Monday, August 22, 2011

My idea of a Lokpal bill

In my last post I analyzed all the publicly available Lokpal bills in details. Here I am trying to do a cut and paste job and try to come up with a Lokpal bill that I believe is the best solution in our context. Before I do that, let me list down what is my expectation from Lokpal bill.

  • It should be a strong deterrent for corruption in public officials without damaging independence and decision making of these institutions.
  • The Lokpal should have jurisdiction over whole country
Prime Minister : Lokpal should have jurisdiction over Prime Minister but since any inquiry against Prime Minister can result in clamor of his resignation. The resignation of PM can result in vacuum in central government because there is no equivalent of President's rule at central government level, there should be checks and balances against exercising this jurisdiction over PM. I like the idea of NCPRI in how to deal with corruption by PM. In summary it is outlined below.
  • Any complaint against PM is evaluated by full bench of Lokpal for prima-facie evidence. Once the bench finds the prima-facie evidence in the complaint, they refer it to a full bench of Supreme Court for their opinion. On positive opinion from SC, Lokpal notifies the ruling dispensation of imminent inquiry proceedings with a notice of few days giving them time re-elect a new PM.
CMs, Ministers, MPs, MLAs, MLCs : Nothing special against then, Lokpal exercises complete jurisdiction against them and can initiate inquiries against them on receipt of complaint. The reason CM is treated differently than PM is because there is provision of President's rule at state government level and no power vacuum is created if CM has to resign.
As for MPs, MLAs, and MLCs conduct inside Loksabha, Vidhan Sabha, Rajya Sabha is concerned, in the light of recent cases of mis-conduct of members during proceedings of these houses, Lokpal needs to exercise jurisdiction against them but sufficient protection needs to be given to members for their behavior in house. We can probably adopt the model suggested by NCPRI for PM with few changes for bringing MPs behavior in house.
  • Any complaint against a member of any house by Lokpal can be sent to the presiding officer of the house, who will, within a limited (well defined) time, either approve the inquiry to be conducted against the member or if he wants to reject the inquiry refer it to the bench of Supreme/High court who has to validate the reasons of his rejection.
Public Officers : I believe that the skills that are required to inquire against corruption done by higher officers are very different than petty bribery committed by peons and lower officers. I believe that all the officers that are holding supervisory positions (i.e. there are people reporting to them), need to be brought under Lokpal. For this purpose, CVC and other equivalent agencies in states need to be merged into Lokpal. There is a difference in an individual demanding bribes and supervisors institutionalizing bribes and that's why these need to be tackled differently. For non supervisory officials (clerks, peons etc), departmental methods need to strengthened. All the supervisors need to be held accountable for corruption within a department. If there are more than a certain number of complaints against non supervisory employees of a government department, automatically it should trigger an inquiry against the supervisor of those employees by Lokpal.
The idea here is that it is the responsibility of supervisors to make sure that people reporting to them are not corrupt. Non supervisors can be handled with departmental disciplinary mechanisms.For example we could decide that if a department receives more than 5 complaints per week, the supervisor will be inquired by Lokpal for institutionalized corruption within his department.
Judiciary : Judiciary is our only safeguard against Lokpal and his officers gone rogue. We can not include Judiciary under Lokpal and to eliminate corruption against Judiciary, we need to probably strengthen Judicial Accountability Bill on the lines mentioned by NCPRI.
Summary : We need a poweful Lokpal but as I have always maintained, the most corrupt departments in India are the departments with most amount of power. A all poweful Lokpal will eventually become a all corrupt Lokpal. The government department will also have to start collecting the Lokpal officers' share of bribe and the cost of dealing with government with go up for every citizen.
We need to guard against creating an institution with tens of thousands of officers who start interfering in every part of citizen's life.
The Lokpal should also restrict itself to corruption, we probably also need to define corruption, where money or favors are demanded to get something done. Incompetence or decision gone wrong with best intentions, should not be part of what Lokpal should worry about. Take the case of a situation where there is a natural calamity and a district official needs to procure somethings urgently, if he buys goods and gets favor in return, that is corruption, but if be buys things quickly, may be at inflated prices, bypassing regular tender process with his best intentions to serve people, Lokpal should stay out of such cases.
My 2 cents.

