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Law and graft

Published : Sep 23, 2011 00:00 IST

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Two books look at some key aspects of the anti-corruption movements in recent times.

THE ongoing crusade against corruption, led by Anna Hazare, has captured the imagination of people across the country with the demand that Parliament speedily enact the Jan Lokpal Bill, authored by Team Anna, becoming vociferous. However, serious divisions within civil society over the crusade and the Bill have led to questions about the legitimacy of the crusade itself. One such question is whether Team Anna's campaign has learnt the lessons from the successful movement for the Right to Information Act, 2005.

The movements for strong RTI and Lokpal Acts share similar goals namely, eradicating corruption and ensuring accountability and transparency in governance. It is true that the Lokpal Bill has a much longer history than the RTI Act. But the RTI movement has a longer history than the campaign for a strong Lokpal.

The huge public backing for the Jan Lokpal Bill is its strength as well as its liability. The enormous and unexpected support it has earned makes it difficult for the authors of the Bill to consider dispassionately the well-intentioned criticisms against it, and the suggested alternatives to some of its provisions that are widely considered draconian. Team Anna's refusal to let Parliament debate the Lokpal Bill in its normal course stems from this impatience, which had characterised its campaign from the beginning. It also reflects Team Anna's conviction that the government's Lokpal Bill which it prefers to call the Promotion of Corruption Bill is beyond repair, even by the Parliamentary Standing Committee.

In contrast, the RTI Act, 2005, is not a perfect document. There are indeed a few controversial provisions in it, but these did not lead to irreconcilable differences between the government and civil society. The openness of the RTI movement leaders immensely helped in the making of an effective law, which led to its popularity with the people.

According to Aruna Roy of the National Campaign for People's Right to Information (NCPRI), which campaigned for the RTI Act, the RTI Bill was amended 153 times when it was with the Parliamentary Standing Committee as the government draft was very weak. And no one had to threaten a fast-unto-death for the enactment of a strong RTI Act.

In The Right to Information Act 2005: A Handbook, the author, Sudhir Naib, a retired Central government official who is currently an academic, has traced the history of the RTI movement in India from 1987 to the passing of the RTI Act in 2005. Naib shows that the real movement for the right to information originated at the grassroots level in Devdungri in Rajasamund district of Rajasthan.

Devdungri, about 10 kilometres south of Bhim, a small town in the northern pocket of Rajasamund district, was the choice of four human rights activists Nikhil Dey, Anchi, Shanker Singh and Aruna Roy in 1987 when they decided to build an organisation for the rural poor. They did not accept for the work they did more than the minimum wages paid for unskilled labour, which was Rs.15 a day at that time. They did not accept international or government funding for their research projects. They lived with facilities that were available to an ordinary farmer simple accommodation, no electricity or running water. They won the confidence of the local population on account of their lifestyle, and found motivated co-workers. Devdungri soon became a meeting point for people who were concerned about social discrepancies and did not know how to confront the local elite and officials. When their influence in the region increased, they founded the Mazdoor Kisan Shakti Sangathan (MKSS) in 1990.

The activists initially worked on issues that directly influenced everyday life of the people in the Devdungri region, such as payment of lawfully guaranteed minimum wages in the State's development projects and drought relief programmes as well as equitable distribution of rationed items under the public distribution system (PDS).

Demand for free access to information became an important aspect in the context of minimum wages. Almost every time the activists demanded access to state documents, the authorities denied them, citing the Official Secrets Act, 1923. As Naib remarks, the OSA created a culture of secrecy, which resulted in confidentiality becoming the norm and disclosure the exception.

The aim of the RTI movement initially was access to documents and records relating to government-funded development works in the region. Public hearings, or jan sunwais, were identified as a suitable means to voice this right. The demand for transparency in spending of all development funds in the respective regions came from the jan sunwais.

The MKSS managed to get documents that pointed to irregularities in certain development projects. The muster rolls of a number of construction projects had names of people who did not work on the construction site. It was found that in Bhim, payments amounting to Rs.36 lakh had been made to a fraudulent company that existed only in the form of a bank account. The MKSS discovered such discrepancies in other regions too. The first public demonstration, organised by the MKSS, was held in the town of Beawar in Ajmer on April 5, 1996, to stress the demand for the right to free access to information. This dharna ended after 40 days, setting the pace for the subsequent events in the RTI movement.

The history of the RTI movement is different from the history of the RTI legislation. Although Rajasthan could be credited with initiating the RTI movement, it was Tamil Nadu that passed the first RTI legislation, in 1997, on the basis of the first draft legislation circulated by the Press Council of India in 1996. Other States soon followed. The author finds that most State laws are weaker than the Central law. He suggests that State governments repeal their laws and adopt the Central law, as a uniform law on access to information will help in making better use of the law.

