Monday, April 11, 2011

On the 'movement' against corruption

Readers may be interested in two excellent pieces analysing the recent 'awakening' against corruption in India: Shuddhabrata Sengupta writing in Kafila and Mihir Sharma in the Indian Express (Readers may also be interested in watching Karan Thapar roast Arvind Kejriwal in this interview). I endorse Sengupta and Sharma's outrage at the preposterous provisions of the Jan Lokpal Bill and share some of their misgivings about this television-driven 'movement' against corruption. I don't know what I think about the legitimacy of Hazare's chosen means - fast unto death - but the telling comparison with the much-ignored-10-year fast by Irom Sharmila in remote Manipur is noteworthy.

One hopes that the committee set up to draft the Lokpal Bill will realise that the impunity around corruption in India is part of a larger problem with our criminal justice system more generally. The police and the prosecution are not separated from other branches of the executive and consequently lack independence and professionalism, the use of torture, 'encounter deaths' and other 'shortcuts' to deal with less influential criminals is routine, whereas impunity provisions like section 197 of the CrPC protect public servants who commit crimes. Our politicians, and indeed most people with requisite influence, manage to avoid convictions not just for corruption but for all other crimes, including murder. Nor are the politicians the only people who are corrupt - what about the corporate houses only recently exposed in the Radia tapes? Structural reform of the criminal justice system does not translate into sexy slogan, but then India Against Corruption's Jan Lokpal Bill will do nothing to address the problem of corruption, and create others we can do without.

21 comments:

Sushant said...

Tarunabh: I have heard the principal complaint against "Jan LokPal" bill as the Lokpal envisioned is a "tyrant", "all-powerful" subverting democratic institution.

But as far as I have read the provisions, the LokPal is only given powers to investigate crimes. It will have to prove charges in court. So it will not have any legislative and no judiciary powers. It will only have executive powers to investigate in a free and impartial way, which is anyway required and lacking in police today.

So am I missing anything?

V.Venkatesan said...

Tarunabh,
What is wrong if a movement is television-driven or print-media driven? What difference it makes? Do you think if a politician sat on a fast-unto-death, and if television covered it non-stop, it would have had similar impact? Therefore, what distinguishes Anna is that people felt inspired not because it was television-driven, but he was a non-political, and well-respected personality. Secondly, many including you seem to have strong views against Jan Lokpal Bill, even though its authors themselves have an open mind on this. This much is clear from Karan's interview with Arvind.

V.Venkatesan said...

I'd agree with you that Irom Sharmila's decade-long fast - uncovered live by the media - exposes the media's double standards. Therefore, it is not the fast itself that mattered to the media, but the issue, espoused by Anna, appeared to appeal to the entire nation. Sharmila's fast as well as her demands are indeed praise-worthy, but unfortunately, they could not get the nation-wide sympathy which Anna had evoked. His anti-corruption crusade became instantly popular because of the common distrust of politicians. Secondly, Anna's demand could be easily conceded by the Government which was worried by the nation-wide mobiliation of people by his movement. True, Government ought to concede Sharmila's demands as well, but I wouldn't say the difficulties in so conceding are similar.

Suresh said...

Sushant,

I couldn't access the indiaagainstcorruption website, so I am basing my opinions on the article at the NDTV website. The draft seems to say

Cases against corrupt people will not linger on for years anymore: Investigations in any case will have to be completed in one year. Trial should be completed in next one year so that the corrupt politician, officer or judge is sent to jail within two years.

Now, how can this --- trial should be completed within one year of the investigation --- be guaranteed unless the Lokpal is also the judge? On the other hand, if a case initiated by the Lokpal goes into the court system (as you suggest), then we will witness the further clogging up of an already crowded justice system. At the least, it will result in cases initiated by the Lokpal "crowding out" other cases. Is this what we want?

That aside, consider what will happen if the bill goes ahead. By all accounts, we are a very corrupt country. Even if we take into account the possibility of the Lokpal "deterring" some corruption, the chances are that she/he will have to deal with a large number of cases. What will therefore happen is that the Lokpal institution will itself become a big bloated "super-bureaucracy" with all the attendant corruption that plagues the bureaucracy in general.

In short: the medicine will most likely prove worse than the disease. And we haven't even begun discussing the other unsavoury aspects of this bill.

Corruption is a serious issue but it cannot be addressed in this way. It is frustrating that such a serious issue is being addressed in such a cavalier manner.