Sunday, August 21, 2011

My thoughts on circus called Lokpal and Jal Lokpal

Will all the circus going over Lokpal and Jan Lokpal, here is my attempt to understand see what is really going on. For people who want to read the whole stuff, Lokpal Bill 2011, IAC Draft of Jan Lokpal and Collective and Concurrent Lokpal Anti Corruption and Grievance Redress Measures- by the NCPRI here. This is a very long post so read it with patience. My belief, at the end of all this stuff, is that the measures suggested by NCPRI as the most mature measures against corruption because they seem to have thought through the issues and it is not a cow boy style response to a complex problem.


Let's start with the Lok Bill 2011 as introduced by government. It is a pretty long bill, I have tried to summarize it below.

Establishment of Lokpal

Members : Lokpal will consist of a chairperson and eight members, chairperson has to necessarily be a chief justice of supreme court, retired judge of supreme court or a sitting judge of supreme court. Out of the eight members in the Lokpal, five will be judicial members (basically sitting or retired judges of supreme court or chief justice of high courts). Rest of the members could be non judicial members with atleast 25 years of experience in "anti-corruption policy, public administration, vigilance, finance including insurance and banking, law, and management". Chairpersons and members can't be involved with anything like business, any other office, profession.
Appointment Committee : The appointment committee will consist of Prime Minister, Speaker of House, Leader of opposition in Loksabha, Leader of opposition in Rajyasahba, A union cabinet minister, sitting judge of supreme court nominated by CJI, Sitting judge of high court nominated by CJI, eminent jurist nominated by central government, one person of eminence in public life.
Salary : Chairperson's salary would be equal to CJI, Members salary would be equal to other judges of supreme court.
Removal : Chairperson or members can be removed by president on grounds of misbehavior after supreme court holds an inquiry and reports that member may be removed on such ground. The reference can be made to supreme court by President, President on a petition signed by one hundred members of parliament, President on receipt of petition made by a citizen of India and president is satisfied that such petition needs to be referred to supreme court. While the supreme court is deciding on reference, president can suspend the chairperson or member. President can also remove Chairperson or member if they are insolvent, engage in any paid employment, unfit to continue in office by reason of infirmity of mind or body.
After Office : Any member or chairperson can not take up the position of member or chairperson of lokpal, any diplomatic assignment, administrator of union territory, any employment to office of profit under government of India or state, office of president, vice president, member of either house, state legislature, municipality, panchayat for a period of five years.
Investigation Wing
Lokpal will establish their own Investigation Wing. Till the time the Lokpal establishes its own investigation wing, central government shall make available investigation officers from its ministries and departments. Investigation will not be done by any officer below the rank of DSP.
Prosecution Wing
Lokpal will establish a prosecution wing and appoint director of prosecution and other officers. Director of prosecution, after being directed by Lokpal shall file a complaint before a special court and take all necessary steps in relation to prosecution.
Expenses of Lokpal shall be charged to consolidated fund of india.
Jurisdiction of Lokpal would cover, PM after he demits the office, any person who is or has been a minister of union, any person who is or has been member of either houses of parliament. Group A officer or above, any person who is or has been a chairperson or member or officer equivalent to group A officer in any body, board, corporation, authority, company wholly or partly financed by central government or controlled by it.
Exemptions : PM while in office, members of parliaments' behavior in house, society or association of persons or trust constituted for religious purposes. If anybody is working with a state government then the permission of state government has to be obtained.
Lokpal would receive complaint do preliminary inquiry or direct its investigation wing if a prima facie case exists for proceeding in this matter. Preliminary inquiry has to be completed within thirty days.  Lokpal shall afford the public servant an opportunity of being heard.  Lokpal can pass appropriate orders for safe custody of the documents relavent to the inquiry. Website of the lokpal shall publish numbers of complaints pending and disposed by it. No approval or sanction is required by Lokpal for starting investigation.
Competent authority shall initiate proceedings within thirty days of receipt of recommendation against delinquent public servant accused of committing offense under prevention of corruption act and forward its comments on the report including action taken, proposed to be taken within six months of initiation of such proceedings.
Prime Minister, in case of ministers, the speaker in case of a member of the house of people and the chairman of the council of states in case of the member of that council, shall table the report in the house within a week or a week of reassembly if the house is not in session.
The Lokpal shall have search and seize powers. The Lokpal shall have powers to summon and enforcing attendance of a person and examining him under oath, requiring discovery and production of document, receive evidence on affidavits, requisitioning any public record or copy of it from courts or office, issuing commissions for the examination of witnesses or documents. Lokpal may utilize the services of any officers or investigation agency of central government or any state government.
Lokpal can recommend the central government for transfer or suspension of such public servant from the post. Central government shall ordinarily accept the recommendation of the Lokpal except where it is not feasible for administrative reason with reasons recorded in writing.
