Why we don't need this Lokpal Bill

[Barun Mitra, New Delhi]

Why we don't need this Lokpal Bill

The debate over the Lok Pal bill does not convince us of the need for
yet another Ombudsman in the anti-corruption framework or talks of
what’s to become of the existing one once the Lokpal comes into being.
The Central Vigilance Commission (CVC) is already superintending a
significant part of what’s put on the plate for the Lokpal by both
parties, including administering the Whistleblower law. Before
creating yet another agency, it is good time to undertake a regulatory
and judicial impact assessment of the proposed Lok Pal law, writes
Madhumita D. Mitra in Accontability Inititiative.


Madhumita D. Mitra, Principal Associate, Corporate LEXport
Accountability Initiative
5 Aug 2011
http://www.accountabilityindia.in/accountabilityblog/2306-why-we-dont-need-lokpal-bill

It can also be read at the following page.
http://www.indefenceofliberty.org/story.aspx?id=4187&pubid=4282

The Lokpal Bill 2011 is finally before the Parliament. This is a good
time to question whether the taxpayer should be forced to bear the
burden of creating this behemoth of an institution or whether its
objectives can be met through alternative policy prescriptions. Now is
a good time for a regulatory and judicial impact assessment of this
proposed law.

Though a norm in better run governments elsewhere, assessing the need
for legislations and the costs of enforcing them is not how we pass
laws in India. Then we fret that our laws don’t give us the outcomes
expected of them. Both the Lokpal/ Jan Lokpal Bills, despite their
well-aired differences, essentially seek to establish an institution
to enquire into acts of corruption by public servants. Both agree on
the powers to investigate and facilitate prosecution of offenders
under the Prevention of Corruption Act. Both seem to address issues
like having special courts, declaration of assets by public servants,
attachment of assets, etc.

Yet neither convinces on the need for yet another Ombudsman in the
anti-corruption framework or talks of what’s to become of the existing
one once the Lokpal comes into being. The Central Vigilance Commission
(CVC) is already doing or at least superintending a significant part
of what’s put on the plate for the Lokpal by both parties, including
administering the Whistleblower law. If this law passes, the CVC will
end up merely heading the administrative vigilance machinery advising
and monitoring departmental proceedings of Group A officers of the
Central government and the CBI, minus the anti-corruption work, will
have lost its raison d’etre.

All the reasons which defeat swift investigations and prosecution of
the corrupt like prior permission for investigation, sanction for
prosecution, special courts, asset declarations, grievance redressal,
etc. was always within the government’s power to change. The
government has now acceded to removal of some of these impediments in
its Lokpal Bill though it has left out significant issues like prior
permission for investigation and the Citizen’s Charter enforcement.

A principle element of a regulatory impact assessment includes the use
of available instruments because for a law to be effective, it must be
able to achieve the policy objective at the lowest cost to the public.
The policy goals of the proposed Lokpal and the present anti-
corruption framework being largely the same, why not give the existing
Ombudsman institution more teeth and independence with jurisdiction
over all public servants of the Union including Ministers and MPs as
well as a sterner PC Act, instead of re-inventing the wheel?

None of the proponents of the Lokpal idea have done their homework on
what the real consequences of the new law would be to the exchequer
and particularly on the court system. While the Constitution mandates
presentation of a Financial Memorandum along with the Bill to indicate
the expenditure involved in implementing a new law so that budgetary
allocations could be made, this exercise has largely remained a casual
effort limited to the expenditure on salaries of personnel if any
authority or agency is created under the proposed legislation. The
Financial Memorandum attached to the Lokpal Bill 2011 speaks of Rs. 50
crores as non-recurring and Rs. 100 crores as recurring expenditure
and put likely infrastructure costs to Rs. 400 crores. These figures
come without any judicial impact assessment to ascertain the likely
impact on the judiciary due to the enactment of this new law.

For one thing is sure, every decision of the Lokpal will end in the
court. The judiciary and also the public should know that unless
there’s money in the coffers for the additional workload in the
courts, speedy justice to nail the corrupt will remain a mirage. And
who is going to foot the bill for legal aid to the person complained
against, that laughable largesse in clause 56 of the Bill?

Energies of the proponents of the Lokpal idea and public money could
perhaps be better spent if there was some honest reflection on the
intent of the original Lokpal/ Lokayukta as thought of by the first
Administrative Reforms Commission (ARC) in 1966. The ARC had meant the
Lokpal to be an institution that would redress citizen’s grievances
and ensure high standards of efficiency, integrity and responsiveness
in the public services. So the first Lokpal Bill of 1968 appropriately
provided for creation of the Lokpal and Lokayukta “for investigation
of administrative action taken by or on behalf of the government or
certain public authorities” which would involve enquiring into
complaints based on such actions against all public servants of the
Union, including Ministers.

There is a need to distinguish maladministration and corruption.
Maladministration requires evaluating the administration against
stated policy goals or enquiring into complaints from the public. The
aim should be to help improve policy implementation, identify possible
loopholes in the law that is contributing to tardy implementation and
also identify acts of corruption and recommend prosecution of public
servants and others involved in it.

What we don't have and we want is a set up like what was suggested by
the ARC in 1966. The Karnataka Lokayukta Act 1984 modeled on the same
ARC recommendations has just delivered a damning report on illegal
mining and the people behind it. It’s mandate was to enquire into
various aspects of illegal mining during a specified period, identify
violations of the law, fix responsibility, identify loss to the
exchequer and suggest remedial measures. If there is to be Lokpal at
the Centre, let us look at the original model.