It is unprecedented in modern Indian History. For days now a retired military driver who has turned a crusader against corruption has drawn millions of Indians to the streets from all walks of like for his fight against corruption. What is the power of this man and his cause that has seen people support him in huge numbers. I thought I will compile both the arguments for and against Anna Hazare. I would not like to be the judge in this matter. Let India decide. But I sure would like your opinion on this subject:
FOR ANNA HAZARE:
| Issue | Our view | Government’s view | Comments |
| Prime Minister | Lokpal should have power to investigate allegations of corruption against PM. Special safeguards provided against frivolous and mischievous complaints | PM kept out of Lokpal’s purview. | As of today, corruption by PM can be investigated under Prevention of Corruption Act. Government wants investigations to be done by CBI, which comes directly under him, rather than independent Lokpal |
| Judiciary | Lokpal should have powers to investigate allegation of corruption against judiciary. Special safeguards provided against frivolous and mischievous complaints | Judiciary kept out of Lokpal purview. | Government wants this to be included in Judicial Accountability Bill (JAB). Under JAB, permission to enquire against a judge will be given by a three member committee (two judges from the same court and retd Chief justice of the same court). There are many such flaws in JAB. We have no objections to judiciary being included in JAB if a strong and effective JAB were considered and it were enacted simultaneously. |
| MPs | Lokpal should be able to investigate allegations that any MP had taken bribe to vote or speak in Parliament. | Government has excluded this from Lokpal’s purview. | Taking bribe to vote or speak in Parliament strikes at the foundations of our democracy. Government’s refusal to bring it under Lokpal scrutiny virtually gives a license to MPs to take bribes with impunity. |
| Grievance redressal | Violation of citizen’s charter (if an officer does not do a citizen’s work in prescribed time) by an officer should be penalized and should be deemed to be corruption. | No penalties proposed. So, this will remain only on paper. | Government had agreed to our demand in the Joint committee meeting on 23rd May. It is unfortunate they have gone back on this decision. |
| CBI | Anti-corruption branch of CBI should be merged into Lokpal. | Government wants to retain its hold over CBI. | CBI is misused by governments. Recently, govt has taken CBI out of RTI, thus further increasing the scope for corruption in CBI. CBI will remain corrupt till it remains under government’s control |
| Selection of Lokpal members | 1. Broad based selection committee with 2 politicians, four judges and two independent constitutional authorities. 2. An independent search committee consisting of retd constitutional authorities to prepare first list. 3. A detailed transparent and participatory selection process. | 1. With five out of ten members from ruling establishment and six politicians in selection committee, government has ensured that only weak, dishonest and pliable people would be selected. 2. Search committee to be selected by selection committee, thus making them a pawn of selection committee 3. No selection process provided. It will completely depend on selection committee | Government’s proposal ensures that the government will be able to appoint its own people as Lokpal members and Chairperson. Interestingly, they had agreed to the selection committee proposed by us in the meeting held on 7th May. There was also a broad consensus on selection process. However, there was a disagreement on composition of search committee. We are surprised that they have gone back on the decision. |
| Who will Lokpal be accountable to? | To the people. A citizen can make a complaint to Supreme Court and seek removal. | To the Government. Only government can seek removal of Lokpal | With selection and removal of Lokpal in government’s control, it would virtually be a puppet in government’s hands, against whose seniormost functionaries it is supposed to investigate, thus causing serious conflict of interest. |
| Integrity of Lokpal staff | Complaint against Lokpal staff will be heard by an independent authority | Lokpal itself will investigate complaints against its own staff, thus creating serious conflicts of interest | Government’s proposal creates a Lokpal, which is accountable either to itself or to the government. We have suggested giving these controls in the hands of the citizens. |
| Method of enquiry | Method would be the same as provided in CrPC like in any other criminal case. After preliminary enquiry, an FIR will be registered. After investigations, case will be presented before a court, where the trial will take place | CrPC being amended. Special protection being provided to the accused. After preliminary enquiry, all evidence will be provided to the accused and he shall be heard as to why an FIR should not be regd against him. After completion of investigations, again all evidence will be provided to him and he will be given a hearing to explain why a case should not be filed against him in the court. During investigations, if investigations are to be started against any new persons, they would also be presented with all evidence against them and heard. | Investigation process provided by the government would severely compromise all investigations. If evidence were made available to the accused at various stages of investigations, in addition to compromising the investigations, it would also reveal the identity of whistleblowers thus compromising their security. Such a process is unheard of in criminal jurisprudence anywhere in the world. Such process would kill almost every case. |