Special Courts
Central Government shall constitute special courts as recommended by Lokpal to hear and decide cases arising out of Prevention of Corruption act. Investigating officer of the Lokpal can request any evidence to be collected or facts or circumstances of the case to be examined which is available in a place in a contracting state.
Complaints against chairpersons, members and officials
Any aggrieved party can send a complaint to the president against chairperson, members. President can issue a reference to supreme court if president feels that there is prima facie a case against them.
Complaints against officials of Lokpal have to be investigated by Lokpal itself within thirty days.
Assessment of Loss and Recovery
Any loss to the public exchequer can be recovered from public servant and any other beneficiaries.
Finance, Accounts and Audit
Lokpal shall maintain accounts and forward the same to Central Government for information. Accounts of Lokpal shall be audited by CAG of India.
Declaration of Assets
Every public servant shall make a declaration of his assets and liabilities within a period of thirty days. The assets/liabilities of spouse and dependent children are included in his assets/liabilities.
If a public servant fails to declare certain assets, these would be assumed to belong to him and acquired by illegal means.
Offenses and Penalties
Anybody making false complaint can be imprisoned for minimum 2 years and maximum 5 years. This can be only imposed on the complaint by the aggrieved party.
Anything done under good faith by public servant is not covered under this act.
IAC Jan Lokpal
Jan Lokpal is a draft bill prepared by India Against Corruption. The Lokpal established under this bill consists of a chairperson with 10 other members and various officers. The exclusion list of people who can't become member or chairperson of Lokpal are non citizens, anybody against whom charges were framed by a court of law, anybody who is less than 45 years of age, any government officer who has resigned or retired within last two years.
Four members need to be with legal background, which means should have held a judicial office in territory of India for ten years or been an advocate for fifteen years.
Selection Committee
Selection committee consists of Prime Minister of India, Leader of opposition in Lok Sabha, Two judges of supreme court of India and two permanent chief justices of high courts selected by collegium of all supreme court judges, CEC, CAF, all previous chair persons of Lokpal.
The selection committee selects the chairperson and other members from a list prepared by search committee. The search committee shall consist of 10 members, 5 members shall be selected by selection committee from amongst the retired chief justices of india, retired CECs and retired CAGs with impeccable reputation of integrity.  5 members shall be co-opted by search committee.
Search committee shall make a list and put it on a website to invite comments from people. After selecting people, the search committee shall ascertain their willingness.
Powers and functions
The Lokpal shall have superintendence over investigation of offenses involving any act of corruption. He will receive complaints from whistle blowers, receive complaints against any officers or staff of lokpal, recruit investigating officers and get then trained in modern method of scientific investigation, to appoint judicial officers, to acquire modern equipment, to attach property and assets acquired by corrupt means. to prepare award scheme to encourage complaints from within and outside the government to report acts and evidence of corruptions, such other functions as may be necessary for proper implementation of this act.
Powers of officers under Lokpal
The investigating officer shall have all the powers vested in a Police Officer as well as powers conferred on director of enforcement under FEMA and PMLA. The member of Lokpal shall have the power of a civil court.
Proceedings of Lokpal
The Lokpal may regulate the procedure for the transaction. No act or proceeding of Lokpal shall be invalid merely by reason of any defect in the appointment of a persona acting as a member of Lokpal.
Lokpal can be removed by president on recommendation of supreme court on grounds of misbehavior, unfit to continue in office by reason of infirmity of mind of body, insolvency or engages in any paid employment outside the duties of his office.
If the complaint is frivolous, the court may impose a fine and one year imprisonment.
Any order passed by Lokpal shall be to the writ jurisdiction of High Court under article 226 of constitution  Ordinarily high court shall not stay the order, if it does, it will have to decide the case within two months, else the stay would be deemed to have been vacated and no further stay could be granted.
The CAG shall conduct an annual financial and performance audit of Lokpal. A parliamentary committee shall do an annual appraisal of the functioning of Lokpal. The Lokpal shall submit a compliance report, mentioning detailed reasons where it does not accept the recommendations of this committee to the parliament.
Complaints Authority
Each state would establish a complaints authority of 5 members that would be selected and nominated by a committee of 3 persons consisting of the chief justice of high court of state, chairman of state lok ayukta, and the chairman of state human rights commission. The complaints received against any officer or staff of lokpal shall be inquired by complaints authority in a public hearing within 2 months of receipt of payment.
Investigation against high functionaries
For investigating, prime minister, members of council of ministers, judge of supreme court or high court, member of parliament, the 7 member bench of lokpal has to grant permission for investigation.
Removal of difficulties
If any difficulty arises in giving effect to provisions of this act, the central government may, on the recommendation of Lokpal, by order, non inconsistent with the provisions of this act, remove the difficulty provided that no such order shall be made after the expiry of a period of 2 years from teh date of commencement of this act.
