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Monday, August 10, 2020

We,the thieving people

National Interest: Give us a chosen few of ‘unimpeachable’ integrity,arm them with the most undemocratic law made outside Parliament

Written by Shekhar Gupta | Published: April 23, 2011 1:24:03 am

Some questions can have only one answer. For example,is corruption a bloody awful thing? Are you sick and tired and outraged by recent scandals? Shouldn’t the perpetrators of all these be thrown into jail? Is the process of catching such thieves in high positions too slow,too compromised and,actually,a joke? Does India need to set up a new,effective mechanism to not only catch and convict the corrupt but also to strike terror in the hearts of all those who may have felt tempted to steal? If the Jan Lokpal bill,drafted by well-meaning,sincere members of the civil society,provides that legal framework,should it be passed forthwith? The answer to all these will be a resounding,unanimous “YES”. No question. No argument.

Now,let’s pose some more questions: have you read the text of the proposed bill? The honest answer is most of you have not. Nor had I,until late last week. So here are some follow-up questions: in that fight against corruption are you willing to reshuffle the great constitutional arrangement of checks and balances,separation of powers and responsibilities within our institutions,Parliament,executive and the judiciary? Will you create an institution that’s a cop-cum-prosecutor-cum-inquisitor-cum-judge at the same time,in a “na appeal,na vakil,na daleel” (the expression made famous during the Emergency) kind of arrangement? Do you want an institution that will override the judiciary and Parliament,have the magisterial powers of search and seizure and,as time passes,will pretty much appoint its own successors and be answerable to none,particularly as even the judges of the Supreme Court will quake in their robes before they hear complaints against the Lokpal as it would also have the powers to investigate complaints against them (there is a concession however: such investigations will not be carried out on behalf of the Lokpal by a police officer below the rank of a superintendent of police)? Finally,are you willing to appoint a General Musharraf in mufti to sort out all that bedevils India today? I can presume the answer to all these will be generally no,though there will be some quibbles over the interpretation of this and that. But please do read the text of the bill (available at http://www.indiaagainstcorruption.org) as we go on.

The Musharraf reference is brought in with great care. He tried to create a perfect system with a “democracy” that was “guided” by him,and his corps commanders,obviously men with “unimpeachable integrity” (a term you will read often in the Lokpal bill draft) and certainly unquestionable patriotism. It worked well for nine years,until he willy nilly got caught in putting his control over his judiciary to the test of public opinion and a Pakistan,even under military rule, revolted. It is tough to see how India,old or new,would ever accept so dictatorial an arrangement. The Musharraf reference is also tempting because the standard answer from this group of civil society leaders to the question if their bill violates the basic spirit of the Constitution is,so what,the Constitution can be amended as it has been so many times. But the kind,and number of Constitutional amendments this draft will require,will need a Musharraf. Remember how he unveiled his new constitution at a press conference,and carried out 36 amendments on the spot,on the suggestions of journalists who,I presume,fitted his definition of members of civil society.

Read along this draft with me. First of all,the composition of the 10-member Lokpal and its chief. Four will have to be former senior lawyers or judges,and no more than two former civil servants. Where will the rest come from? Your guess is as good as mine. All of these will have to be people of “unimpeachable integrity” and also “should have demonstrated their resolve to fight corruption in the past.” From where will you find these people,particularly as you are working on the presumption that a large number of judges of the Supreme Court and high courts do not pass that test of unimpeachable integrity. And who will choose them? A committee headed by the prime minister who,in turn,will be under the jurisdiction of the Lokpal he chooses. But,wait,it is more complicated than that. This committee shall include the two youngest judges of our high courts and Supreme Court respectively,the presumption being that the young are cleaner (Clause 6,5 c and d). But,if a Lokpal has to be fired for misdemeanour,the case will be heard by a bench consisting of the five seniormost judges of the Supreme Court? Confused? Why are the youngest virtuous while hiring,and the seniormost equally so while firing?

