Lokpal Bill:Exaggerated Expectations Might Boomerang
By Madhu Purnima Kishwar
The country owes a debt of gratitude to Team Anna for succeeding in channeling popular anger against corruption into a determined movement to seek institutional measures to cleanse our politics of the cancer of corruption. Anna Hazare has succeeded in igniting the fading spirit of patriotism and idealism in the country’s youth which was increasingly turning cynical and distancing itself from politics. Not too long ago there was an all pervasive feeling that India’s politics and governance was beyond redemption. Today, there is a strong belief in citizens’ power and ability to call the mightiest in the land to account. The “Yes we Can” mood has the potential to bring about far reaching and urgently required changes in the country.
Today, we have four Lokpal formulations-those of Team Anna, the Government, Loksatta and that of NCPRI. This is too important a piece of legislation to be passed in haste under threat of fast unto death. India is collapsing under the weight of too many poorly conceived but draconian laws that not only fail to deliver what they promise but in fact end up becoming convenient tools for harassment, tyranny and extortion. While the sarkari Lokpal has been aptly termed as a Jokepal, the Bill proposed by Team Anna is far from perfect. It is too over arching, envisages too much concentration of power in one institution in addition to taking on an excessive load since the body would be required to monitor everybody from the prime minister to the sarkari peon. Even the NCPRI formulations are a work in progress.
Thus far the maximalist stance taken by Team Anna that the parliament should pass their version of the Bill within the next couple of days without entertaining amendments or other formulations of the Lakpal Bill has been a cause of concern for many of us who support the anti corruption movement because it betrays an extremely authoritarian mindset. The Fidel Castro style of “direct democracy” Team Anna is practicing at Ramlila Maidan to claim legitimacy for their version of Lokpal has serious dangers of turning into the rule of a coterie that has the power to sway the masses for a period. This method would work eminently for the gram sabha level of decision making but not for legislation affecting 1.5 billion people.
Our already flawed democracy will be weakened further if we totally bypass democratic institutions and count on street power to decide on state policy and legislation. It seems Anna Hazare is also beginning to distance himself from leading members of his team as was evident from the statement made by Nikhil Wagle, his old associate from Maharashtra. Wagle told CNN/IBN that Anna and his Maharashtrian colleagues are very unhappy at the extremist stand taken by certain members of his team and therefore wants to negotiate directly with the Prime Minister’s emissaries.Justice Hegde and Swami agnivesh have also distanced themselves from the extremist stance of Arvind Kejriwal and Kiran Bedi.
Need for Pre Legislative Public Consultations
Many of the well functioning democracies have institutionalized well crafted processes for pre legislative consultations before any new law or amendment is introduced in parliament. Starting with the Lokpal Bill we need to institute similar mechanism for public involvement in drafting important legislation so that the suggestions of diverse sections of society can be heard and taken into account when drafting the final Bill. It will also prevent similar pressure tactics by those who can mobilize street power through generating cyber frenzy and high voltage media campaigns into blackmailing the government into passing important legislation without taking on board diverse opinions.
Most important of all, Team Anna would do well to recognize that the exaggerated expectations aroused by it are bound to boomerang if we overlook the fact that there is no one institution, no one law which can put an end to the deeply entrenched culture of extortion, bribery and petty tyranny that is destroying the health of our polity and society like an AIDS virus. A draconian anti dowry law has not eradicated dowry. A stringent law against feticide has failed to arrest the declining sex ratio in the country. The list of failed laws that achieve the contrary of what they promise is long and tragic.
Combating corruption requires looking at and reforming each department of the government, each sarkari institution that is engaged in public dealings or assigned the responsibility of providing public services or constructing civic infra-structure, to identify rules, regulations and laws that bestow arbitrary power to government functionaries or politicians which enable them to deny citizens their rightful due without facing any consequences.
The Devil Lies in the Detail
Let me illustrate: For example, municipal officials all over India systematically fleece citizens by sending highly inflated house tax bills. I recall that several years ago, one of my neighbours– let us call him Mr. X– got a house tax bill of Rs 1.65 lakhs for a small 2 bedroom flat in South Delhi. In sheer panic, he approached a local political worker who claimed “good connections” with the municipal officials. This man then went and brokered a deal with the concerned babus. Mr. X was asked to pay Rs 25,000 in order to get the 1.65 lakh demand reduced to Rs 7,000 per year tax liability. He accepted the deal gladly because it appeared to him as if he was receiving a big favour, even though the falsely inflated bill was actually just a device to frighten him into paying a bribe. This was in fact a standard practice; virtually every house owner was subjected to this form of blackmail because the rules governing house tax rates were totally opaque with officials routinely getting away with demanding arbitrary amounts as payoffs because they have the power to send out bogus bills and seal the property with the victim left fighting never ending court battles.
