“Jan Lokpal not Joke Pal” – A Review of India’s Anti-Corruption Efforts

Fighting Corruption in India Slideshow

On November 8, 2016, in an effort to “tackle counterfeiting Indian banknotes, to effectively nullify black money hoarded in cash and curb funding of terrorism with fake notes”[1] the Central Bank of India announced that it would withdraw the legal tender status of ₹ 500 and ₹ 1,000 denominations of banknotes of the Mahatma Gandhi Series issued by the Reserve Bank.[2] The bank gave just weeks, until the ePicture1nd of December 2016, for the over billion people in India to bring in their notes and receive credit for them in their accounts.[3] This action, seemingly to fight corruption and the hoarding of so-called “black money,” had ripple consequences throughout the Indian economy.[4] Given the size, complexity, and largely informal nature of the Indian economy resulted in significant disturbances in the lives of ordinary people, and the effect of de-monitiziation on corruption remains yet to be seen in full.

The demonetization experience is but a representative tale of the complex and multi-faceted nature of Indian economics generally, but also the impact and extent to which corruption has negative effects on it. Indeed, as of 2017 India ranks 79th among 176 countries in the 2016 Corruption Perception Index released by the Transparency International.[5] However, both governmental and non-governmental groups have been attempts made to address the issue nationally and locally.[6] Out of a massive campaign led by Ghandi-esque figure Anna Hazare, the issue of corruption in India front and center in the public sphere.[7] The protests shed new light on an old problem in India, and ushered in legislative action that aimed to institute new anti-corruption efforts through both new and old anti-corruption agencies.

Anti-corruption institutions are universally accepted as necessary to fight corruption, as evidenced by the prominence of such institutions in the UN Convention Against Corruption (UNCAC),[8] but the mere existence of such mechanisms and organizations do not, on their own, necessitate victory on the corruption front. In order to judge these local institutions, one must first review internationally recognized best practices to determine the level of success that Indian anti-corruption agencies and NGOs can hope to achieve. While India has made certain steps, it appears that the anti-corruption efforts led by Hazare and other civil society leaders must continue. The positive inclusion of India’s large and well-informed civil society is the key to ensuring that India’s anti-corruption efforts comply with international norms, as well as understanding and incorporating the intricacies of the local situation and take into account the experience of local groups in their efforts to maximize their effectiveness.

The purposes of this paper are to use internationally recognized best practices to judge the effectiveness of India’s anti-corruption efforts generally, and to make recommendations about how it can ensure that the policies and activities of the state are most effective. Part II reviews these best practices, specifically those outlined in the UN Convention Against Corruption (to which India is a state party), and the Jakarta principles. From this review, three essential aspects of successful anti-corruption efforts become paramount in the case of India: transparency (ensuring organizational actions, reports, and policies are available to the broader public) and independence (that the organization be sufficiently independent of other governmental groups that may undermine its ability to conduct it work without entanglement) and adequate resource allocation. Part III then critically examines India’s national legislation and policies on fighting corruption and Part IV describes the unique scheme in India for fighting corruption. In that examination, it will become necessary to make recommendations as a way of finding the most efficient means to get India in line with best practices so that the efforts of Hazare and millions of Indians were not in vain.

Overview of International Best Practices for Anti-Corruption Agencies

The issue of anti-corruption, both public and private, has gained international attention over the past thirty years, culminating in the creation and implementation of the U.N. Convention Against Corruption which became effective in 2005.[9] Following the lead of the United States and its Foreign Corrupt Practices Act[10] enacted in the 1970s, the UNCAC sets forth the obligation that states have to combat corruption, namely to implement a scheme for national authorities to tackle the widespread and socially costly practice of corruption. Contained in the UNCAC are guiding principles and basic minimums that are necessary for any state to address corruption. Article 6 of the UNCAC mandates that signatory states create bodies, usually dubbed “anti-corruption agencies” (ACA) to address and fight corruption as a both preventative and remedial measures.[11] However, the existence of bodies to tackle corruption alone are not enough. Indeed, the real question is how can these bodies adequately fight corruption? To answer that question we must look to guiding principles for these agencies.

