Lokpal Bill: Building Capacity in the CAG, CVC and CBI                                       Barun Kumar Basu        US Ju...
Although the CVC, CBI and CAG of India have rendered yeoman service in highlightingcorruption and national waste, yet the ...
deputation from GOI‘s specialist Central Services and departments that would also provide in-house domain expertise to it....
Bringing in prominent citizens of established integrity and knowledge as Ministers andSecretaries to Govt. of India in IT,...
then all constitutional functionaries (including the PM), judges, etc. The ambit of Section 2(c)includes ―persons falling ...
water, monitor the performance of gardeners in public parks and sanitation staff on roads orteachers in government-run sch...
Cicero aptly put it, "A nation can survive its fools, and even the ambitious. But it cannot survivetreason from within….th...
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Jan lokpal bill article

  1. 1. Lokpal Bill: Building Capacity in the CAG, CVC and CBI Barun Kumar Basu US Justice Louis Brandeis said, ―Our government is the potent, the omnipresent teacher.For good or for ill, it teaches people by example. If the government becomes the law-breaker, itbreeds contempt for law and invites every man to become a law unto himself.‖ A euphoric nationtherefore loudly applauded as a desperate government, reeling from a slew of mega corruptioncases, meekly caved into Anna Hazare‘s demand for a joint drafting committee for the LokpalBill. The Bill itself makes for interesting reading. At once, the Lokpal is judge and prosecutor. Itseeks an amalgam of the CAG, CVC and CBI, public policy evaluators and ombudsmanempowered by a mish-mash of Central Civil Service Rules and the Special Police Establishment(SPEA) and Prevention of Corruption Acts (PCA). In democratic India, an omnipresent Lokpal cannot be the arbiter of our nation‘s destiny,indeed our conscience-keeper. Institutional integrity must not be wished away nor democraticconventions of separation of powers summarily jettisoned. Nietzsche‘s warning that ―whoeverfights monsters should see to it that in the process he does not become a monster‖ is pertinent inthis regard. The Lokpal should therefore be made a five-member body comprising three jurists, acivil servant and a prominent citizen from outside governments and be renamed the NationalAccountability Commission. The Commission would exercise the powers of a High Court withappeals lying only to the Supreme Court. All CBI Courts under the PCA would stand transferredto the Commission and work as benches for it. Appeals in corruption cases would lie only beforethe Commission. This would ease the pressure on High Courts that already have crores ofpending cases compounded by a shortage of nearly 300 judges. Unless the Commission is alsoassured of administrative and financial independence from the executive, its efforts to enforceaccountability fearlessly would remain severely constrained as has been the case with the CAGand CVC. However, this alone is not enough. The Commission must also draft an enforceable anddefinite timeline within which all pending cases would be decided, including in appeal, if any.Hearings would be mandatorily held by the Commission and its benches held on a day-to-daybasis to clear the backlog if any example is to be set. GOI would have to provide full staff andjudge complements to the Commission and its benches within a stipulated time frame. Changesin the relevant Acts and Rules that preclude unsanctioned action against officers of the rank ofJoint Secretary to GOI and above and outright dismissal of civil servants caught red-handedaccepting bribes or unable to satisfactorily explain their unaccounted wealth within a week ofbeing found, forfeiture of ill-gotten property within a month, etc. would also have to besimultaneously set in motion by GOI. What happens to the CAG, CVC and CBI then? 1
