Interview with Prashant Bhushan.
PUBLIC interest lawyer Prashant Bhushan was nominated by Anna Hazare as one of the five civil society members to the 10-member committee constituted by the Central government to draft the new Lokpal Bill by June 30. With his father, former Law Minister Shanti Bhushan, also in the same committee, critics called it an instance of nepotism. Hazare, however, justified Prashant Bhushan's inclusion in the committee by saying that it was done in view of his legal expertise and his role in the drafting of the Jan Lokpal Bill. In this interview with Frontline, Prashant Bhushan keeps a considerable distance from the public adulation that greeted Hazare and his team following his successful fast. He offers an impartial critique of Hazare and his convictions, quite unmindful of the media's compliment that both he and Hazare are the new agents of change.
How would you characterise Anna Hazare's fast and its aftermath?
The kind of response that this fast received from people across the country, particularly the urban middle classes, shows that there is enormous disquiet and anger among them about corruption, which they now see as a very serious problem. That is why this fast resonated with them, particularly when they saw that this fast was undertaken by a person with spotless and selfless image. They also saw that the main people involved in this struggle with Anna Hazare were people who had a clean, selfless kind of image. What it really demonstrates is that if public opinion gets aroused and mobilised, then it can exert significant pressure on the government. However, it certainly does not mean that it is the beginning of any revolution in this country. If that has to happen, it would have to involve an organisation which is very carefully and assiduously built up and which has a clear political understanding of all the major issues.
Secondly, this demand for a Jan Lokpal Bill will only tackle one part of the problem of corruption, certainly not other problems. One part that it is designed to tackle is to create an effective institution to check the supply of corruption and to create disincentives for corruption. Unless we simultaneously deal with a bigger problem the kind of policies which are creating a huge demand or incentives for corruption we will not be able to successfully tackle this problem. These policies of privatising natural resources, public resources and natural monopolies, without any transparency, public auction, etc., through secret MoUs, or the way in which [former Telecommunications Minister A.] Raja allegedly did in this 2G scam are allowing [the] loot of enormous resources by the corporates and sharing some of that loot with public servants, who have begun to act like the agents of corporates. These policies are creating and have created a corporate mafia, which has become so powerful that it is above all structures of authority. If we allow these policies, even the Lokpal will not be able to withstand the onslaught and the power of this corporate mafia. So, unless we simultaneously tackle this problem, we will not be able to successfully tackle corruption, even with a Jan Lokpal.
How do you think the corporate mafia can be tackled?
It has to be tackled by changing these policies that are allowing this loot of public resources and creation of private monopolies so that corporations with such enormous money are not able to overpower all public authorities and institutions.
Why do you think the Jan Lokpal Bill cannot tackle the corporate mafia?
When you have a system where there are a few corporations it is like the Reddy brothers in Karnataka they control. It is the mafia which controls today all the authorities, including the Karnataka Assembly, where they can buy up and take away the majority of the legislators. So, even the Chief Minister is unable to control them. Unless these policies are reversed, which are allowing such mafia to be created, that is policies which allow them to take away natural resources worth lakhs and lakhs of crores to set up private monopolies like airports, water distribution, electricity distribution, etc., we will not be able to control corruption.
Ultimately, of course, the Lokpal will be appointed by some authorities. And if those authorities come under their grip The whole environment has become such when you have just a few corporations which enjoy and together have more financial resources than that held by the bottom 80 per cent of the country's population put together, obviously, all democratic institutions will get subverted, because these corporations control the media, they can manufacture consent, they can bribe their way through, and all institutions start shaking. However credibly you try to create a Lokpal, it cannot withstand the onslaught.
Can you quantify the extent of corporate corruption in the country as opposed to non-corporate corruption?
I think the bulk is corporate corruption. Corruption is always a top-down phenomenon. What happens is when you have large-scale, high-level corruption, where lakhs of crores are given away to corporates for a pittance, whether it is land or mineral resources, or oil and gas, then that money gradually begins to trickle down say 10 per cent is given to the Minister, another 10 per cent to the top officials, and some per cent trickles down to the lower officials, etc., etc. That is where corruption really originates. Of course, that has the effect of corrupting the entire hierarchy, and thereafter other people start indulging in petty corruption also because they cannot be checked by people who have the power to check them.