United Nations Convention Against Corruption and OECD Typology

Article 6(2) of the UNCAC makes clear what basic minimums must be in place for a national body to tackle corruption to function. In short, the ACA must have “the necessary independence… to enable the body or bodies to carry out its or their functions effectively and free from any undue influence.”[12] In addition to independence, the body must be adequately staffed and funded to ensure it has “the necessary material resources and specialized staff, as well as the training that such staff may require to carry out their functions…”[13] Though the United States must be given credit for the FCPA enactment in the 1970s, Singapore was the first to set up an anti-corruption commission in 1952.[14] However, it would be nearly 50 years later, in the late 1990s and early 2000s, before there would be proliferation of ACAs and agencies envisioned in the UNCAC.[15] To date, over 150 nations have set up an ACA, usually in response to a corruption scandal, civil society pressure, or as mandated by ratification of the UNCAC.[16]

ACAs are essential to fighting corruption. Unlike offices inside an already existing bureaucracy designated to tackle corruption, a new body, with corruption as its only goal, allows a state to fully address the underlying causes and to develop the appropriate mechanisms to fight corruption.[17] Usually, ACAs will perform three essential functions. First, ACAs must enact policies to address on-going corruption and establish mechanisms to ensure and enforce punishments or rectification procedures.[18] Second, ACAs must review and propose legislation and policies aimed at preventing further corruption going forward to national authorities and lawmakers.[19] Third, the ACA must conduct awareness campaigns and other educational actions to inform the public of its work and the role ordinary citizens must play in ensuring the success of whatever policy proposals the ACA gives.[20]

In 2008, the OECD developed a typology of the three existing models of ACAs.[21] First are multi-purpose agencies that represent the most common model of a single-agency approach. Some of the first ACAs, the Hong Kong Independent Commission against Corruption and the Singapore Corrupt Practices Investigation Bureau, follow this model, combining the aspects of repression and prevention under one roof.[22] Another model, common in Western Europe, is a law enforcement agency model which focuses on detection, investigation, and prosecution of corruption cases.[23] Thirdly, as found in France, India, Albania and Montenegro, are preventive, policy development and co-ordination institutions which focus more on corruption-related research, coordination of anti-corruption policies and action plans, monitoring conflict of interest regulations, elaboration of codes of conduct, facilitation of trainings, and the like attempting to be proactive about corruption rather than reactive.[24]

Despite the popularity of ACAs, and UNCAC mandate for the creation of them, problems persist. Firstly, there is no one-size-fits-all approach to tackling corruption. The norms, mores, and customs of each area often dictate the manner in which corruption occurs, is understood by those it touches, and its total effects contribute significantly to finding the right way to address it. Additionally, lack of political will to effectively fight corruption as well as eroding public support for the cause and the ACA, especially after a crisis or scandal, can further hinder the ability of ACA to function. Despite the proliferation of ACAs, it was not until 2012 that there was broad agreement on common global principles and standards known as the Jakarta statement.

The Jakarta Statement

The Jakarta Statement is the result of a high-level meeting of various groups, including the leaders of ACAs from around the globe, as well as UN and other international NGOs in Indonesia.[25] Organized by the Corruption Eradication Commission (KPK) Indonesia, the United Nations Development Programme (UNDP) and the United Nations Office on Drugs and Crime (UNODC) to discuss a set of principles for anti-corruption agencies to promote and strengthen the independence and effectiveness of ACAs.[26] The resulting document sets forth those features and delineates the best practices of an effective ACA.[27]

The first principle contained in the Jakarta statement is the necessary scope of an ACA’s mandate. The mandate should be clear and broad enough to allow the ACA to tackle corruption through “prevention, education, awareness raising, investigation, and prosecution.”[28] Recognizing this large scope, these goals can be undertaken by one agency or multiple coordinated agencies.[29] Commentators have suggested that the ACA be given prosecutorial powers, rather than having to rely on a potentially corrupted prosecutorial office.[30] While the ACA must be independent, it cannot also work in isolation. Therefore, the Jakarta Statement makes the clear that the ACA must have a good working relationship with a number of stakeholder groups in state agencies, civil society, the private sector and internally.[31]

Permanence is another key to success outlined in the Jakarta statement. Without some sort of legal permanence, either by constitutional reform or special legal procedure, is essential to ensure that the ACA is not merely a tool to be used at the whim of different ruling parties or coalitions. Without it, the ACA will suffer from both a lack of independence but also a lack of confidence generally.[32] Relatedly, the leaders of ACAs must be selected through a process that ensures his or her “apolitical stance, impartiality, neutrality, integrity and competence” and the power of any officials removed from their position within the ACA must be retained by the ACA until a replacement is found.[33] This ensures that the role of the ACA is not co-opted by political opportunists hoping to reduce its effectiveness. Indeed, any action taken against an official of the ACA must be conducted “only through a legally established procedure equivalent to the procedure for the removal of a key independent authority specially protected by law (such as the Chief Justice).”[34] Officials of the ACA should also be granted immunity from prosecution for acts committed within the performance of their mandate in order to shield them from malicious legal proceedings and persecution.[35]

Inside the ACA, strong codes of conduct and ethical guidelines are crucial to the ability of the ACA to retain higher standards than other agencies or commissions.[36] This is important so that the ACA remains a trusted institution by the public, otherwise its efforts will almost surely fail. The officials working at the ACA ought to be adequately paid in a way commensurate with their skill as to recruit those who are less susceptible to corrupting offers and influence.[37] Internally, as part of the codes of conduct and ethics, the ACAs should have the control to “recruit and dismiss their own staff according to internal clear and transparent procedures.”[38] This ensures that no nepotistic or paternal arrangements interfere with the independence of the body.

