If Sibal is right then a deal on Jan Lokpal should be possible

BY ARUN AGRAWAL

The dream of a Jan Lokpal bill is almost over. In fact, to many it was a non-starter! The constitution of the joint panel for drafting the bill was a grudging concession to civil society by hardened politicians, who were carrying out the dictates of the Congress President to put an end to Anna’s fast at any cost.

Sonia realized that if the agitation continued it would cost the Congress dear in the state elections. And it is she who has to get Congress the votes, not Pranab Mukherjee, P Chidambaram or Kapil Sibal.

The dilemma of the Jan Lokpal bill becoming law is very well described by the following quote of Judge Posner who was quoted by Justice B. Sudershan Reddy in RIL vs RNRL case:

“If you’re worried that lions are eating too many zebras, you don’t say to the lions, ‘You’re eating too many zebras’. You have to build a fence around the lions. They’re not going to build it.”

The task before the civil society members trying to draft the Lokpal bill is indeed a daunting one because it is the lions who are entrusted with building the fence. The lions have been eating the zebras for far too long and have not built the fence (pass the Lokpal bill) for over forty years. That is why they are showing the ferocity that lions do and are insisting that they will build the fence in a manner suited to them – that is they continue eating the zebras.

It is not the inclusion or exclusion of the Prime Minister and the Judges or the Parliamentarians that is the most important issue in the proposed Jan Lokpal Bill. It is the placing of the investigative authority and the supervising agency – the CBI and the CVC – under an independent Lokpal that is the real issue.

Senior ministers, including members of the drafting committee, would not like to have their past decisions scrutinized by an independent Lokpal with an independent investigative and prosecuting agency for obvious reasons.

It was therefore very surprising that when Sibal in an interview with Karan Thapar stressed the point that the government was willing to give the Lokpal independent investigative and prosecuting powers and place the CVC and the anti-corruption branch (ACB) of the CBI under the Lokpal. It came as a big-big surprise. In fact what Sibal was saying was at variance with the earlier stand of the government. It sounded too good to be true and sounded like a gambit to trap the civil society.

If what Sibal said was indeed true then he should immediately place the tapes of the  proceedings of the drafting committee in public domain. to assure the nation that the government had indeed made the offer to the civil society in the meeting that it was willing to place the CVC and the ACB of the CBI at the disposal of an independent Lokpal.

If the tape corroborates his utterances on the TV channel then why was it not revealed to the nation? After all, the members of the drafting committee on both sides have been briefing the press on their respective points of view. More important is the fact that a deal should be possible and the nation can be saved from the long drawn out trauma of confrontation between civil society and the government.

A consensus is possible for the following reasons:

• Liberalization ushered in the era of mega corruption. It enabled some big corporates to identify the valuable assets belonging to the country and appropriate it through manipulations for a song. Most of this was done through corruption of amounts over  thousand of crores. Everything was for sale. Iron ore mines, oil resources, telecom licenses, bauxite etc. You name a national asset and it was for sale in an era when the prices of natural resources had shot up more than ten times in real terms.

• New technology enabled the telecom revolution and opened up new opportunities for corruption like the 2G scam.

• Most of the corruption is executive based and would account for more than 95 per cent of the corruption existing in India. The judiciary and the legislature cannot account for more than one 5 per cent of the corruption in India.

• Under the circumstances, when the civil society admits that the Jan Lokpal  will eliminate around 60 per cent of corruption, will it not be prudent to leave the 5 per cent for the moment and take the balance 55 per cent?

It should be remembered that the bill has to be passed by the Parliament and it would not be prudent to annoy the vast majority of them who have little opportunity to benefit from  corruption, though it is no secret that some of them are corporate lobbyists. The MPLAD scheme does give some scope but the MPs only have recommendatory powers.

The members of the legislature can be safely left out of the ambit of the Lokpal bill.

However, to take care of situation of bribing the MPs through cash in order to ensure the survival of the government, a provision should be introduced that on any matter if more than 100 MPs (the number may vary or can be a certain percentage) agree that there should be a Lokpal investigation then it will be mandatory to do so. Such a compromise will take care of situation like the one cited by Arvind Kejriwal in public meetings and will also keep the opposition MPs happy. MPs bought over by money to change sides and ensure the survival of the government will be referred to the Lokpal by the  opposition.

It should not be forgotten that the Lok Sabha did take action against 11 of its MPs who were caught in a sting operation by expelling them in the cash-for-query scam, even when the Lok Sabha, unlike the Rajya Sabha, does not have a ethics committee or rules of ethics.

A compromise/consensus along the suggested lines is desirable and will go a long way in having an effective bill passed by the legislature.

As for the other sticking point of inclusion of judges in the Lokpal bill, the issue has to be handled more delicately. The judges are sensitive to subject themselves to scrutiny by a process applicable to ordinary people. So much so that even honest and competent Chief Justices like Justice Venkatachaliah and Justice J S Verma are opposed to the idea of bringing the higher judiciary under the ambit of the Lokpal . It is a matter of fact that corruption in the judiciary has increased despite measures taken by the above mentioned judges during their tenure.

If they are advocating that the judiciary should be kept out then let them take the responsibility by getting themselves associated in the drafting of the Judicial Accountability Bill which eliminates the conflict of interest of the sitting judges judging their own and devising a time bound effective mechanism of dealing with corruption in the judiciary.

Clearly, the present proposed bill is inadequate. There should be assurance from the government and the retired judges that the Judicial Accountability Bill will be revamped and drafted in a manner that corruption in higher judiciary will be fully redressed. Let Justice Venkatachaliah and Justice J S Verma  take responsibility for drafting an appropriate bill so that posterity will judge them. The nation cannot afford to have corrupt judges.

It needs to be mentioned that when the Law Ministry introduced a wholly inadequate Judicial Asset Bill, it was opposed by the opposition and some of the MPs belonging to the ruling party on the ground that the asset declared by the judges should not be disclosed to the public.

Let us hope that with the involvement of the judges, who would bear in mind the expectation of the public on the issue of corruption in the judiciary and the sensitiveness of the MPs, will results in a bill that meets the demands of civil society to a large measure.

On the question of including the Prime Minister, the government should be willing to bring the Prime Minster under the ambit of the Lokpal. Most major scams are cabinet approved decisions and the concerned Minister cannot be allowed to go scot-free merely because some part of the decision making also involved the Prime Minister. There is unity among the opposition parties to include the PM under the bill.

It should be understood that the cabinet colleagues want the Prime Minister out of the Lokpal ambit for their own safety. For example, the appointment of an advisor with secretary rank may be on account of nepotism by a particular Minister but because the appointment is approved by the PM the concerned Minister will escape accountability.

As for the grievance part of the Lokpal bill, making the lower bureaucracy accountable to the Lokpal should not be a deal breaker as there is no conflict of interest between the government and the civil society. In fact it is in their interest of the government to ensure greater efficiency through a corruption free bureaucracy .

If the major points of disagreement are taken care of then the civil society should seriously consider a compromise, more so if the government is willing to place the CVC and the ACB of the CBI at the disposal of an independent Lokpal.

It is not only important that the Lokpal should have its own investigative and prosecuting body but should have adequate staff, courts etc to deliver on all corruption related  issues.

(Arun Agrawal is the author of the book Reliance: The Real Natwar)