Back to the drafting board

Other countries have an ombudsman system to handle complaints against organisations, including governments. To indigenise the expression, the late LM Singhvi coined 'lokpal' (and 'lokayukta'). The idea dates back to the first Administrative Reforms Commission (ARC) in 1966. In 1969, a Lokpal Bill was passed by the Lok Sabha, though not the Rajya Sabha. In the flak flying around, there have been personalised attacks on civil society leaders and the wood is being missed for the trees.

There is no dispute about one wood: India has high levels of corruption. Although differences blur, there is low-ticket corruption and high-ticket corruption. Low-ticket corruption is confronted when a citizen or enterprise interfaces with government. To an extent this was due to artificial shortages created by licensing; this came down (telephone and gas connections, air and plane tickets) when shortages eased, not when they remained (education, health). To the extent this was due to abuse of discretion, this has declined when discretion eased (industrial licensing, taxation, foreign exchange), not when it remained (police, tendering, land, real estate). When the chief economic adviser advocates "legalising" corruption in a recent paper, he has small-ticket corruption in mind: shifting penalties from bribe-givers to bribe-takers, with whistleblower protection. The outrage, evident at Anna Hazare's fast, was more about big-ticket corruption.

Big-ticket corruption doesn't necessarily decline in a transient stage of reforms because discretion often increases, such as in privatisation of public assets — natural assets (land, water, mines, forests), air (spectrum). There have been several visible instances of corruption involving politicians, bureaucrats and the judiciary, three organs of the State mentioned in the Constitution. There is the legitimate perception that if left to itself, the government isn't going to do much about reducing this kind of corruption, electoral reforms included. The government didn't give us the Constitution. We, as citizens, gave it to ourselves.

There is no dispute about the second wood too: countervailing pressure by citizens and civil society (NGOs, media) has made the government more accountable. The Right to Information legislation, citizens' charters, public interest litigations, whistleblowers, zero rupee notes, 'Jaago Re', 'India against Corruption', 'I paid a bribe', sting operations by the media are cases in point.

Do we need the Lokpal legislation? And will it help? While answers to both questions are in the affirmative, it will be facile and naïve to believe that the Lokpal legislation will eliminate all corruption. We had a draft legislation prepared by government. Yes, there was a double problem with the Bill. First, though governments have become more open after 1991, and stakeholders are ostensibly consulted, pre-legislative consultation processes have too many warts and blemishes.

Second, there were specific problems with the government draft. Should the lokpal entertain complaints directly? Or would the complaints have to be routed through the Lok Sabha and/or Rajya Sabha? Should there be suo motu powers? Should the lokpal's recommendations be advisory or should there be powers of prosecution too? In the latter case, how does one ensure coordination with the Central Bureau of Investigation, the Central Vigilance Commission or the police? How does one handle frivolous complaints? Who should the lokpal cover? Ministers alone, or other politicians, bureaucrats and judges too? As a minor point, how many members will the lokpal have? As a major point, what will be their qualifications? Who will select these members? In such a major exercise, these issues need debate.

If the lokpal is expected to solve every corruption problem under the sun, there is a temptation to dump everything on it, ensuring it loses focus and achieves nothing, as it will be swamped with too many demands. For instance, to muddy waters, why not bring non-governmental organisations and the corporate sector also under the lokpal's purview?

This leads to two other questions. First, as a country, we were presumably unhappy with the way the government handles pre-legislative processes. So we wanted civil society to be part of the drafting committee. Consultation with civil society is one thing; drafting them into drafting committees is another.

What is civil society? How does one test for its representativeness? What has effectively happened is a bit like blackmail, with leaders effectively self-selecting themselves.

In the process of drafting, we will certainly move away from the government's bill. The many versions of civil society bills give us some indication of what we are moving towards. There were reasons for discomfort with the government's draft. But let us not presume everything is fine with the civil society drafts.

To take one example, why should non-government membership of selection committees be contingent on winning 'international awards'? What are these international awards (Nobel, Magsaysay) and why should one depend on external recognition before deciding if a non-government member is acceptable? Several other provisions overturn democratic processes and organs enshrined in the Constitution and supplant them with a new grievance redressal bureaucracy.

Admittedly, these versions are also drafts. However, there are simpler versions that have worked in places like Australia, Hong Kong and Singapore. Hong Kong's Independent Commission against Corruption is a good model to follow, though any legislation is only as good as its enforcement.

Had legislation solved all our problems, we would have had very few problems left. A new bureaucracy and a super-cop are no substitutes for improved governance. The agitation has led to euphoria and expectation. We have probably already been brought down to earth by a bit because of the public squabbling going on among civil society leaders and between them and assorted other players.

There is a deadline of June 30 for the draft to be ready and a promise that the Bill will be placed in the monsoon session of Parliament. As of now, both deadlines seem somewhat unlikely. We haven't even agreed on the procedures to be followed by the drafting committee or on who is in and who has opted out.

Bibek Debroy is professor, Centre for Policy Research. The views expressed by the author are personal.