This is the stand of CPI(M). This Statement is very clear on the steps to be taken to
curb Corruption. You can not find this clarity with other parties including the new
avatars and so called crusaders
Lokpal: For An Effective Anti-Corruption Body
(Note Presented At All Parties Meeting)
Introduction
Corruption
has become a major public concern in the wake of successive scams
unfolding over the past few years. In a country like India, where
millions of people still suffer from acute poverty, hunger and lack of
socio-economic opportunities, the pillage of public resources through
corruption amounts to a crime of a very serious nature. Besides impeding
economic development, accumulation of ill gotten wealth through
corruption is widening the inequalities and ruining the moral fabric of
our society.
The
recent exposures in the 2G spectrum allocation case, CWG scam etc. have
shown how thousands of crores worth of public resources have been
illicitly cornered by a section of corporates, bureaucrats and
ministers. What is worse, tainted ministers have been allowed to remain
in office for months and the investigations manipulated, in order to
obstruct the course of justice. While corruption in high places has been
a feature of our political system for many decades, what has emerged as
a dominant trend in the post-liberalization period is a thorough
distortion of the policy-making process at the highest levels of the
government. A nexus of big corporates, politicians and bureaucrats have
matured under the neoliberal regime and is threatening to subvert our
democracy. It is clear that the current economic regime has made our
system more vulnerable to cronyism and criminality.
The
battle against corruption, in order to be effective today, can be
achieved only through a comprehensive reform of our political, legal,
administrative and judicial systems and not through one-off or
piece-meal measures. The establishment of an effective Lokpal
institution is one such measure. This needs to be complemented by other
measures. There has to be a grievance redressal set-up for citizens,
based on a legislation. There has to be a National Judicial Commission
to oversee the higher judiciary; there has to be electoral reforms to
check the use of money power in elections which is another source of
corruption. Urgent steps also need to be undertaken to reform our tax
system to plug loopholes and unearth black money, much of which is
stashed in offshore bank accounts and tax havens. Firm steps need to be
taken to break the big business-politician-bureaucrat nexus. Only a
comprehensive systemic reform can effectively curb corruption.
Lokpal Bill
The
institution of Ombudsman, which exists in many countries across the
world, has provided avenues to redress public grievances on corruption
and abuse of public office. However, the fact that the Lokpal Bill could
not be passed in the Indian parliament in four decades exposes the lack
of political will to fight corruption. Several governments in the past
have taken it up only to shelve it later under various pretexts. The
present government has also been compelled to initiate discussion on
this bill because of public outcry over successive corruption
scandals. It is imperative that a Lokpal Bill which deals with
corruption in high places is tabled in the forthcoming session of
parliament.
In
the wake of the on-going debate on what should be the scope and role of
the Lokpal, the Communist Party of India (Marxist) wishes to set out
its stand on the main issues concerning the constitution of a Lokpal.
1. Definition of Corruption
Corruption
involves a whole range of activities from bribery, influence peddling,
patronage or favour, nepotism, cronyism, electoral fraud, embezzlement,
kickbacks to officials and involvement in organized crime.
The
Prevention of Corruption Act, 1988 has defined the offences that
constitute a corrupt act. This definition requires to be widened. The
linkage between misuse of public power for private gain or enrichment is
a highly restrictive understanding of corruption. In many cases, power
is misused to benefit an entity like a private company which is not a
“person” as required under the PCA 1988. Often, there may be no
traceable kickbacks or embezzlement but there may be a huge loss to the
public exchequer and breach of public trust for example through sale of
PSUs due to a willful misuse of power.
The
definition of corruption has to be widened to include “willfully giving
any undue benefit to any person or entity or obtaining any undue
benefit from any public servant in violation of laws or rules”.
2. Clarity on Functions
The
Lokpal should essentially be a fact-finding body that receives
complaints, enquires, investigates and forward cases to Special Courts
where prima facie there is a case of corruption for prosecution and
punishment in a time bound manner. It should have powers to recommend an
enquiry and investigation suo moto. It should oversee the entire
machinery related to corruption cases at the Central level. Finally, it
should have the powers to recommend executive action and to approach
Courts when these are not accepted.
The
Lokpal should be entrusted with quasi-judicial powers and autonomy to
fulfill these functions in an independent, accountable, transparent and
time-bound manner.
The
separation of powers between legislature, executive and judiciary is a
part of the basic structure of the Constitution. The institution of
Lokpal should conform to this basic structure.
An
issue to be considered regarding the functions of a Lokpal is whether
it will deal with corruption or will it also perform functions of
grievance redressal. The CPI(M) favours separation of these functions.
There must be a separate mechanism for grievance redressal. This should
be set up by a separate legislation. The grievances of citizens about
the citizens charter etc should be brought under this set up.
3. Selection & Composition of Lokpal
The
Lokpal Act should lay down an objective and transparent criteria such
as competence, experience, qualification etc for the selection of
candidates for appointment to the Lokpal. The selection committee should
be broad-based consisting of members of the executive, leaders of
parliament, members of the higher judiciary, jurists and academicians.