The book says little by way of an account of the making of the RTI Act in various stages, from the drafting of the government's Bill, through its vetting by the Parliamentary standing committee and the debates in both Houses of Parliament, to its eventual notification. Given the current debate on the Lokpal Bill, such an account indeed deserves separate treatment.

But for this minor grievance, the book fills a lacuna in the existing literature on RTI. The reader gets not only a comparative perspective on freedom of information laws across the world but practical tips on how to make use of the RTI Act and the options available to an applicant when the authorities deny information.

The book makes exhaustive references to the Central Information Commission's (CIC) decisions concerning the definition of information, the obligations of public authorities and public information officers, the information exempted from disclosure, the role of appellate authorities, and so on. It is deplorable, however, that the government has opted to challenge some of the landmark decisions of the CIC in the higher judiciary and obtain interim stay orders on them. As the courts show no urgency in vacating these stay orders, the beneficiaries of the RTI Act remain deprived of the fruits of their efforts.

Dealing with corruption

C. Raj Kumar, Vice-Chancellor of O.P. Jindal Global University, in his book Corruption and Human Rights in India, also finds the beginnings of the RTI movement in Rajasthan fascinating. He recalls that the movement sought the right of access to official records as a part of the right to life and livelihood. He feels that the CIC has to develop broader expertise in dealing with corruption, apart from developing jurisprudence on the scope of the RTI Act, its powers and its jurisdiction.

The chief merit of Raj Kumar's book lies in his articulation of the need to empower the people of India to fight corruption on the basis of developing certain rights, which include the right to information and transparency in governance.

In the postscript to the book, the author discusses the current controversy over a Lokpal. One contentious issue in the Lokpal debate is whether we need a single institution or many bodies to tackle corruption. While the Jan Lokpal Bill strongly favours a single institution, its critics point to the threats to human rights from a mammoth institution and suggest multiple structures to cater to different functions. The author, on the basis of international experience, supports the view that a single institution in the form of the Lokpal is indeed the need of the hour.

The author refers to the experience of Hong Kong and mainland China and describes how the institutional approach to fighting corruption has been a big success in Hong Kong, while similar measures in mainland China have not met with much success. Citing a study conducted by Melanie Manion, he points out that the political establishment in mainland China responded to corruption with ambivalent signals, establishing two anti-corruption agencies with overlapping jurisdictions and an unclear division of labour.

In Hong Kong, by creating a powerful, independent anti-corruption agency (Independent Commission Against Corruption), the government clearly signalled its commitment to anti-corruption enforcement. This agency achieved major enforcement successes quickly and publicised them widely to consolidate its reputation. It combined enforcement with broad public education by reaching out to the community in innovative ways apart from proposing measures to reduce incentives for corruption.

The author agrees that given our past experience of police and law enforcement agencies engaging in serious acts of abuse of power, care should be taken in the institutional design to ensure checks and balances. However, he adds, experience worldwide indicates that cross-agency coordination remains weak or non-existent where there are multiple institutions with different roles and responsibilities to tackle corruption. Citing another study, he suggests that law enforcement agencies are often not well connected and integrated owing to their wide diversity, overlapping mandates, competing agendas, various levels of independence from political interference and a general institutional lack of clarity.

The author has also offered his views on some of the other contentious issues though one gets the impression that he has not been successful in resolving the inconsistency in his ideas. Thus, on the question of inclusion of the Prime Minister under the Lokpal, he agrees that any investigation of allegations of corruption against the Prime Minister would undermine the effectiveness of a pivotal institution of the government, both domestically as well as on the international plane. However, he adds, nobody is above the law; and if India truly wishes to establish a society based on the rule of law, nobody including the Prime Minister should be excluded from the purview of any anti-corruption investigation. He, therefore, supports safeguards to limit the possibility of the misuse of this provision, in the form of a higher level of scrutiny and review mechanism to filter complaints against the Prime Minister.

The author argues that the inclusion of the judiciary within the Lokpal Bill will weaken the proposed institutional framework in its effort to seek transparency and accountability in governance. This is because the judiciary has the power to adjudicate on the constitutional validity of all legislation and the powers exercised by the government. Further, it will also be involved in adjudicating on the constitutional validity of the powers exercised and the decisions taken by the Lokpal. It will also result in the judiciary ending up being a judge in its own cause with respect to adjudicating on the Lokpal's exercise of its powers regarding corruption in the judiciary, the author says.

He, therefore, believes that there is a case for strengthening the anti-corruption provisions of the Judicial Standards and Accountability Bill. Accountability of the Lokpal as an institution is another of the author's concerns. He suggests that a full and complete disclosure of all information relating to the members of the Lokpal as well as procedures for removal for misconduct will ensure this accountability. The book's perfunctory treatment of the subject, perhaps to cash in on the contemporary interest in fighting corruption, is likely to disappoint the reader.

(This story was published in the print edition of Frontline magazine dated Sep 23, 2011.)

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