| Lower bureaucracy | All those defined as public servants in Prevention of Corruption Act would be covered. This includes lower bureaucracy. | Only Group A officers will be covered. | One fails to understand government’s stiff resistance against bringing lower bureaucracy under Lokpal’s ambit. This appears to be an excuse to retain control over CBI because if all public servants are brought under Lokpal’s jurisdiction, government would have no excuse to keep CBI. |
| Lokayukta | The same bill should provide for Lokpal at centre and Lokayuktas in states | Only Lokpal at the centre would be created through this Bill. | According to Mr Pranab Mukherjee, some of the CMs have objected to providing Lokayuktas through the same Bill. He was reminded that state Information Commissions were also set up under RTI Act through one Act only. |
| Whistleblower protection | Lokpal will be required to provide protection to whistleblowers, witnesses and victims of corruption | No mention in this law. | According to govt, protection for whistleblowers is being provided through a separate law. But that law is so bad that it has been badly trashed by standing committee of Parliament last month. The committee was headed by Ms Jayanthi Natrajan. In the Jt committee meeting held on 23rd May, it was agreed that Lokpal would be given the duty of providing protection to whistleblowers under the other law and that law would also be discussed and improved in joint committee only. However, it did not happen. |
| Special benches in HC | High Courts will set up special benches to hear appeals in corruption cases to fast track them | No such provision. | One study shows that it takes 25 years at appellate stage in corruption cases. This ought to be addressed. |
| CrPC | On the basis of past experience on why anti-corruption cases take a long time in courts and why do our agencies lose them, some amendments to CrPC have been suggested to prevent frequent stay orders. | Not included | |
| Dismissal of corrupt government servant | After completion of investigations, in addition to filing a case in a court for prosecution, a bench of Lokpal will hold open hearings and decide whether to remove the government servant from job. | The minister will decide whether to remove a corrupt officer or not. Often, they are beneficiaries of corruption, especially when senior officer are involved. Experience shows that rather than removing corrupt people, ministers have rewarded them. | Power of removing corrupt people from jobs should be given to independent Lokpal rather than this being decided by the minister in the same department. |
| Punishment for corruption | 1. Maximum punishment is ten years 2. Higher punishment if rank of accused is higher 3. Higher fines if accused are business entities 4. If successfully convicted, a business entity should be blacklisted from future contracts. | None of these accepted. Only maximum punishment raised to 10 years. | |
| Financial independence | Lokpal 11 members collectively will decide how much budget do they need | Finance ministry will decide the quantum of budget | This seriously compromises with the financial independence of Lokpal |
| Prevent further loss | Lokpal will have a duty to take steps to prevent corruption in any ongoing activity, if brought to his notice. If need be, Lokpal will obtain orders from High Court. | No such duties and powers of Lokpal | 2G is believed to have come to knowledge while the process was going on. Shouldn’t some agency have a duty to take steps to stop further corruption rather than just punish people later? |
| Tap phones | Lokpal bench will grant permission to do so | Home Secretary would grant permission. | Home Secretary is under the control of precisely those who would be under scanner. It would kill investigations. |
| Delegation of powers | Lokpal members will only hear cases against senior officers and politicians or cases involving huge amounts. Rest of the work will be done by officers working under Lokpal | All work will be done by 11 members of Lokpal. Practically no delegation. | This is a sure way to kill Lokpal. The members will not be able to handle all cases. Within no time, they would be overwhelmed. |
| NGOs | Only government funded NGOs covered | All NGOs, big or small, are covered. | A method to arm twist NGOs |
| False, Frivolous and vexatious complaints | No imprisonment. Only fines on complainants. Lokpal would decide whether a complaint is frivolous or vexatious or false. | Two to five years of imprisonment and fine. The accused can file complaint against complainant in a court. Interestingly, prosecutor and all expenses of this case will be provided by the government to the accused. The complainant will also have to pay a compensation to the accused. | This will give a handle to every accused to browbeat complainants. Often corrupt people are rich. They will file cases against complainants and no one will dare file any complaint. Interestingly, minimum punishment for corruption is six months but for filing false complaint is two years. |
AGAINST ANNA HAZARE:
