Corruption

What's Inside

India has recently been witnessing scams of all sorts such as IPL scam, Commonwealth Games 2010 scandal, 2G allocation scam. All these scams involved politicians and bureaucrats at highest places, which has shaken the conscience of the nation. Despite public outcry, no worthwhile investigations are going on in any one of them. This is because of several systemic deficiencies in India's anti-corruption systems.

India against Corruption campaign (http://www.indiaagainstcorruption.org/) is not aligned to or against any political party. It feels that every political party has misused its position whenever they have been in power or otherwise. Therefore, it is extremely important that the citizens of this country unite to demand systemic changes. India Against Corruption is a movement of several concerned citizens of India who have come together (many more are joining in) to demand comprehensive reforms of anti-corruption systems in India

COMMON CAUSE (http://www.commoncause.in/aboutus.php), a registered Society with membership all over the country and operating on All India basis, has earned reputation and credibility as an Organisation dedicated to public causes for seeking redress for problems of the people. Its initiative in public interest litigation, for solving the common and collective problems of the people, has greatly contributed to the evolution and spread of the system in the country and its adoption by the people on a substantial scale for effecting redressal of public grievances. A large number of writ petitions have been filed by the organisation in the Supreme Court and Delhi High Court, and quite a few important cases have been taken to the National Commission established under the Consumer Protection Act. The very first case taken up by COMMON CAUSE, almost two decades ago soon after its establishment, related to the problems of pensioners. Almost four million pensioners benefited from the three important decisions which the Organisation was able to secure from the Supreme Court, relating to the extension of liberalisation of pension, restoration of commutation of pension and extension of the scheme of family pension.

Minutes of Meeting (see the link: http://www.indiaagainstcorruption.org/doc/Reforms_needed%5
B1%5D.pdf)

The following met at IIC on 10th August 2010 from 2 pm to 6 pm to discuss the deficiencies in present anti-corruption systems in our country and what steps need to be taken to address these deficiencies.

1. Justice Santosh Hegde, Karnataka Lokayukta

2. Mr J M Lyngdoh, former Chief Election Commissioner
3. Mr P Shankar, former Central Vigilance Commissioner
4. Prashant Bhushan, Advocate, Supreme Court
5. Mr Kamal Jaswal, Director Common Cause
6. Mr Shekhar Singh, Eminent social activist
7. Mr Nikhil Dey, Mazdoor Kisan Shakti Sangthan
8. Mr Arvind Kejriwal, Social activist
9. Mr Sarvesh Sharma, Common Cause
10. Mr Suhas Borkar, social activist and media personality

Mr Pratyush Sinha, present Central Vigilance Commissioner, attended the meeting for sometime, more as an observer.

Deficiencies in the present anti-corruption systems

Central Government level:

At central Government level, we have Central Vigilance Commission, Departmental vigilance and CBI. CVC and Departmental vigilance deal with vigilance (disciplinary proceedings) aspect of a corruption case and CBI deals with criminal aspect of that case.

Central Vigilance Commission: CVC is the apex body for all vigilance cases in Government of India.

• However, it does not have adequate resources commensurate with the large number of complaints that it receives. CVC is a very small set up with a staff strength less than 200. It is supposed to check corruption in more than 1500 central government departments and ministries, some of them being as big as Central Excise, Railways, Income Tax etc. Therefore, it has to depend on the vigilance wings of respective departments and forwards most of the complaints for inquiry and report to them. While it monitors the progress of these complaints, there is delay and the complainants are often disturbed by this. It directly enquires into a few complaints on its own, especially when it suspects motivated delays or where senior officials could be implicated. But given the constraintf of manpower such number is really small.

• CVC is merely an advisory body. Central Government Departments seek CVC’s advice on various corruption cases. However, they are free to accept or reject CVC’s advice. Even in those cases, which are directly enquired into by the CVC, it can only advise government. CVC mentions these cases of non-acceptance in its monthly reports and the Annual Report to Parliament. But these are not much in focus in Parliamentary debates or by the media.