  2. 2. Although the CVC, CBI and CAG of India have rendered yeoman service in highlightingcorruption and national waste, yet the efforts of these institutions have not yielded the desiredresults, mainly owing to structural and legal constraints. The Constitution mandates CAG as anadvisory body even as it endows it with constitutional status while the CVC is a statutory butadvisory body. Both are incestuously headed by retired civil servants whose political affiliationsrather than merit determine their appointment. The CAG reports to Parliament‘s overburdenedPublic Accounts and Public Undertakings Committees that too enjoy only advisory powers. TheCAG, CVC and CBI are also dependent on uncertain government grants and conformity withcivil service rules for their human resources. The CAG has only about 500-600 officers in theIndian Audit and Accounts Service and a staff of about 50,000 when compared to the less than300 officers and staff of the CVC. These skeleton staff covers about 130 GOI Ministries anddepartments and their several thousand subordinate and attached offices, 26 states and UnionTerritories, few thousand PSUs and Autonomous Bodies, several thousand panchayats, et al. TheCVC is also charged with covering the vast financial services sector of our economy. The CBIcovers the entire national government plus much more with its skeleton staff. Therefore CAG,CVC and CBI need to be empowered to create their own establishments, independent of theother civil services, a captive budget, engage experts at salaries determined by the institutions,hire interns and absorb deserving ones into the Indian Audit and Accounts Service or CVC/CBI‘sservice, et al instead of creating a parallel authority in the Lokpal. Recruitment rules for the posts of CAG and CVC/VCs currently favor onlysuperannuating bureaucrats. Essential qualifications should therefore be prescribed for posts ofthe CAG and CVC and age restriction on such posts relaxed to 70 years or six years of service,whichever is earlier. The CAG and CVC/VCs should also be debarred from any form ofemployment under the Govt. and/or under the Constitution or in the private sector aftersuperannuation/resignation from service. Like the CVC, the CAG too should be a three-memberbody with a legal & public policy, accounting & audit and administrative member each on thelines of the Audit Commission in France. The VK Shunglu panel too has recently proposed amulti-member CAG, although this was not suggested while Mr. Shunglu himself was the CAG.The archaic and toothless CAG‘s (DPC) Act, 1971 needs to be repealed and the draft PublicAudit Bill submitted by CAG to GOI urgently passed in Parliament. In its eagerness to check thecorruption monster, the Jan Lokpal Bill ignores fundamental infirmities in the legalenvironments, staffing and budgets of the CAG, CVC and CBI over the decades. The CBI too is severely understaffed by a third and often has to rely on outside expertopinion particularly in matters relating to white-collar corruption. The tendency to view allinvestigations and intelligence gathering, domestic or foreign, as solely a policial activity is oftencounterproductive and causes precious time to be lost. Warren Buffet‘s warning is apt, ―Inlooking for people to hire, look for three qualities: integrity, intelligence and energy. And if theydont have the first, the other two will kill you.‖ Instead of looking for police officers that Statesare unwilling to remove from law and order duties, the CBI‘s staffing should include officers on 2
  3. 3. deputation from GOI‘s specialist Central Services and departments that would also provide in-house domain expertise to it. The CBI should also look at hiring young graduates as interns andtraining them up as professional investigators. Like CAG and CVC, the CBI needs to be freedfrom the clutches of civil service regulations and have a captive budget of its own. The FBI isnot all police but its effectiveness is awesome – a possible role model not just in name. TheCBI‘s independence from the CVC needs to be urgently restored and it should form part of thePrime Minister‘s Office. Denial of records and inordinate delays in their release by audited offices to CAG isfrequent as are delayed or no replies to audit objections. Similarly, the advice of the CVC isoften not paid heed to or sanctions for prosecution withheld. The CAG and CVC also do nothave powers of search and seizure, mandated examination of civil servants, contractors andsuppliers, recoveries of lost revenue, etc. or the powers of a civil court. Unpunished dilatorytactics by accused public servants similarly, makes a mockery of the CBI‘s cases. Evidently, thedraftsmen of the Jan Lokpal Bill, like good country doctors, believe that it is better to chop offthe head to cure the headache. Instead of attempting to depoliticize, build capacity and add teethto established structures, the Bill proposes a fundamental change in the Constitution‘s separationof powers. The draftsmen also seem to suffer from the mistaken belief that public servants haveno fundamental rights even if they are caught red-handed. Therefore the Lok Pal cannot be aparallel khap panchayat. Hazare‘s ‗victory‘ is a hard-earned one. It would indeed be this nation‘s greatestmisfortune if such unparalleled public support did not bring accountability of its governors.Cicero aptly put it, "A nation can survive its fools, and even the ambitious. But it cannot survivetreason from within….the traitor is the plague.