Tarunabh Khaitan said...

Dear both, thanks for your comments. Just a few thoughts by way of reply:

1. I do think that there is a significant problem with television in India generally, and its role played in this case is only a reflection of a larger malady. I have no doubt that TV as a medium can play a very constructive role, for some reason Indian TV, especially news channels, are yet to get there. Of course there are problems with print media too, but the opportunities of a sensible debate tend to be better.

2. As I said, I do not have firm views on the use of a fast in a democracy as a mode of protest, but what I did find disturbing was the wholesale abuse of the political class. I have made this point before on this blog, I think criticising all politics is lazy at best and dangerous at worst. It leads to a search for the saviour, a Messaiah, the totalitarian implications of which are too obvious to need pointing out. A bit more nuance in the rhetoric is essential for our democracy.

3. Problems with the Jan Lokpal Bill include imprecise, overwide and duplicated definitions (to give just two example, it defines public servant as well as government servant; also see the definitions of corruption, maladministration, misconduct and vigilance angle), the inclusion of receipients of various awards in the selection committee, empowered to investigate, prosecute, and punish under section 8(2) and police pwowers (including, presumably the power to arrest) under section 12 etc. The patchy drafting is evident from at least 4 different sections that appear to vest investigative powers to the Lokpal, all with overlapping yet distinct scope and emphasis. Despite Kejriwal's assertions to the contrary in the interview (where he capitalised on Thapar's ignorance of the legislation that created the CBI, the CBI has nowhere near the sort of powers that this body is being given.

4. I am glad that the activists are willing to negotiate this draft. I do hope that the joint committee will follow a transparent and consultative mechanism, listen to all points of views and come up with a tidy, effective and workable draft which respects separation of powers and other constitutional fundamentals.

5. I am more than a little troubled by some of the friends that Mr Hazare managed to attract to his movement. Without naming names, suffice it to say I am not convinced of their commitment to democratic and constitutional values.

Sushant said...

Tarunabh: Don't you think police powers to record FIR, file chargesheet, and arrest individuals are required for any agency investigating corruption case.

In Karnataka, I often hear of Lokayukta police doing this and that has not been of much problem afaik.

Disclaimer: I am not an expert on constitutional principles and I do not know the difference between Lokayukta police and Jan-Lokpal police powers :)

Tarunabh Khaitan said...

Dear Sushant, I think Suresh has already answered your question in part. The problem is not so much giving the Lokpal police powers, but giving it police, prosecution AND (apparently) judicial powers - the latter is inferred from its power to punish and from the point Suresh already made. Can you imagine an investigative authority also vested with the power to adjudicate and punish? Why do we have courts at all? Why not allow the police to determine guilt and dish out punishment in all cases? Because there are important constitutional principles at stake here - that of separation of powers, the rule of law, fair trial and individual liberty. Power cannot be concentrated, power must not be unaccountable, power much have checks and balances. The Jan Lokpal Bill violates all of these principles.

Sushant said...

The first time I read about one year and two year time limit, I thought that it was a limitation on LokPal. LokPal cannot keep investigating a matter for years and hold some politicians.

Suresh reading seems to suggest that the provisions need to be re-examined and clarified. It won't be legally tenable to grant judicial powers to LokPal anyway. So this is more a case for clarification rather than an argument for throwing Jan-LokPal bill.

Suresh brings in another argument "If there are lot of charges against politicians/central government officers, then LokPal will become a big bureucracy". First when Lokayukta in Karnataka is not facing this problem when it so active here, I do not see why this will be a problem for LokPal. Secondly what is wrong with a bigger investigating agency.

Sushant said...

Tarunabh: The promotion and posting of police officers is determined by the executive. How can we expect them to do a fair investigation? Isn't current system flawed as well?

And considering police is very important in shaping law and order for the state, do you think any government will make their promotion/posting independent?

Tarunabh Khaitan said...

Absolutely Sushant - the current system has huge issues and needs structural reforms. I emphasised this in the main post itself. I don't think anyone can seriously argue that corruption is not a serious issue in India that needs urgent attention. My problems are only with the specific solution that has been proposed, and some misgivings regarding the manner in which the demands have been made.

Suresh said...

First when Lokayukta in Karnataka is not facing this problem when it so active here, I do not see why this will be a problem for LokPal.

I don't know how effective the Lokayukta institution is in Karnataka. The effectiveness is in question because of the Justice Santosh Hegde resignation saga of last year.