• CVC cannot direct CBI to initiate enquiries against any officer of the level of Joint Secretary and above on its own. The CBI has to seek the permission of that department, which obviously would not be granted if the senior officers of that department are involved and they could delay the case or see to it that permission would not be granted.

• CVC does not have powers to register criminal case. It deals only with vigilance or disciplinary matters.

• It does not have powers over politicians. If there is an involvement of a politician in any case, CVC could at best bring it to the notice of the Government. There are several cases of serious corruption in which officials and political executive are involved together.

• It does not have any direct powers over departmental vigilance wings. Often it is seen that CVC forwards a complaint to a department and then keeps sending reminders to them to enquire and send report. Many a times, the departments just do not comply. CVC does not have any really effective powers over them to seek compliance of its orders.

• CVC does not have administrative control over officials in vigilance wings of various central government departments to which it forwards corruption complaints. Though the government does consult CVC before appointing the Chief Vigilance Officers of various departments, however, the final decision lies with the government. Also, the officials below CVO are appointed/transferred by that department only. Only in exceptional cases , if the CVO chooses to bring it to the notice of CVC, CVC could bring pressure on the Department to revoke orders but again such recommendations are not binding.

• Appointments to CVC are directly under the control of ruling political party , though the leader of the Opposition is a member of the Committee to select CVC and VCs. But the Committee only considers names put up before it and that is decided by the Government. The appointments are opaque.

• CVC Act gives supervisory powers to CVC over CBI. However, these supervisory powers have remained ineffective. CVC does not have the power to call for any file from CBI or to direct them to do any case in a particular manner. Besides, CBI is under administrative control of DOPT rather than CVC.

• Therefore, though CVC is relatively independent in its functioning, it neither has resources nor powers to enquire and take action on complaints of corruption in a manner that meets the expectations of people.

Departmental Vigilance Wings: Each Department has a vigilance wing, which is manned by officials from the same department (barring a few which have an outsider as Chief Vigilance Officer. However, all the officers under him belong to the same department).

• Since the officers in the vigilance wing of a department are from the same department and they can be posted to any position in that department anytime, it is practically impossible for them to be independent and objective while inquiring into complaints against their colleagues and seniors. If a complaint is received against a senior officer, it is impossible to enquire into that complaint because an officer who is in vigilance today might get posted under that senior officer some time in future.

• In some departments, especially in the Ministries , some officials double up as vigilance officials. It means that an existing official is given additional duty of vigilance also. So, if some citizen complaints against that officer, the complaint is expected to be enquired into by the same officer. Even if someone complaints against that officer to the CVC or to the Head of that Department or to any other authority, the complaint is forwarded by all these agencies and it finally lands up in his own lap to enquire against himself. Even if he recuses himself from such inquiries , still they have to be handled by those who otherwise report to him. There are indeed examples of such absurdity.

• There have been instances of the officials posted in vigilance wing by that department having had a very corrupt past. While in vigilance, they try to scuttle all cases against themselves. They also turn vigilance wing into a hub of corruption, where cases are closed for consideration.

• Departmental vigilance does not investigate into criminal aspect of any case. It does not have the powers to register an FIR.

• They also do not have any powers against politicians.

• Since the vigilance wing is directly under the control of the Head of that Department, it is practically impossible for them to enquire against senior officials of that department.

• Therefore, , the vigilance wing of any department is seen to softpedal on genuine complaints or used to enquire against " inconvenient" officers.

CBI: CBI has powers of a police station to investigate and register FIR. It can investigate any case related to a Central Government department on its own or any case referred to it by any state government or any court.

• CBI is overburdened and does not accept cases even where amount of defalcation is alleged to be around Rs 1 crore.

• CBI is directly under the administrative control of Central Government.