Timely Completion
Each investigating officer shall endeavor to complete the investigation of an offense within a period of 6 months, in any case the period can not exceed 18 months. Special courts trying offense shall complete the trial within maximum period of 12 months.
Whistle Blowers
Whistle blowers and their identities shall be protected.
Penalties and Punishments against corrupt public servants
The punishment shall not be less than six months of rigorous imprisonment and may extend to imprisonment for life. If the beneficiary is a business entity, fine upto five times the loss caused to public shall be recovered from the accused and may be made from the assets of business entity and from the personal assets of its managing directors if the assets of the accused person are inadequate.
If any company or its directors are convicted for any offense under prevention of corruption act, the company and all the companies promoted by any of that company's promoters shall be blacklisted for any government contract in future.
Any public servant convicted under PCA shall stand removed from his office.
Grievance Redressal System
Each public authority shall prepare a specific charter within a reasonable time not exceeding one year from the coming into force of this act. Each public authority shall designate an official called Public Grievance Redressal officer. The senior most officer will be designated as public grievance redressal officer. It shall be the duty of the grievance redressal officer to get the grievance redressed within a period of 30 days from the receipt of the complaint. A complain to lokpal can be made if grievances are not redressed within 30 days, lokpal after hearing grievance redressal officer would impose suitable penalty not exceeding Rs. 500/- for each day's delay but not exceeding Rs. 50,000/- to be recovered from salaries of Grievance Redressal Officer. There shall be atleast one officer of the Lokpal in each district to receive grievances who shall be called an appellate grievance officer.
Budget of the Lokpal is les than 0.25% of the total revenue of the government of india.
Seizure and confiscation of property
The special court will pass an order for confiscation of all the assets and properties that have been acquired by the corrupt practices of the convicted public servants.
Public Servants Property Statement
Each public servant shall submit to the head that public authority a statement of his assets and liabilities and those of the members of his family which shall include their sources of income.
If it is found that public servant owns some property that was not disclosed in statement of his assets, the property would be liable to be confiscated by the Lokpal.
The anti corruption branch of CBI shall form part of investigative wing of the Lokpal.
If briber gives timely information to the Lokpal about giving of bribe by him with entire evidence for purpose of getting concerned bribe taker caught and convicted he shall be granted immunity from prosecution provided he also relinquishes all the illegitimate benefits which he had received by giving of that bribe.
Collective and Concurrent Lokpal Anti Corruption and Grievance Redress Measures- by the NCPRI
The NCPRI has taken a very different approach to eradication of corruption and suggest a basket of measures to tackle corruption.
It suggests following measures to be taken,
  • Strengthen current Lokpal bill draft by government
  • Reform existing Central Vigilance Commission Act, 2003
  • Strengthen existing Judicial Accountability and Standards Bill
  • Creation of National Law for Public Grievances Redressal
  • Strengthen existing Public Interest Disclosure and Protection of Persons making the Disclosure Bill 2010
  • Prime Minister, Ministers and Members of Parliament, Government Servants (Class 1) -- Covered under National Anti corruption Lokpal
  • Government Servants (Middle Level) -- Covered under Central Vigilance Commission
  • Government Servants (Lower Level) -- Covered under PCA with appellate jurisdiction with CVC and SVC
  • Corporates and NGOs -- Covered under National Anti-Corruption Lokpal as co-accused
  • Judges of supreme court and high court -- Covered under National Judicial Accountability and Standards Bill
Selection Procedure
The selection committee shall meet periodically to select members of the various commissions constituting basket of collective and concurrent Lokpal Anti Corruption and Grievance Redress Measures. The search committee to provide common pool of applicants from which selection committee will allot members.
NCPRI position paper, PM under Lokpal
NCPRI position paper on Anti-Corruption Lokpal evaluates specific issues of Prime Minister under Lokpal. It identifies specific reasons why prime minister can't be treated as all other government servants and it also makes it clear why PM needs to be under Lokpal. It also articulates a formula that I think is reasonably sound to prevent misuse.
  • For launching investigation against PM, the complete bench of Lokpal shall, based on the evidence available, recommend an investigation and make a reference to supreme court which will examine available evidence. Once supreme court concurs with Lokpal, Lokpal after making sure that evidences and witnesses are safeguarded, serve a notice to ruling dispensation and give them 15 days to make alternative arrangement and then continue with investigation. Also Lokpal shall deal with complaints related to actions done by prime minister and not worry about situations where prime minister can be held responsible as head of the government and cabinet but is not directly involved. No Vicarious Liability.
NCPRI position paper, Exclusion of higher judiciary
Since supreme court has the authority to hear complaints against members of Anti Corruption Lokpal, it would be undesirable to have then hear complaints against Supreme Court Judges. An effective Judicial Accountability and Standards Bill should be taken up with National Anti-Corruption Lokpal bill to provide for anti-corruption measures against Higher Judiciary.