‖ Institutions like the CAG and CVC have stoodus in good stead for the first half-century after Independence. It is time to empower theseagencies to tackle white collar crime and bring in men and women of integrity and knowledge tolead and staff them. As Samuel Johnson pithily put it, ―integrity without knowledge is weak anduseless, and knowledge without integrity is dangerous and dreadful.‖The author is a former civil servant who has served as Ambassador of India in Cuba, Chile andBolivia. He also served as Director of the erstwhile Historical Research Division in the Ministryof External Affairs and was a Visiting Fellow at the Research Institute on Communist Affairs atColumbia University (USA) while Dr. Zbigniew Brzezinski was its Director. He has alsorepresented India in international fora and is an expert on the Sino-Soviet border dispute andIndia’s border issues with Sri Lanka and Myanmar. 3
  4. 4. Bringing in prominent citizens of established integrity and knowledge as Ministers andSecretaries to Govt. of India in IT, Commerce, Finance, Power or Rural Development ministries,metropolitan Municipal Commissioners, CIC, CAG, CVC and CEC would certainly break thejaded and discredited Burra Babu culture at policy-making levels of the Govt. of India. NandanNilekani now and NP Sen, Homi Bhaba, Vikram Sarabhai, SS Bhatnagar, K. Zachariah, PCMahalanobis, S. Gopal, Mantosh Sondhi in the past, are shining examples of men from outsidethat joined government without the baggage of the past. Even among bureaucrats, LK Jha, IGPatel, Sir Girija Bajpai, NR Pillai, Arun Roy, S. Ranganathan, V Narahari Rao and Subimal Duttspring to mind – not all of them came from a single part of the civil service and all were men ofsterling integrity who did not suffer deficits of ethics and governance. With their extensivedomain knowledge and courage of conviction, they created institutions and policy, mostlymissing. Should the government not therefore earmark 50% posts in the Central Secretariat atJoint Secretary/Additional Secretary/Secretary for outsiders? Over the last six decades, suitability-neutral recruitments to the bureaucracy in the guiseof social, geographical, economic and linguistic equity after Independence have adversely alteredthe complexion of the civil service and allowed segments of it to become powerful, clannish,greatly corrupt, grossly inefficient and insufferably arrogant. Party to such nepotism is theMinister who, as Edward Gibbon said is ―an absolute monarch…..rich without patrimony…..charitable without merit.‖ How else would one explain a major ministry in the Govt. of Indiamanned by senior IAS officers from a single state cadre or less than qualified officers holdingkey posts in Union Ministries by patronage than merit? Would the Lokpal look into this criticalissue? Models of governance are changing fast – Public-Private Partnerships (PPPs), servicesdelivered via NGOs, large-scale direct transfers of funds to the States for infrastructure andpoverty amelioration, tax administration, disinvestment in PSUs, pension funds, et al requireprofessional competence, domain knowledge and integrity to implement in the best publicinterest. Unless appointments to posts of strategic decision-makers are transparent and merit-based, incest inherent in the present hijacked private limited system would eventually and fullycorrode India‘s social and economic fabric, even as it attempts to feebly portray itself as thesecond economic giant of the 21st century. The Jan Lokpal Bill addresses the issue of punishmentbut does not redress a major root cause of such unparalleled grand corruption. Shouldtransparency and participation of doyens of civil society not be insisted upon in the matter of allsenior appointments too? If the top management is competent and prevailed upon by imminentpossibility of strong retribution for corruption, the municipal inspectors, traffic constables andthe like would think twice before harassing a common citizen for pecuniary gain. Section 2(c)(i) of the Prevention of Corruption Act (PCA), 1988 is an omnibus sectionthat covers ―any person in the service or pay of the Government or remunerated by theGovernment by fees or commission for the performance of any public duty.‖ By implication, 4