1. Is Lok Pal is necessary to fight corruption?
No, not only is it unnecessary, it will make the problem worse. Corruption in India arises because of too much government, too many rules, too much complexity and too much ambiguity. Adding one more, huge, powerful layer to an already complex system will make the system even more complicated. Complexity creates the incentives for corruption–both on the part of the bribe giver and the bribe taker.
See my article on why Jan Lok Pal is no solution and Amba Salelkar’s article in Pragati.
1A. Is the government’s version of the Lok Pal bill better?
No. We don’t need a Lok Pal at all. Making existing constitutional institutions—like CAG, CVC, CBI and the Election Commission—more independent will serve the purpose equally well. If we have been unable to prevent the politicisation and undermining of these instutitions why would we be able to prevent the Lok Pal from being politicised and undermined? If we can prevent Lok Pal from being politicised and undermined, why can’t we restore the independence and credibility of CAG, CVC, CBI and the Election Commission?
2. What’s the alternative to Lok Pal then?
The alternative is to proceed with second-generation reforms, or Reforms 2.0. Contrary to conventional wisdom reforms have reduced corruption, albeit by moving it to higher up the government. In 1989 an ordinary person would have to pay a bribe to get a telephone connection. By 2005, there was no need to pay a bribe at all and anyone could get a phone in minutes. Yes, 2010 saw the 2G scam in telecoms, but that was because the UPA government reversed the reform process.
In fact, data show that perceptions of corruption are lower in some sectors of the economy, usually those that have been liberalised.
If you are interested in exploring real alternatives, you can start by reading Atanu Dey’s slim, easily readable and inexpensive new book, “Transforming India”.
3. Doesn’t Hong Kong have an Ombudsman and doesn’t it enjoy low corruption?
This is a specious argument. There is little evidence to prove that Hong Kong has low corruption because it has an Ombudsman. On the contrary, there is empirical evidence from across the world suggesting that countries with high economic freedom are perceived to suffer from less corruption.
Hong Kong is one of the freest economies of the world, and therefore, incentives for government officials to be corrupt are relatively low. The Ombudsman is useful to address the residual corruption in economic sectors and in sectors like law enforcement that do not have discretionary powers over economic sectors.
4. How can we have economic reforms if the corrupt politicians don’t allow it?
We have not really demanded them at all, actually. If we did, they are bound to register in the national political agenda. We should persuade politicians that their political future is linked to implementing economic reforms.
5. Easy to say, but how can we do this?
By voting. The constituencies that stand to benefit from economic reforms—the middle class—needs to vote in larger numbers. In the absence of the middle class vote base, politicians appease the poor by giving handouts and entitlements, and cater to the super rich by allowing the crony sector to exploit the half-reformed economy. It’s not easy, and we have to be innovative. See for instance, Atanu Dey’s interesting idea to form middle-class vote banks to induce good governance.
Whatever may be the claims made by the people promoting Lok Pal, there is no miracle solution. They are peddling miracle weight-loss pills. Sadly, such pills usually don’t work and can cause severe damage to your health. If you are cautioned not to take those pills, you can’t ask “which other miracle weight-loss pill do you recommend”? The answer is in diet and exercise, which is hard work.
