like Lokpal can be used to harass the political executive. It is also important to note that Lokpals can themselves be subject to political and other pressure which may influence their decisions. In such cases governance in the country suffers. In a country like India where there is grinding poverty and where rapid development is in the need of the hour decisions cannot be held hostage to alternate power centres.

It is also my view that Lokpal is essentially a bureaucratic solution to the problem of corruption. It envisages a very large bureaucratic machinery consisting of both investigative as well as administrative machinery to combat corruption. It disregards the fact that the bureaucracy in India is the single largest source of corruption in India today. Adding a layer of bureaucracy only creates alternate structures for employment in government jobs and has very little chance of actually solving the problem that is combating corruption. Employing more people and increasing government to even more areas may not be the best way to combat corruption as the experience of our history shows.

The single biggest grouse which everybody has with the present anticorruption mechanism is the misuse of the CBI to exculpate the corrupt and harass political opponents. It is my view that the solution lies not in creating another layer of bureaucracy like the Lokpal but in ensuring that the CBI is independent of political and executive pressure. Infact according to me it would send an incorrect signal by detaching the CBI from investigating corruption cases , it would indicate that political interference in criminal investigation is an acceptable thing as long as it does not involve corruption . This would legitimise in many ways the misuse of CBI which is the prevalent order of the day.

We are creating a Frankenstein?

In my mind the Lokpal is a Frankenstein being created by those with bureaucratic mindsets. The sad fact is, so tainted are our today’s politicians that very few have the courage to take on the idea of the Lokpal. Those who have taken on the idea have taken on the same very superficially by mouthing political arguments on the representation of the proposed Lokpal and its powers. No one has discussed the pernicious effects which a Lokpal may have on the body politic and constitutional governance in the country. It is my view that it is time that relevant questions as to the need of such an institution be raised and whether such institution would hamper growth and development.

I again reiterate that corruption is India’s biggest problem. It is my view that the bureaucracy and the political class are both responsible for the present humongous nature of India’s corruption. Adding another layer of bureaucracy will not combat or solve the problem of corruption. It may at the most allow the bureaucrats their fantasy of being able to finally have a handle to control their political masters.

The question is should we get involved into a fight for supremacy essentially between the bureaucracy and the political class? My considered answer is no. The reason is because it is none of our problem since there is little to choose between both. Therefore in the ultimate analysis the fight over the creation of Lokpal is irrelevant to the eradication of corruption in India and we should treat it as such .

What is the solution?

Most of India is bothered about not the corruption cases concerning thousands of crores which make good television but in the small and petty corruption which they have to face everyday .The solution to combat corruption is less of “state” and “government” by radically reducing bureaucracy and therefore places of possible rent seeking. It also consists of handing most decision making power in relation to distribution of government benefits to social groups, like the villagers themselves in the form of accountable and truly apolitical and representative bodies like Panchayats and local groups in villages and Resident Welfare Associations and Nagarpalikas and other local groups in cities and towns, and making these groups accountable to the societies and people from where they arise.

As for the bigger cases of corruption at all levels, I suggest that we ensure an independent police, prosecution and lower judiciary.

And for even bigger cases , complete independence to the CBI and CVC to go about their business if needed by amending the law ,and by ensuring that there is a fair prosecution which is not subject to political pressure .