Note that some states in India have the Lok Ayukta institution and some don't. Is it the case that those states having Lok Ayukta have lower levels of corruption? This is not clear. Indeed, Sanjaya Baru in the Business Standard writes that many people testify to the fact that there is less corruption in Gujarat than Karnataka – both ruled by the BJP – where a distinguished person holds the office of Lok Ayukta.

I have no way of knowing whether the above is true. To the best of my knowledge (and I am open to being corrected), there is no systematic academic study of the Lok Ayukta experience. The answers to these questions in particular would be interesting: (i) For the states which have implemented the Lok Ayukta system, has the incidence of corruption gone down after the system was put in place?, (ii) Do states having the Lok Ayukta system have lower levels of corruption compared to other states? (iii) From a cost-benefit perspective, is the Lok Ayukta system worth it?

The last question is not irrelevant, by the way. All initiatives cost money. Putting money into Lok Ayukta or Lokpal means that that money is not available for other uses like poverty reduction. We thus have to ask whether spending money in Lok Ayukta or Lokpal is really worth it.

I fail to understand why we are so eager to jump into the Jan Lokpal bill when even the existing experience with the Lok Ayukta has not been fully evaluated. Usually, countries make a systematic evaluation of a new policy through a "pilot" before moving to a full-scale implementation. Even then, they discover unexpected problems. In India, it looks as though data doesn't matter. We (read the elite) have made up our minds that Jan Lokpal bill is the way to go and we are going to go down that route, come what may. The problem with such an approach is that it can lead unreasonable expectations, and when those are not met, to a disillusionment with the entire system.

Finally, the concern about bureaucracy is no joke. The Karnataka Lok Ayukta has statistics on its website here [pdf file]. It is interesting to note that there were 18299 pending cases as of 31/3/09. The Lok Ayukta did manage reduce the backlog by 2514 cases over the previous year but it means that there is going to be a backlog for many years at the current rate of clearance (assuming no increase in the number of new cases). At the Lokpal level, we can expect matters to be worse. If you also want to guarantee clearance within two years (as the draft promises), there is no way other than to increase the staff --- in other words, create a big bureaucracy.

V.Venkatesan said...

The Jan Lokpal Bill does not propose a Lokpal with judicial powers. It will have only incidental powers like stopping of contract, or initiating disciplinary proceedings. It is the ordinary courts which will conduct the trial.

Tarunabh Khaitan said...

VV, I see your point - you are right that there is indeed a distinction between disciplinary penalties and criminal conviction. Even so, aren't disciplinary proceedings, which include penalties as harsh as termination of services, judicial in nature even if not conducted by a court? The CCS rules have detailed natural justice requirements for such proceedings - no such requirements are imposed under this Bill (I agree that the rules to be made under it may still impose these requirements, or that they may be inferred by courts) - even so, wouldn't you want the Bill itself to clarify these important natural justice requirements for admittedly quasi-judicial proceedings?

I admit that in light of the distinction between disciplinary penalties and criminal conviction, the argument that separation of powers has not been respected loses much of its force. So thank you for enlightening us. Other problems with the Bill remain, unless there are other issues I have missed.

In any case, since this was my main problem with the Bill, I will downgrade my characterisation of it: it may not be 'preposterous', it is still very badly drafted and in its current form overlooks important safeguards, has competing and overbroad definitions, and ignores alternative possibilities for tackling corruption by placing its faith in an over-centralised hyper-bureaucracy. Similarly, my misgivings about some aspects of the 'movement' also remain.

Sushant said...

Suresh: It is important to note that LokAyukta has disposed more cases than received between 2008-2009. Upalokayukta has disposed almost double of the number of received cases. I see a positive here.

And corruption is dependent on a number of factors. Nitish govt in Bihar is considered more honest than Laloo govt (and LokAyukta has no role in it).

Shamnad Basheer said...

Dear Tarunabh:

I just watched the Karan Thapar interview from the link you gave. Why do you say that Thapar "roasted" Kejriwal. I thought he held on pretty well and made it clear that they are not stuck on any particular version of the bill but are open to wide public consultations and feedback....