6. In the meantime, what’s wrong with Jan Lok Pal?This question has already been answered above, but it’s usual to encounter it again at this stage. The problem with Jan Lok Pal is that it’ll make the problem worse. Does anyone seriously think we can hire tens of thousands of absolutely honest officials who will constitute the Lok Pal? Who will keep watch on them? Maybe we need a Super Lok Pal, and then a Hyper Lok Pal to watch over the Super Lok Pal and so on…This isn’t sarcasm, this is the logical extension of the Lok Pal argument.
7. Don’t we have the right to protest peacefully? Why do you say that a fast-until-death lacks legitimacy?
Of course we have the right to protest peacefully. But it’s not about whether we have the right or not. It’s about are we using that right wisely. (You have the freedom of speech but that doesn’t mean it’s a good idea to blast Eminem using a loudspeaker at 2am in a residential district.)
As Ambedkar said while introducing the Constitution in November 1949, once the Constitution came into force, we should avoid all non-constitutional methods like protests and satyagraha, for they are the grammar of anarchy. If two persons go on fasts until death for two opposing reasons, we cannot decide the issue by allowing one person to die first.
Fast until death is political blackmail. It is a form of theatre engaged in to coerce the government into doing something that the agitators want. Whatever may be the cause, a single person cannot be allowed to dictate laws to the whole nation.
8. Doesn’t Anna Hazare have the right to fast until death?
Anna Hazare has the right to protest peacefully. However to the extent that his actions amount to an attempt to commit suicide, they are illegal. The government can legitimately prevent him from killing himself whatsoever the reason he might have to attempt suicide.
9. You are an armchair intellectual. Shouldn’t we trust activists more?
Pilots don’t design aircraft. Practicing doctors don’t discover new drugs and treatments. These jobs are usually done by armchair intellectuals. So being an armchair intellectual is not a disqualification.
You shouldn’t trust intellectuals or activists because of what they are. You should examine their arguments and make your own judgement. Most of the people supporting Lok Pal have not examined what the proposal is, have not tried to consider opposing arguments and blindly accept it as a solution because some famous people said so.
11. Aren’t those who oppose Anna Hazare’s agitation supporting the corrupt politicians?
No. It takes an enormous amount of arrogance to claim that Anna Hazare and his supporters have the exclusive hold on the right way to fight corruption.
In the real world, it is foolish to expect 100% clean and non-corrupt politicians. The real world challenge is to achieve good governance with imperfect constitutions, imperfect institutions, imperfect leaders and imperfect citizens. This requires us to realise that individuals respond to incentives. If we remove incentives for taking or giving bribes, then corruption will be lowered. We can reduce incentives for corruption by following through with the reforms that started in 1991 but have stalled since 2004.
It is entirely possible to oppose the UPA government’s politics and policies, while recognising that it is the legitimately constituted government of the country. Individuals and parties might suffer from a legitimacy deficit because of flagrant corruption, but the Government of India as an institution remains the legitimate authority to make policy decisions for the whole nation.
12. Why is fasting illegitimate when Mahatma Gandhi used it in our struggle for independence from the British?
There is a huge difference in context between 26th January 1950 when the Constitution of India came into force and the time before it.
Mahatma Gandhi used civil disobedience against laws imposed on India by the British government. Indians had no say in how the laws were made and how they were implemented. Indians could not repeal laws we didn’t want. Civil disobedience was justified in this context.
Gandhi also used it to coerce Indian nationalist leaders too, including Ambedkar and the Indian National Congress, into accepting his views. Whatever might be the wisdom of Gandhi’s intentions, this was undemocratic and created a culture of ‘high command’ that lives on to this day. Fasting was not justified in this context. This part of Gandhi receives little attention in the dominant narrative of Indian history.
With the formation of the Republic of India on 26 January 1950, things changed profoundly. All Indians have a say in how laws are made and how they are implemented. We can amend or repeal laws that we do not like. There is, of course, a method to do this, which must be followed. These are the constitutional methods that Ambedkar referred to in his grammar of anarchy speech. When constitutional methods are available, there is no case for non-constitutional methods like satyagraha or hunger strikes.
There is thus no equivalence between Gandhi’s satyagraha against the British ruling us and Mr Hazare’s hunger strikes against we ruling ourselves.
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