The first time,this selection committee will set up a search committee of 10,of which five shall be former CAGs and CECs but only if there has never been a “substantive” allegation of corruption against them,nor do they have any “strong” political affiliations. Who is to sit in judgment over such subjective criteria? But wait. This committee of five will then choose five members from the civil society. How civil society is defined we do not know,but in fairness,you should presume we journalists will not be among them. If this is not sounding impossible already,this search committee has to recommend at least “three times the names as there are vacancies” (Clause 6,10 f). So if you thought it is hard enough to find so many perfect men and women,you now know that you have to find thrice as many. And,of course,when the selection committee’s choice is finally forwarded to the president,she “shall” sign it within a month. This would make the Congress party blush,in particular,as the last time the president of the Republic was treated so peremptorily was during the Emergency. Remember Abu Abraham’s immortal cartoon in this paper,showing Fakhruddin Ali Ahmed in his bathtub,handing out a signed ordinance through an ajar door,and saying,if there are more ordinances,can they wait till I finish?

If the bill tells the president what she “shall” do,it similarly directs the Supreme Court,five seniormost of whose judges will hear any complaints against the Lokpal and “shall not dismiss such petitions in liminae.” And,of course,should they decide that the Lokpal is guilty,they will write to the president who “shall” fire him within a month.

If the idea of this bill is to take away all discretion,and strike terror in the hearts of the bad guys,it does that very effectively.

Except,so many of the rest,generally innocent Indians,may live in that terror as well. The bill,for example,entitles the Lokpal to collect 10 per cent of all the fines collected,stolen wealth recovered,or even national wealth saved from being stolen,in its own corpus for its own use,thereby creating extortionist incentive: the more you value,the more you collect. Read on further. If you report on another citizen and he is caught and convicted,you would similarly earn 10 per cent of the money recovered,and/ or the money saved from being swindled as your reward. We will,therefore,be incentivised by law to become a nation of cops and spies,sneaking on neighbours and family for pecuniary gain. Such things happen in North Korea and if it is your argument that its people are happier than us Indians,we will need some convincing. Of course,this may see so many Indians in jail that real estate companies,maybe even DB Realty and Unitech,may find it profitable to diversify into building new prisons all over the country. Further,almost all Lokpal proceedings,from selection committee meetings to trials,will be videorecorded and copies will be available for a fee. This will be a great stimulus for the video industry and if you had any spare cash you had better buy some Moserbaer stock.

The bill plays nicely on the current sab chor hain mood. So if a company is found to benefit from a corrupt practice,five times the loss it is supposed to have caused the public (it could have been 5 x 1.76 lakh crore in case of the telecom scam) will be recovered by auctioning not just its assets,but also the personal assets of its directors. You can go on,the Lokpal members will be deemed police officers,have the powers of seizure and search without going to a magistrate — precisely the question with Armed Forces (Special Powers) Act) — have protection of contempt of court law,will function as civil courts,be investigators and prosecutors,throwing out the very principle of separation of powers,checks and balances (Clauses 8-19,21,24,25,27,32).

As we saw in the first five questions raised,and answered in the affirmative in this article,there is no doubt that all Indians are now desperately angry with corruption. But is the way to fight it to totally subvert our constitutional arrangement and create an institution with absolute,unchallenged and draconian powers? Or install a Kim Il Sung with his politburo? This bill,in this form,is designed to match the dictum of “absolute power corrupts absolutely.” It also presumes all Indians are thieves,unless proven otherwise,and can only be governed in a police state. Further,that a society of a billion-plus thieves can be cleansed by barely a dozen individuals armed with the most undemocratic law drafted in a democracy outside its Parliament. That is why this needs greater,cooler discussion. Medha Patkar is right in saying that the antecedents of the civil society committee members are not the most important thing and that there should,instead,be a vigorous debate on all aspects of this bill. That is what we are trying to initiate in this paper.

A word about the response of the political class so far. The Congress has been panicking because of its own well-earned and deserved guilty conscience as so many scams have happened under its watch. The BJP touchingly believes this is its second Ganesh-drinking-milk moment that will help bring it back to power. But it does not see the contradiction of backing Santosh Hegde against the Congress in Delhi and Yeddyurappa against him in Bangalore. A strong,effective institutional framework to prevent and punish corruption is an idea whose time has come. This draft bill,unfortunately,is like losing your way before starting that journey.

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