• So, if a complaint pertains to any minister or politician who is part of a ruling coalition or a bureaucrat who is close to them, CBI's credibility has suffered and there is increasing public perception that it cannot do a fair investigation and that it is influenced to to scuttle these cases.

• Again, because CBI is directly under the control of Central Government, CBI is perceived to have been often used to settle scores against inconvenient politicians.

Therefore, if a citizen wants to make a complaint about corruption by a politician or an official in the Central Government, there isn’t a single anti-corruption agency which is effective and independent of the government, whose wrongdoings are sought to be investigated. CBI has powers but it is not independent. CVC is independent but it does not have sufficient powers or resources.

At State level:

The position if anything is worse in the States. All vigilance agencies (like state vigilance department, departmental vigilance wings) and anti-corruption agencies (like anti-corruption department of state police, CID etc) are directly under the control of state government and therefore, ineffective in fairly investigating corruption cases against their political bosses. In some states, we have the institution of Lokayuktas.

Lokayuktas:

• Lokayuktas cannot initiate investigations on their own. They have to seek permission of state government to investigate cases involving officials above certain levels.

• In some states, vigilance department has been given powers over bureaucrats and Lokayuktas have been given powers only over politicians. Such division of jurisdiction hampers investigations. So, in a case involving both politician and bureaucrats (which is the case most of the times), both Lokayukta and the vigilance department feel handicapped.

• Lokayuktas merely have advisory roles. They do not have the powers to directly initiate prosecution. They make recommendations to the government, which may or may not agree with those recommendations.

• They also do not have adequate resources to investigate the large number of complaints that they receive.

• Lokayukta is appointed by the state government in an non-transparent and arbitrary manner. In some states, their independence has been seriously eroded.

Therefore, there isn’t any effective anti-corruption agency either at the centre or at state level, which is independent of political executive and which has the powers and resources to entertain and investigate any complaint of corruption and then prosecute the guilty people.

Recommendations:

a. Central Government should immediately pass a strong and effective Lokpal Bill on the following lines. Those states, which already have Lokayukta Acts, should amend their Lokayukta Acts on the following lines. Those states, which do not have Lokayukta Acts, should pass Lokayukta Acts on the following lines.

b. Lokpal at the Centre and Lokayukta at state level should be made the single apex, independent and effective anti-corruption agency.

c. Lokpal/Lokayukta should be a multi-member body. It could have members from judiciary, legal backgrounds, administrative backgrounds, social activists etc. The Chairman of Lokayukta/Lokpal need not be a person from judiciary only.

d. All vigilance agencies should be brought directly under their control. In states, state vigilance departments and departmental vigilance wings should be merged with Lokayukta. This was done in Karnataka. State vigilance department was merged in Lokayukta when Karnatak Lokayukta was created in 1984.

e. At Centre, CVC should be placed under the superintendence of the Lokpal. All departmental vigilance wings should be placed directly and completely (including administrative control) under the control of CVC. These departmental vigilance wings would continue working from the offices and places from where they are working presently. However, CVC would ensure that the officials get rotated between different departments, so that an official does not enquire against officers of his own parent department. CVC would then be able to seek compliance of its directions from these departmental vigilance wings. There would hence, be no need to create new posts or incur any extra expenditure.

f. At state level, the anti-corruption departments of state police and that portion of CID which deals with corruption cases, should be completely (both administratively and functionally) transferred to Lokayukta. Likewise at Central level, that part of CBI, which deals with corruption cases, should be completely (both administratively and functionally) transferred to Lokpal.

g. Lokayukta and Lokpal would have jurisdiction over both politicians and bureaucrats. The vigilance wing under Lokayukta and CVC under Lokpal would deal with vigilance aspect of any case. The anti-corruption wing under Lokayukta or that portion of CBI which has been transferred to Lokpal, would deal with criminal aspect of any corruption case. Offices of Lokpal/Lokayukta would be declared as police stations to enable them to register cases.

h. Lokayukta/Lokpal should have complete autonomy:

• This should include financial autonomy. Their fund requirements should be charged to the Consolidated Fund of India in case of Lokpal and to the Consolidated Fund of respective state in the case of Lokayukta.