The search committee constituted by the selection committee should also
be broad-based.
Composition: Apart
from the chairperson, there should be 10 members in the Lokpal. Out of
these four shall be judicial members, three can be persons with
administrative and civil service backgrounds and the other three should
be drawn from fields such as law, academics and social service. There
should be no member drawn from commerce and industries just as there can
be no politician.
4. Jurisdiction
While
corruption in high places has to be tackled on a priority basis, for
the ordinary citizen, it is the corruption faced by them in daily life
and in dealings with public authorities that also needs to be urgently
taken up. Much of this sphere of corruption falls in dealings with
authorities at the states-level. The Lok Ayuktas set up on the lines of
the Lokpal should bring all state government employees, local bodies and
the state corporations under their purview. Further, a citizen’s
grievances redressal machinery that we have proposed be set up
separately, should address all grievances regarding delivery of basic
services and entitlements for citizens.
a) Prime Minister:
The Prime Minister should be brought under the purview of the Lokpal
with adequate safeguards. The office of Prime Minister along with all
public servants was brought under the purview of Lokpal by the V.P.
Singh Government in 1989 and in all subsequent draft legislations, the
Prime Minister has been placed under the Lokpal. In fact a
Parliamentary Standing Committee headed by Shri Pranab Mukherjee had
made precisely this point while examining the 2001 Lokpal Bill. For the
first time since 1989, this government presiding over a large number of
scams, is unwilling to ensure accountability of the highest executive
office. Clearly, all public servants of the Union Government
within the definition in the Prevention of Corruption Act, which
includes the Prime Minister, must fall within the purview of the Lokpal.
b) Judiciary: The
judiciary too needs to be brought under scrutiny and made more
accountable, and the stringent requirement of prior permission and
sanction from the Chief Justice to file FIRs and investigate corruption
charges has resulted in a de facto immunity to them. But the proposals
to bring them under Lokpal encroach upon the constitutionally guaranteed
independence of the Supreme Court. If a mere allegation of mala fide is enough for the Lokpal to start an inquiry into the actions of judges, it may not allow judges to act without fear.
Complaints
about corruption against the judges of the Supreme Court and the High
Courts should be handled by a separate body, the National Judicial
Commission. This Commission should take care of the appointments in the
higher judiciary and oversee their conduct and enquire into the
complaints of corruption. For this, necessary legislation will have to
be passed. The Judicial Standards and Accountability Bill, 2010 is
woefully inadequate for this purpose.
c) Members of Parliament: At
present, the scrutiny of the conduct of Members of Parliament with
regard to any corrupt practice is weak and unsatisfactory. For Members
of Parliament, Article 105 of the Constitution provides protection with
regard to freedom of speech and voting. The real issue is how to ensure
that this freedom and protection does not extend to acts of corruption
by Members of Parliament.
This
can be done through an amendment to Article 105, on the lines
recommended by the National Commission to Review the Working of the
Constitution”.
Alternatively,
if feasible, there can be legislation that if any Member of Parliament
indulges in any act of corruption that motivates his or her action in
Parliament (voting, speaking etc.), then this act falls within the
purview of the Prevention of Corruption Act and the IPC.
5. Lok Ayuktas
In the states, Lok Ayuktas should be set up on the model of the Central Lokpal.
6. Protection of Whistleblowers
Whistleblowers
must be protected in order to combat corruption. Monitoring and
ensuring protection of whistleblowers can be a part of the mandate of
Lokpal, but this needs a comprehensive statutory backing. The provisions
of the Public Interest Disclosure (Protection of Information) Bill, 2010 needs to be strengthened and the bill enacted expeditiously.
7. Big Business-Public Servant Nexus
It
is necessary to recognise that an important source of corruption since
liberalisation stems from the corrupt nexus between big business and
public servants. It is necessary for the Lokpal to have investigations
in cases which involve business entities to recommend cancellation of
licences, contracts, lease or agreements if it was obtained by corrupt
means. The Lokpal should also have the power to recommend blacklisting
companies from getting government contracts and licences. Similarly, if
the beneficiary of an offence is a business entity, the Lokpal should
have the power to recommend concrete steps to recover the loss caused to
the public exchequer. The government should normally accept these
recommendations and act upon it.
Conclusion
The
CPI(M) holds that along with a law for setting up an independent
Lokpal, simultaneous measures to strengthen the legal and administrative
framework against corruption are required. These include:
(1) Setting up of a National Judicial Commission to bring the conduct of judiciary under its purview
(2) Law to protect citizens charter for redressal of public grievances
(3) Amendment of Article 105 of the Constitution to bring MPs under anti-corruption scrutiny
(4) Electoral reforms to check money power in elections
(5) Setting up of Lok Ayuktas in the states to cover all public servants at the state-level
(6) Steps to unearth black money and confiscate the funds illegally stashed away in tax havens.
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