NCPRI position paper, Civil Servants
NCPRI suggests that while Anti-Corruption Lokpal shall take up complaints against group A and above officers of central government, rest of the officers should be investigated by CVC. CVC has not been performing very effectively, but the primary reasons of this are identified as limited, almost non-existent investigatory capacity and limitation placed by "single directive" that requires the permission of the central government to be taken before investigation can be undertaken. NCPRI suggests that investigatory capacity of CVC should be strengthened and power to grant permission should be moved to CVC itself.
Considering the PM, Ministers, and senior civil servants are individually supervisory authorities, and the MPs collectively so, as the corrupt are exposed and weeded out the overall tone of governance is bound to improve, making it more difficult and risky for the subordinate officers to continue to be corrupt. A positive message will also go out that even the most powerful are not beyond the reach of the law. It would also go a long way in removing the widespread cynicism that prevails today about how only the small fry get caught while the big fish always escape!
CVC would cover everybody except ministers, class A officers and class IV officers. First two are covered by Anti Corruption Lokpal and the last one is supposed to be covered by existing departmental methods.
NCPRI position paper, discusses the fact that Lokpal should only restrict itself to the issues related to the corruption. All other grievances needs to be addressed by Grievance redressal commission which will have decentralized offices all over the country.
Towards that end, citizen’s charters would be upgraded and integrated into a service delivery guarantee law, along the lines of the one recently enacted in Delhi and Madhya Pradesh, but with the necessary teeth and public accountability provisions. Apart from citizens charters, basic entitlements and rights would also be codified and their violation treated as a grievance.