This citadel of corruption collapsed in one stroke when, following the example of Ahmedabad, Patna and Bangalore, Municipal Corporation of Delhi also reformed its mode of property tax calculation and collection in 2004 by introducing a self assessment scheme with clearly defined parameters for calculating rates for different categories of property depending on the covered area of the property – both commercial and residential. A detailed description of how to calculate the tax due on each property in different areas of Delhi – with a higher tax rate for high priced properties and lower rates for poorer colonies-has been put on the publicly viewable website. Today one can pay this objectively calculated property tax in Delhi through the payment portal of MCD on the internet or through any number of banks.. It leaves little scope for extortion. In fact, Mr. X today pays no more than Rs 3800 by way of tax for the same property for which he was sent the Rs 1.65 lakh bill.
Dumping Arbitrary Laws
Another example: Manushi has succeeded in bringing about a dramatic fall in bribes and harassment for cycle rickshaw owners because in response to Manushi’s petition challenging bribe-friendly arbitrary rules and regulations for plying rickshaws the Delhi High Court struck them down as unconstitutional in April 2010. Here is a small sample of those absurd regulations:
1) Plying a rickshaw without an owner’s and a puller’s license is illegal but unlike for motor vehicles one cannot get a license on demand. People are kept waiting for years after applying for a puller’s or owner’s license while municipal officials are not required to give any explanation for denying rickshaw licenses. However, officials have the power to confiscate and destroy a rickshaw operating without these two licenses.
2) While a person is entitled to own as many cars, trucks or airplanes as they want and can afford, it was illegal to own more than one rickshaw. A person owning multiple vehicles was liable to having his/her vehicles confiscated and destroyed.
3) A person owning a taxi or bus may hire whoever she likes to ply that vehicle or give it out on rent. But renting out a rickshaw invites confiscation and destruction of the vehicle. This despite the fact that vast majority of pullers are seasonal migrants who prefer to rent their vehicles so that they are free to visit their villages as and when necessary without having to worry about its being stolen or destroyed while they are away.
Thanks to such vicious laws, rickshaw owners and pullers ended up in a web of illegality, paying over 350 crores a year by way of bribes in Delhi alone to the Police and municipal officials.
As soon as these absurd regulations were declared unconstitutional and confiscation was forbidden by law, no owner was willing to pay hafta – even though the new law drafted to liberalize the process for owning and pulling a rickshaw has yet to be enacted. By contrast, we have failed to make a dent in the power of extortionist mafias that fleece street vendors despite a 15 year long campaign to dismantle the arbitrary and restrictive licensing regime for street vendors. In Delhi alone street vendors pay over 500 crores a year by way of bribes and yet face repeated assaults on their livelihood by police, municipal officials and political mafias. While the government has “adopted” a new National Policy for Street Vendors, it has not instituted a transparent and rational system for delivering hawking licenses as envisaged in the new policy Had the Supreme Court given equally strict orders against confiscation and destruction of vending stalls while simultaneously creating proper hawking zones, street vendors too could have been liberated from the extortionist demands of police and municipal officials.
Unlike the High Courts and the Supreme Court, the institution of Lokpal, even at in its most undiluted form, is not designed to have the power to strike down patently unjust laws. Therefore, it will have to go by the existing laws and regulations which leave citizens totally at the mercy of officialdom. The existing administrative system understands only two signals: a kick from above and a bribe from below because of vast discretionary powers available to those manning the government machinery. These need to be replaced with publicly available objective regulations that bind the concerned officials to doing their job within a set time frame or else face disciplinary action.
There is talk of Citizens’ Charters by each department as a follow up of the Lokpal legislation. But if the Charters are framed within the existing devious framework of regulations that make perfectly legitimate activities illegal as in the case of street vending and rickshaw pulling, or place unrealistic restrictions, as for instance do our building laws, we cannot hope to succeed in arresting corruption and rent seeking.
Super Cops May Replicate Existing Corrupt Structures
Lokpal can at best play the role that antibiotics do when our bodies catch an infection. But antibiotics work only if delivered in emergencies in judicious doses, or else the body becomes immune to them. An overdose can act as a toxin and even kill the patient. It cannot produce genetically incorruptible officers but it can easily become a Frankenstein monster if it is given the role of super cop and saddled with an unrealistic load and mandate. Even the best of Lokpals cannot curb routine corruption and tyranny if the ground rules don’t change. It will work only if each government department shifts the balance of power in favour of citizens, providing them the clout to demand transparency and accountability. Most important of all we need to break the unholy nexus between police, politicians and criminals by carrying out far reaching police and judicial reforms in order to give confidence to citizens that they are not risking their very lives by taking complaints of extortion rackets to the Lokpal. Shifting power from existing cops to a new institution of super cops will not do. We need to change the nature of power in India.