The Lokpal Debate: Lokpal must lead by example

Angry and frustrated with the depth and pervasiveness of scams and corruption, people across the country have rallied around in support of the demand for a strong Lokpal that would bring to account even the highest in the land. The ambitious Jan Lokpal (JLP) Bill seeks to correct corruption and misgovernance from top to bottom. However, in its current form (2.2), it fails to detail how this very ambitious task will be achieved, and raises questions about the accountability of its vast bureaucratic structure. It would be a pity if this law should become so unwieldy that it collapses under the volume of expectations and the burden of its immense responsibility.

Corruption arises out of the misuse of power. We must be doubly careful that we don’t end up creating another structure of potential inefficiency, corruption, and unaccountable power. Drafting a bill of this nature demands our collective attention. The 10 concerns listed below should help us focus our thoughts on building an institution that is capable of delivering what it sets out to do:

1) Practicality: The ambitious Lokpal (Centre) and lok ayuktas (states) together aim to overcome corruption and maladministration from the whole gamut of governance. This will create an edifice of expectation and frustration too huge to manage, undermining even the capacity to deliver on its core area.

2) Checks and Balances: The Jan Lokpal is empowered to investigate corruption in all wings of the state, including the judiciary.   

Use of state power should have independent oversight, but should this be vested in one body? Some eminent jurists demand that the judiciary should be covered by an independent agency - outside the Lokpal. Can this opportunity be used to demand the parallel enactment of other appropriate legislations that can enforce accountability and independent oversight over each institution?

3) Scope and Responsibility: The bill places enormous responsibilities on the entire JLP structure. These include the duty to a) investigate; b) prosecute; c) punish (in terms of misconduct and maladministration); d) ensure grievance redress; e) protect whistleblowers; and, f) even formulate policy through amending citizens’ charters. Too many roles in one institution.

4) Enhanced Police Powers: The Jan Lokpal will bring all investigating and vigilance agencies under its ambit, independent of the political executive, vested with authority with few constraints. The investigating wing has enhanced police powers, including search and seizure, tapping phones, monitoring the Internet, and even contempt powers. Only the high courts have to ensure compliance. Too much power for our police.

5) Budgets and Staff:  Independence and autonomy of institutions depend on financial independence. The Jan Lokpal perhaps steps beyond autonomy, into potential arbitrariness, when it is empowered to fix its own higher pay scales, oversee appointment of judges for special courts; and use at its own discretion for collections made through fines and recoveries of misappropriated funds.

6) Beyond the RTI: The Lokpal will have the authority to disclose all information during the course of its investigation unless it will obstruct further enquiry. Though transparent functioning of the lokpal is essential, it leaves too much potential for misuse and persecution through selective disclosure of information.

7) Accountability of the Lokpal: The JLP is premised on the analysis that the failure of all institutions of vigilance lies in lack of internal accountability alone. The JLP is also answerable only to its own superiors. What prevents the replication of shortcomings and corruption of institutions it seeks to replace?

8) Empowering the People: The Lokpal also reduces people to mere complainants. People cannot monitor the working of the JLP. They cannot ensure that a complaint reaches its logical conclusion. The “Jan” in the JLP continues to be dependent on a benevolent centralised bureaucracy. 

9) An Open Consultative Process:  Civil society members of the Joint Drafting Committee (JDC) have promised a wide and transparent consultative process. However, even the terms of reference have not been published. There is no official web site of the committee yet. There have been no public consultations announced by the JDC. Can the functioning of the JDC serve as a model of participatory democracy if it fails to open up the official platform for consultative and participatory drafting?

10) Our View: Focus and Deliver: The Lokpal bill should focus on those areas of grand corruption that most citizens cannot impact. An efficient, apex-level, transparently selected, comfortably staffed and empowered body, with an exclusive focus on fighting grand corruption could pass a message that no one is above the law. The Lokpal itself could be made accountable through strong checks and balances, and high standards of transparency and conduct.
 
Let us build an institution that can deliver and let the Lokpal lead by example; that will meaningfully deliver on the promise made at Jantar Mantar.
 
Aruna Roy is a social activist who has won the Magsaysay Award;
Rakshita Swamy works with the National Campaign for People’s Right to Information