Obviously, corrupt people who are taking advantage of the corrupt system are not going to and will not have the capacity to check the corruption below them. That is why, in my view, the bulk of the corruption is at the top and we have corporations today with more resources. The largest 20 corporations in this country would have more resources than the bottom 50 per cent of the people.
But if it does not tackle corporate corruption then what does the Jan Lokpal Bill target?
No, it will target every kind of corruption, including corporate corruption. What I am saying is that unless you also simultaneously change the policies
Which is not happening.Yes, that is not happening. That also needs to happen simultaneously.
Otherwise, will this Jan Lokpal not be effective?
Otherwise, the Jan Lokpal will not be very effective. I am not saying it will not be effective at all. This Jan Lokpal Bill theoretically can tackle every kind of corruption.
Including corporate corruption?Of course. Corporate corruption always operates through public officials. If you do not change the policies that are creating huge incentives and demand for corruption, and in the process are creating these monster corporations, then the Lokpal is also likely to wilt under the onslaught of such monster corporations, which have a huge vested interest in corrupting public officials in order to make huge amounts of money. So, therefore, you have to simultaneously tackle the demand side of corruption or the incentives of corruption. This Lokpal only tackles the other side the supply side. That is, it sets up an institution which can effectively choke the supply side of corruption by taking action against corrupt officials, but such an institution will not be able to withstand the onslaught of these monster corporations. The demand side of corruption will overwhelm the Lokpal also. The Lokpal itself will become either corrupt or intimidated by these corrupt corporations.
What you are saying appears inconsistent with what Anna Hazare has been saying that the Jan Lokpal Bill will tackle 90 per cent of corruption?
My understanding or perception is slightly more complex about this whole problem. It would be simplistic to think that the Lokpal institution by itself will be particularly effective in stopping corruption. This is certainly one reform that is urgently required. But both the reforms need to take place simultaneously in the form of government policies as well.
Is there any movement that seeks reform on the lines that you are suggesting?
Well, there are several movements which make such demands.
But not the one which Anna Hazare is leading...
So far Anna Hazare has not addressed this issue, and I hope that he will address this issue in time to come. He is addressing another exceedingly important issue to make democracy more participatory and to decentralise it.
But one would expect the need for the simultaneous reform of policy areas and the creation of the Lokpal institution to have formed part of discussions within the movement.
It came up during the last meeting we had with him, after he had ended his fast, and I am sure that in time to come, he will address this issue as well.
And will this be next on your agenda pushing for policy reforms?
No, next on the agenda will be pushing for decentralisation. And more participatory decision-making, which will also have the same kind of effect because if policies are made with people's consent, then pursuing these kind of policies [favouring corporations] will automatically stop.
Again, one would expect such a serious concern to have been brought to the deliberations right at the beginning of this activist movement.
I was not involved in these deliberations. Anna Hazare has been involved with this issue of corruption and Lokpal for a long time. Arvind Kejriwal and his group Parivartan have also been involved in this issue. However, these organisations have not really focussed on the demand side of corruption, perhaps because of a lack of complete understanding of the whole problem of corruption. They are small organisations which have not really grappled with larger political issues of our times other than the issues of transparency and corruption. Anna Hazare has grappled with local self-government issues or issues of water management and issues of corruption and transparency. But he has not so far grappled with some of the other political issues of our times.
Are you referring to issues of communalism and secularism?
Right. That is why he sometimes makes or issues statements without having a full understanding of the political implications, [statements] he would not have issued had he had a complete grasp of the other political issues, especially issues of communalism. He didn't really have the full understanding of what has really gone on in Gujarat. I, for one, certainly don't believe that Gujarat is a great model even for rural development.
This is a State where the entire Muslim population has been reduced to penury. Even the Scheduled Castes and Tribes and the depressed sections in the State are in a very bad state. And this has created growth for only the corporations and the upper middle classes.
I can only attribute Anna Hazare's statement praising Gujarat's record on rural development to an incomplete understanding of what really happened in the State. But I don't think he has any linkages with the BJP [Bharatiya Janata Party]. He is not fully tuned into the kind of politics which has gone on in a State like Gujarat.
Now that his statements are read seriously and scrutinised, do you think he should have a panel of advisers to guide him on what to say on important issues?
I think it is important and advisable for him to have with him a team of people who have more competence in political understanding and a vision of other major political issues facing the country.
What exactly was your role in the making of this Jan Lokpal Bill?