  5. 5. then all constitutional functionaries (including the PM), judges, etc. The ambit of Section 2(c)includes ―persons falling under any of the above sub-clauses are public servants, whetherappointed by the Government or not.‖ If this is enforced, where is the need to include this in theterms of the Lokpal? Instead the Lokpal could find place in lieu of Sections 3-5 of the PCA withan array of special courts reporting to him. Indeed a 3-member Lokpal vested with the powers ofthe Supreme Court for the PCA and related Acts and Rules at the head of a state wise PCA Courtvested with the powers of a High Court would create a separate fast track channel of justice andobviate the decades-long delays inherent in the present system. At least High Courts running attwo-thirds of their sanctioned strength and 3.2 crore pending cases would not be overburdened.Is this then not a much-needed systemic reform upon which the Lokpal‘s success or failurewould hinge? Section 6(2) of PCA provides for summary trials in specific cases while Section 6(2)restricts the right of appeal where the Judge ―passes a sentence of imprisonment not exceedingone month, and of fine not exceeding two thousand rupees whether or not any order undersection 452 of the said Code is made in addition to such sentence.‖ Shouldn‘t this be increased toat least five years rigorous imprisonment plus appropriation of all seized assets (beyond thenormal earning capacity of an employee) in cases where an employee is caught red-handedaccepting a bribe or physically found to be in possession of assets beyond his/her known sourcesof income? What would the Lokpal do if the PCA did not provide them a stick to beat corruptemployees with? Chapter-III of the PCA details the types of illegal gratification and prescribes punishmentfor each category, none of which extends beyond five years simple imprisonment plus a fine andfor criminal cases up to seven years. However, the quantum of punishment and fine is left to thelearned PCA judge‘s discretion. Why not adopt US law that makes it mandatory for the judge toimpose fines and punishments quantified in the law? Thus for an employee caught red-handedaccepting a bribe of say, a crore of rupees, the punishment could be three years‘ rigorousimprisonment, forfeiture of the ill-gotten money by the State and a fine of Rs. 5 lakh. It isimportant that the proposed Lokpal Bill does not provide a negotiating counter to the judiciaryagainst the State. The same punishment would be imposed on the bribe giver, apart from beingblacklisted from all government contracts for a period of five years. The most fundamental question that comes up relates to Chapter-IV of the PCA thatentrusts investigation under PCA to the CBI. The concept of social audit is yet to take off in thisland. In MNREGA, where it has to some extent, the results are startling. The governmentmachinery is already overstretched and corrupt. Then where does the government‘s lie in itsobjection to permit its subjects to partake in law making and enforcement. One is not talking ofSalwa Judum or any other form of militant vigilantism that we are witnessing in North Africaand the Middle East. What I am looking at is the right of a perfectly respectable educated citizenlike an IT engineer, a PSU engineer, the neighborhood physician, a voluble housewife and aninterior designer to inspect public works in their residential locality, check quality of potable 5
  6. 6. water, monitor the performance of gardeners in public parks and sanitation staff on roads orteachers in government-run schools? Indeed this type of social vigilantism is most desirablewhen government is withering and governance vanishing. The institution of the Lokpal is apunitive one, not one that would look into performance of government departments. Then whynot allow consumer courts to entertain complaints filed by Residents Welfare Organizations fordeficient service and empower these courts to punish and fine the rank and file of governmentoperatives at the lower level? The Jan Lokpal Bill holds the Lokpal responsible for questioning delays in public works,harassment of citizens by public servants, et al. This would seem to render internal audit andstatutory audit by the CAG of India redundant. Instead of overburdening the Lokpal, would it notbe better to pass the Public Audit Bill that has been gathering dust for over a year in Parliament?Like a three-member Lokpal, why cannot