Tarunabh Khaitan said...

you think so shamnad? it has been a few days since i watched the interview, and my memory is hazy, and i dont plan to see it again, but this is what i remember of the interview:

on whether the movement was right to show such contempt for politics, after exonerating mr hazare personally (who had apparently distanced himself from this aspect of the movement), kejriwal (if i remember correctly) goes on to claim that things were better under the british! really? how much more contemptuous can one be of democratic politics?

on packing the 'civil society' side of the committee with ppl who are in favour of the jan lokpal bill already, he had no defence, except to say we will listen to all. if there are several options on the table, why do you need 5 people to represent only one of these options? saying that we are open to all ideas is not the same thing as genuine representation of a wider cross-section of ideas.

and finally, on the jan lokpal, when being grilled about its powers, he said (i think) that all laws, including that about the cbi has similar powers. one, this is simply not true - despite my concessions to VV above, this is a very powerful superbureaucracy without precedent in india. secondly, and more importantly, if the cbi already has all these powers, why do we need the jan lokpal anyway?

i thought kejriwal did rather poorly.

A student said...

Well, seeing the amount of discussion on this post, rather commenting on the article I would prefer to add my ideas in support of hazare movement.

Being a constitutional law student, I admit that for the first time I understood the meaning of the words "WE THE PEOPLE OF INDIA" given in the preamble.

I am not sure whether this act was legitimate or not, but on the second hand this cannot be discarded due to illegitimacy.

Justice Gilbert in Rayan case, said the Constitution and the laws can be well preserved by the people. Today due to hazare action it seems that now there is not only one check on the legislature that is the court but also the people. They have tend to take a participation in such event.

This seems to me a new start and I prefer that it should end.

Shamnad Basheer said...

Hi Tarun:

i am equally contemptuous of indian politics. what's wrong with that?

i think you heard him wrongly on the CBI. he was asked by thapar as to how the jan lokpal regulator could search without a warrant, when no other authority could do so in india. kejriwal answered pointing him to fact that CBI etc are agencies that have authority (in some circumstances) to search without warrants.

Tarunabh Khaitan said...

because uncritical and un-nuanced contempt for democratic politics, especially among the elite, is the breeding ground for authoritarian and fascist regimes/leaders. examples from history in other countries abound, but we have lessons to learn closer to home too. no prizes for guessing which particular indian politician has capitalised most on this feeling contempt by showcasing himself as a tough (authoritarian), messianic (no-need-for-consensus), no-nonsense (no-compromise) outsider to politics who can 'cleanse' the system of all evil (procedures as well as people).

there have been several very good columns and op-eds in the papers recently (especially the IE) dwelling on this point, including ones i linked in the main post. but to give another example, neera chandoke does a decent job of explaining the problem here.

of course there are problems with indian politics, huge ones. but does it merit contempt, especially when the price of widespread contempt is less rather than more democracy? i think not.

Shamnad Basheer said...

tarun,

you must strike a distinction between contempt for the principle of politics and contempt for how it is played out in practice. and those contemptuous of the practice of indian politics don't necessarily lead on to support for a despot as you suggest....but rather an urge to push for reforms etc...the right to free speech also means the right to express contempt for a system...if it is rotten...a very fundamental right, if i might so say....

Tarunabh Khaitan said...

absolutely shamnad. we need to make this and other distinctions. but you tell me how often is the distinction between practice and principles of democracy made by those who express contempt for politics? it is usually done without nuance - you are asking for nuance now, and that is exactly my point. i would, however, go further than you would. even the practice of politics in india cannot be held in contempt wholesale. there are honest and sincere politicians, even in india, who work very hard - just imagine the kind of disservice we do to them by attributing guilt by association, when we say they are all rotten, hang them all etc. this discourse can do with some nuance, some reflection, and some judgment. criticising politicians and policies is the life blood of democracy, holding politics itself in contempt endangers democracy.

on your other issue, i am genuinely surprised. how does the question of free speech come up? i would not dream of suggesting that those who express contempt for politics should be gagged. i certainly dont think i ever implied that should happen. they have every right to express their contempt, and it is good that they do so we can discuss it and criticise it. the right to free speech does not, and cannot, include the right not to be criticised. in fact, one of the fundamental assumptions behind guaranteeing free speech is that speech with be countered with speech, that the noisy discussions and disagreements that ensue will result in the truth prevailing. what aspect of what i have said did you think suggested the violation of anyone's right to free speech? i would be mortified if i did.

perhaps the quote apparently mis-attributed to Voltaire should have read 'I hate what you say, and while I criticise it vehemently, I will defend until my death your right to say it.'