I was giving my inputs on various drafts of this Bill during the past six to eight months. The original draft of the Bill was prepared by Arvind Kejriwal and his Parivartan team. Then there were public consultations with former CECs [Chief Election Commissioners], CVCs [Central Vigilance Commissioners], some other retired officials, civil society organisations, etc.
Are you satisfied with the draft as it stands today?
This version, called 2.2, which appears on the India Against Corruption website, is a fairly good model, though we are not saying it is the perfect model. It can certainly be improved further. But it is certainly far better than the government's Bill.
One general criticism of the Jan Lokpal Bill is that it creates a monster institution, which will be worse than the disease it seeks to cure.
That arises from an improper and incomplete understanding. Firstly, some people have said that it has judicial powers. Certainly, the Lokpal has no judicial powers. It has powers of investigation and initiating prosecution. The judgment will be given by ordinary courts.
Similarly, people have said that it creates a superpower which will not be accountable to anybody. Firstly, orders will be reviewable in the higher judiciary. Secondly, the members of the Lokpal are accountable to the Supreme Court and can be removed by a five-member Bench of the Supreme Court on charges of misconduct. Thirdly, the Lokpal is mandated to function with full transparency. These three provisions will provide a sufficient check on any abuse of power by the Lokpal.
Apart from investigation and initiating prosecution, the Lokpal will have some incidental powers like ordering stoppage of contracts if it finds that they have been given on corrupt considerations or initiating proceedings for misconduct against officers and government servants, and overseeing the whole grievance redress machinery which will be created.
Another question has been how the Lokpal can deal with so much. It is possible to create a different institution to deal with public grievances. But what happens is, sometimes grievances arise out of corruption. Therefore, these are interrelated issues. It would be functionally better to have the same institution dealing with these grievances also particularly those arising out of corruption or violation of the citizens' charter.
The way grievances have been addressed in this Bill is, there will be a citizens' charter which every public authority will have to make, how much time they will take to do what, etc. If there is any violation, that will be a grievance which will go to a grievance authority, which will be within that public authority. Thereafter, there will be an appeal to a vigilance officer in the vigilance department and then a second appeal to the chief vigilance officer. These vigilance officers will be under the administrative and supervisory control of the Lokpal.
Whistleblower complaints, corruption, and grievances are interrelated issues. Therefore, it will be better if they are dealt with by the same body. Of course, the body will not be directly dealing with all these things. To think that all grievances will come to the Lokpal is not correct. Grievances will go through the normal grievance redress administrative structure which will be created, and the Lokpal will only have administrative and supervisory control over that structure.
Some observers have been critical of the Bill's requirement that the Lokpal's selection committee must include Nobel laureates of Indian origin and recipients of the Magsaysay Award.
Who would be the right persons to be on this selection committee? Persons who would not have or are not likely to have any direct conflict of interest with the functions of the Lokpal. Government officials who were in power or who have been in power normally have the most serious conflicts of interest because they are the persons whose acts of corruption or potential acts of corruption are likely to be investigated by the Lokpal. That is why we thought it is best to exclude government officials and political party functionaries. So we thought of who could be there.
One of the ideas at one point of time was that we should have Nobel laureates or past recipients of the Magsaysay Award because they are normally selected on a nonpartisan basis and they would not have any conflicts of interest. But later on, after further discussions with other sections of civil society, these were dropped.
The current draft has a selection committee which has the Speaker of the Lok Sabha, the Vice-President, the CEC, the CAG [Comptroller and Auditor General], two senior-most judges of the Supreme Court, two senior-most Chief Justices of the High Courts, as well as previous members of the Lokpal. So this makes the selection committee sufficiently broad-based and it is mandated to go about its task in a transparent manner with some degree of public participation as well. So, broad-basing the selection committee and making the selection process transparent are the best safeguards against wrong or arbitrary appointments.
Otherwise, of course, if every institution gets subverted, you can't really have any credible method of selecting the Lokpal. If somebody suggests something better, then it can certainly be included or changed.
The movement has also invited criticism for its prejudice against the political class, and against voters for choosing corrupt candidates. Would you agree?
The future thrust of the movement is towards greater participation of the people in decision-making, towards direct democracy. Therefore, it certainly does not have that prejudice. It has the contempt of this business of elected representatives the whole business of just electing a representative and then leaving him to take all the decisions is not really a democracy. It is a very imperfect kind of democracy which was adopted in the 15th century. Democracy means rule by the people, by the wishes of the people so that they take the decisions themselves.
