By Balaji Ganesan.
As the Lokpal related protests by India Against Corruption group resume in Mumbai, it is be pertinent to analyze their latest demands. Anna Hazare has written an open letter to the Prime Minister and the MPs with four specific demands.
Demand 1: Suo moto powers to investigate.
The motivation behind this demand apparently is to facilitate secret investigation (based on tip-offs) while corruption is in progress or to catch the accused by surprise. However the Lokpal Bill is clear that the Ombudsman proposed to be created is not an investigating agency. Any investigation possible under this law is going to be carried out by CBI, ACBs and Lokayukta Police as the case may be. All these investigative agencies are already empowered to initiate suo moto and secret investigations into potential acts of corruption.
Its not clear why the Central Vigilance Commission, which is specifically created to make such secret inquiries, is being overlooked. Vigilance is clearly the domain of the CVC and not that of an ombudsman. Another civil society group, NCPRI has proposed several measures to strengthen the CVC, which are worth considering. The protesters can perhaps demand that the vigilance activities of CVC be extended to Group A and B officials.
In many cases, having a complainant may help protect the institution of Lokpal from accusations of partisanship. One of the salient points of Lokpal is that it can initiate inquiry proceedings without the need for approval. Having acquired such authority, it should exercise that power with responsibility. Ordering secret investigations against highest executive offices in the country based on tip-offs seems unwarranted. At the lower levels, CVC is already keeping vigilance.
Demand 2: The Lokpal to carry out independent investigations, through any one of the following mechanisms.
Its not all clear why the demand is not for making CBI a constitutional body, answerable to parliament, with its own budget and recruitment process independent of the Department of Personnel. Its somehow taken for granted that an investigating agency has to be controlled and influenced one way or the other.
a. Merging Anti-corruption branch of CBI with Lokpal.
The current and former directors of CBI have argued that the resources of the organization are not such that a division can take place without rendering both the splinter units ineffective. In many cases, the acts of corruption are accompanied by offenses under criminal law. For example, the cases where upright officers were killed by Kerosene/adulteration mafias. The resources of the state are likely to be better utilized by having a single investigation. Further, in the absence of a single independent investigating agency, its entirely possible that government functionaries may order parallel inquiries by other agencies to offset Lokpal led investigation.
b. Creating another investigation agency under Lokpal.
There is no justification to spend tax payer’s money in creating a new agency, when more autonomy can be given to CBI. Having CBI under government control and a new investigative agency under Lokpal control is certain to lead to turf wars and delay the investigations. As observed in some of the Gujarat Riot Cases, where three different agencies were probing the same cases, the supreme court was trying to restrain individual officers from sabotaging other investigations.
c. Administrative and Financial control of CBI with Lokpal.
Again its not clear, why CBI should not be an independent body but instead be subject to influence by Lokpal. Considering CBI investigates a multitude of cases in different domains unrelated to corruption, the demand to vest control of CBI with an anti-corruption ombudsman seems arbitrary.
Demand 3. Selection panel to have fewer elected officials.
This is the most problematic of all the demands. Requiring a consensus on the appointment is a non-starter. As observed in Lokayukta appointments in Gujarat, Karnataka and the CVC appointment, a consensus is certain to elude the selection panel, leaving the Lokpal with vacancies if not non-existent.
Having two judges of the supreme court in the selection panel is also not advisable, since appointments to offices of this kind are often challenged in the courts. Further, the Lokpal is a prosecutor and the supreme court judges are later eligible to be appointed to the Lokpal panel. There are several opportunities for conflict of interest. While there are demands to create a National Judicial Commission to give elected representatives more say in Judicial appointments, this demand seems to be a step backward. Its pertinent to remember that in the US, judicial appointments are confirmed by the legislature and are even subject to partisan voting on the nominee. Their system works just fine.
The demand to include CEC and CAG, who have nothing to do with Lokpal, seems entirely arbitrary. Exposing such offices to lobbying in other appointments, can only have disastrous consequences in their independent functioning.
Having a panel of parliamentarians appoint the Lokpal chairman and members might be a better alternative. While such appointments may come to be influenced by partisan considerations, the opposition members in the selection panel will get the opportunity to expose questionable candidates. As it happened recently in a CVC appointment, such questionable appointments become untenable in the public opinion and can be over-turned by the courts.
Demand 4. The Lokpal’s jurisdiction should include Class C and D officers directly.
The current Lokpal Bill already has provisions to refer cases against groups C and D officers to the CVC. And if such officers collude with higher officials, they’ll be party to a CBI investigation anyway. Moving even petty cases to a nine member Lokpal is likely to be ineffective besides liquidating the authority of departmental vigilance officers and CVC. Corruption at lower levels, which directly affects the common man, requires to be handled by a highly decentralized mechanism rather than the one demanded by the protesters.
As has been their wont, India Against Corruption group continues to regard all democratically elected representatives as untrustworthy and is trying to vest as much authority in unelected officials as possible. While there may be wide-spread disillusionment with the political class in India, it may not be in the long term interest of the Republic to undermine the authority of our elected officials.
While demands for increasing the autonomy of CBI and strengthening the CVC are worth considering, they are outside the purview of the current Lokpal Bill. Hence the latest demands by Anna Hazare deserve to be ignored.
Balaji Ganesan participated in the initial anti-corruption protests in Bangalore and blogs at balajiworld.blogspot.com.