• They should have complete autonomy to select their own staff, even if it needs to be employed from outside.

i. Once enquiry (in vigilance cases) or investigations (in criminal cases) are over in any case, the same shall be presented before the entire Lokayukta/Lokpal. After hearing the matter and after hearing the complainant and the accused, the Lokayukta/Lokpal may decide to either impose penalty (in vigilance cases) or proceed with prosecution (in criminal cases) or drop the case on lack of merits or direct further investigations/enquiry. Lokayukta shall not need to seek any sanction for prosecution from anyone. Wherever it is needed, it shall be deemed to have been granted, once it has been granted by Lokayukta/Lokpal.

j. Advice of Lokpal/Lokayukta shall be binding on the government on vigilance matters. In criminal cases, Lokayukta/Lokpal will directly initiate prosecution.

k. For legal purposes, Lokpal/Lokayukta would need to be declared as police officers under section 36 of the Cr.P.C.

l. All records related to a case shall be public after enquiry/investigation is complete.

m. All complaints filed in Lokpal/Lokayukta will have to be compulsorily enquired/investigated, preferably in a time bound manner.

n. Lokpal/Lokayukta should have the following powers:

• They should have the powers of a civil court to summon any officers and documents.

• They should also have the powers of search and seizure.

• They should also have the powers to ensure compliance of their orders. This could include financial penalties also.

• If corruption is going on in some case while investigations are on, Lokayukta/Lokpal shall have the powers to issue interim orders to stop or alter any government activity to ensure that corruption is stopped forthwith. Their orders shall be binding.

o. Lokpal should be selected in the following manner:

• A search and screening committee consisting of the following members should be made. This committee could be formed through either of the following two methods:

1. The committee could consist of five members. One member could be suggested by collegium of the five seniormost Chief Justices of all High Courts. One member could be suggested by five seniormost Lokayuktas. One member could be suggested by a committee of Leaders of Opposition and Chairpersons of the two Houses of Parliament. Likewise, we can think of some more collegiums to select two more members. After a few years, one member could be suggested by a group of all predecessors of Lokpal.

OR

2. The Committee could consist of fifteen members which are heads of certain institutions and individuals holding certain positions who shall be treated as ex-officio members of this committee like Directors of say two IITs, Directors of two IIMs, Editors of two national Dailies, President of Supreme Court Bar Association, Presidents of some professional bodies etc.

• Appropriate criteria shall be made for screening and shortlisting candidates.

• The candidates would be subjected to public hearings on the lines of confirmation hearings in US, though these hearings will be for selection and not confirmation.

• On the basis of the above procedures, the Screening Committee shall recommend two times the names as there are vacancies to the Selection Committee, which will consist of Prime Minister, Leader of Opposition and Chief Justice of India.

• The Selection Committee will recommend such number of names as there are vacancies to the President for final appointment.

p. Lokayukta of a state shall also be selected similarly.

q. Whistleblower protection: Ordinarily, it shall be the duty of the police to take adequate steps to provide protection to those who complain of threats due to their blowing whistle against corruption. However, if someone is dissatisfied with the steps taken by police, then Lokayukta/Lokpal would be empowered to issue appropriate directions to the police. Lokayukta should have adequate powers to get their orders implemented from police. It was felt that in most of these cases, the identity of the whistleblower is ordinarily known. Therefore, the best deterrent against threats to whistleblowers would be, if the issues raised by them are thoroughly investigated and put on fast track so that a message goes to the corrupt that if they threaten anyone, their cases would become high priority for Lokayukta/Lokpal.

r. It would be desirable if the Government of India provides for the institution of Lokayukta and Lokpal through an amendment to the constitution on the above lines.