India's march against corruption stumbles on flawed law execution

In the first of a 3-part series, Business Standard examines the problems plaguing India's struggle with graft

Transparency International, the global coalition against corruption, has ranked India 81st out of 180 countries in its global corruption perception index for 2017. The body advocates putting in place, among other things, laws that promote transparency and accountability, whistle-blower protection and setting up anti-corruption agencies to reduce corruption in public life.

Unfortunately, though India has all the relevant laws, their implementation has been flawed.

In 2017 the Supreme Court questioned the government as to why it had not set up the Lokpal at the Centre and the Lokayuktas at the state level as mandated by the Lokpal and Lokayuktas Act, 2013. “The present government has displayed no intention of creating an anti-corruption ombudsman so far,” says lawyer-activist Prashant Bhushan, who filed a contempt petition in this regard for the NGO Common Cause. As Common Cause readies to have its plea heard in the apex court on May 15, here’s a look at where the Lokpal Act stands today.

Whither Lokpal/Lokayuktas?

In March this year, the Supreme Court asked the chief secretaries of 12 states including Tamil Nadu, West Bengal, Jammu & Kashmir, Telangana and Manipur, why they had not appointed any Lokpal, Lokayukta or Uplokayukta. Coincidentally, this was on the same day that anti-corruption activist Anna Hazare once again went on a hunger strike demanding to know why the Lokpal and Lokayuktas had not yet been established.  

Activists say that far from implementation, the Lokpal Act has been seriously diluted by the NDA government. Section 44 of the law laid down that the disclosure of the assets of public servants, as well as those of their spouses and children, was to be made effective by July 31, 2016.  

However, that same month the government brought in the Lokpal and Lokayuktas (Amendment) Bill, which did away with the disclosure provision and was passed without any parliamentary debate. “This is a fundamental dilution,” asserts Col. Dinesh Nain, member of Team Anna. Given that illegally amassed assets are often held in the name of family members, this is a blow to the anti-corruption crusade, he adds.

Another cornerstone of the original Lokpal Act is its power to prosecute independently. However, this provision is also being amended under the Prevention of Corruption Act. Now a law enforcement agency such as the CBI or the Lokpal will have to seek the government’s permission before prosecuting a serving, or even a retired, public servant.

“This makes a mockery of the entire concept of an independent, empowered Lokpal,” says Anjali Bhardwaj of the Delhi-based citizen rights body Satark Nagarik Sangathan and the National Campaign for People’s Right to Information (NCPRI).

Why we need anti-corruption ombudsmen

The Lokpal Act empowers the Lokpal and the Lokayuktas to summon or question any public servant against whom there is a prima facie case. “The Central Bureau of Investigations (CBI) is supposed to be independent,” says Bhushan, “but in the last few years we have seen that in practice, it is not…If you consider high-profile cases of corruption, a strong Lokpal could have been a huge asset to the investigation.”

For example, in 2013, the income tax department and the CBI conducted simultaneous raids at various establishments of the Aditya Birla group of companies and discovered that off-book payments had been made to several high-ranking politicians and bureaucrats. “This case should have been investigated under the Prevention of Corruption Act by the CBI, and not by the income tax department,” says Bhushan. When Common Cause filed a case in Supreme Court in this regard, their petition was quashed by a judge who was awaiting his appointment as Chief Justice.

Perhaps an independent Lokpal would have been more effective in dealing with the case, Bhushan points out.

NCPRI activists have now written to the Prime Minister, saying: “The undue delay in implementing the Lokpal and Lokayuktas Act, in letter and spirit, has created a strong perception that your government does not wish to put in place an effective anti-corruption institutional framework.” Given the slew of high profile scams the country has seen in recent times, the need for anti-corruption ombudsmen has never been felt more acutely.

The road to the Lokpal Act

1963: Parliament discusses the idea of an anti-corruption ombudsman for the first time

1966: The First Administrative Reforms Commission recommends the formation of independent authorities at the central and state levels to address complaints against public functionaries

1968: The Lokpal Bill introduced in Parliament but not passed

2002: The Commission to Review the Working of the Constitution recommends the appointment of the Lokpal and Lokayuktas. It also recommends that the Prime Minister be kept out of its ambit

2005: The second Administrative Reforms Commission recommends that the office of Lokpal be established without delay

2011: The government forms a Group of Ministers to suggest measures to tackle corruption and examine the proposal of a Lokpal Bill

2013: Lokpal and Lokayuktas Bill passed in both Houses of Parliament

2016: Lok Sabha agrees to amend the Lokpal Act and the Bill is sent to a Standing Committee for review2018: Till date: Government yet to appoint a Lokpal