the CAG be treated similarly as a multi-memberinstitution? Empowering the CAG for search and seizure, recoveries of revenue, filing policecomplaints against delinquent public servants and requisitioning the help of state police, releasehis reports in public for without waiting for the Ministry to place his reports at their time inParliament? The CAG needs to be empowered to create his own establishment independent ofthe other civil services, a captive budget, engage experts at salaries determined by him, hireinterns and absorb deserving ones into the Indian Audit and Accounts Service, et al. The Lokpaldoes not hold any monopoly of the nation‘s conscience. Collectively, the CAG, CVC, CEC,courts and many others do. The existing PCA needs to be repealed and replaced with a new PCA that would includethe Lokpal, CAG, CVC and CBI in its ambit, each with an individual role of its own. At thesame time, ambiguous recruitment rules for senior management posts in the GOI need to berewritten providing specific mandatory qualifications for each post and recruit by publicadvertisement, keeping 50% posts for civil servants. Similarly, qualifications should beprescribed for posts of the CAG, Lokpal, CEC, CIC, CCI, etc. and age restrictions on such postsrelaxed to 70 years of age given Census 2011‘s statistics of rising longevity. Civil servantsshould also be debarred from any form of employment either under the Govt. and/or under theConstitution after superannuation/resignation from service, including to posts of CAG, CEC,CIC, CCI, etc. At the same time, the process of impeachment prescribed for certain constitutionalfunctionaries should be limited to professional misconduct only. Even then impeachment rulesshould provide for impeachment by Parliament by a simple majority of members present andvoting, instead of the present two-thirds. For acts within the purview of the PCA an order ofdismissal by the President of India would suffice. However, I entirely agree with the Jan LokpalBill in abolishing the discredited CVC that has proved to be more of a handmaiden ofconvenience for both civil servants and ministers, as the recent case of Mr. PJ Thomas shows. Anna Hazare‘s ‗victory‘ is a hard-earned one. Public euphoria and active support of theintelligentsia is what it needs to become reality. It would indeed be this nation‘s greatestmisfortune if such unparalleled public support did not bring accountability of its governors. 6
  7. 7. Cicero aptly put it, "A nation can survive its fools, and even the ambitious. But it cannot survivetreason from within….the traitor is the plague.‖ When the plague menaces a nation, the measuresto curb it should be equally, if not more, Draconian for it impinges upon our integrity andinternational self-respect, indeed our survival as a nation – the Lokpal is simply not enough.(2033 words)The author is a former civil servant who has served as Ambassador of India in Cuba, Chile andBolivia. He also served as Director of the erstwhile Historical Research Division in the Ministryof External Affairs and was a Visiting Fellow at the Research Institute on Communist Affairs atColumbia University (USA) while Dr. Zbigniew Brzezinski was its Director. He has alsorepresented India in international fora and is an expert on the Sino-Soviet border dispute andIndia’s border issues with Sri Lanka and Myanmar.Integrity without knowledge is weak and useless, and knowledge without integrity is dangerousand dreadful.— Samuel Johnson, English writer and lexicographer (1709-1784)In looking for people to hire, look for three qualities: integrity, intelligence and energy. And ifthey dont have the first, the other two will kill you.— Warren Buffet, American financier (b. 1930)A foolish consistency is the hobgoblin of little minds, adored by little statesmen, philosophersand divines.— Ralph Waldo Emerson, American essayist, philosopher and poet (1803-1880)Whoever fights monsters should see to it that in the process he does not become a monster.— Friedrich Nietzsche, German philosopher (1844-1900)”Every great institution is the lengthened shadow of a single man. His character determines thecharacter of the organization.” Ralph Waldo EmersonOur government is the potent, the omnipresent teacher. For good or for ill, it teaches people byexample. If the government becomes the law-breaker, it breeds contempt for law and invites every manto become a law unto himself.— Louis Brandeis, U.S. Supreme Court Justice (1856-1941) 7

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