The financial viability of the ACA is also vital to the ability of the ACA to properly conduct its work. Therefore, as part of the permanent law establishing the ACA, the Jakarata statement mandates proper measures should be taken to ensure it is not hampered in its efforts by illegitimate budgetary shortfalls.[39] The adequacy of resources can be assessed by qualitative indicators, such as regular increases in resources, stability of human resources, reliability and integrity of staff members, efficiency of recruitment procedures, among others.[40] Commentators suggests that ACAs should have an annual budget guarantee, thereby avoiding any arbitrary downsizing of the agency’s budget.[41] While the ACA will certainly be subject to external legal constraints, internally the ACA should “develop and establish clear rules and standard operating procedures, including monitoring and disciplinary mechanisms.”[42] The European Partners against Corruption highlight the importance of preserving the confidentiality of investigations to protect the interests of all parties involved, specifically whistleblowers, suspects, witnesses, and other vulnerable parties.[43]

Setting up these procedures will ensure that there will be proper roads for internal reporting on issues, but also protect against misconduct and abuse of power within the agency. Internal mechanisms also curb the ability of these rogue actors to influence outside forces or groups, namely the public at large which may erode public support.[44] Indeed, In order to make and retain such a positive public perception, the ACA should “formally report at least annually on their activities to the public” and otherwise “communicate and engage with the public regularly in order to ensure public confidence in its independence, fairness and effectiveness.”[45]

Anti-Corruption Efforts in India Generally

Corruption in India is a rather constant phenomenon that the government has only recently addressed with the earnest necessary to combat the problem.[46] Corruption touches nearly everything in India.[47] Generally, three pieces of legislation law out the legal framework for fighting corruption in India.[48] From this framework arises the actual entities who are tasked with conducting the work. After reviewing this system, we can assess whether India’s efforts are constituted and function in line with the best practices as outlined in UNCAC and the Jakarta principles.

Indian Anti-Corruption Legislation

The Indian Parliament ratified the UNCAC in 2011[49] and while for some states the ratification of the convention would mandate a whole slew of new legislation, India had already made some progress. However, more still needed to be done. Indeed, the most important piece of legislation for fighting public sector corruption is the Prevention of Corruption Act of 1988 (PCA).[50] Though an earlier version of the PCA existed, it went through a significant revision in 1987 and was finally enacted in 1988. Appling a very broad definition and coverage of who is included in the definition of “public servants,” the PCA criminalizes the acceptance of money, services, or other gifts other than the acceptance of legal remuneration by public servants which is paid by their employers in connection with the performance of their duties.[51] Judicial decisions have even expanded the definition in the bill and have interpreted the term ‘public servant’ in the PCA to include a wide variety of persons, such as bank employees in both private and government owned banks.[52]

The PCA prohibits a “public servant taking gratification other than legal remuneration in respect of an official act” and makes it clear that such graft is not limited to “pecuniary gratifications or to gratifications estimable in money.”[53] In addition to direct graft, the aiding and abetting of bribery is also an offence under the PCA.[54] This includes attempted bribery as well, or anyone facilitating graft payments.[55] Since finding evidence of a particular bribe may be difficult, as those who take and have bribes tend to do so in secret, the PCA creates an adverse presumption if a public servant’s assets are disproportionate in value to his or her income.[56] If the amount of income supersedes one’s income and such supplemental income cannot be satisfactory accounted for, the official is potentially prosecutable for criminal misconduct under the PCA.[57]

Additionally, the PCA offers the government of India a number of tools to fight corruption. It allows special judicial proceedings to adjudicate corruption cases.[58]  It demands that investigations by police officers to be conducted by high officials.[59] In case of Delhi, the investigating officer must be of the rank of Inspector of Police.[60] In other areas, an officer must achieve the rank of Assistant Commissioner of Police.[61] In metropolitan areas, the officer must be a Deputy Superintendent of Police or an officer of equivalent rank elsewhere.[62] It sets a stiff penalty as well, of anywhere from 6 months to 7 years imprisonment.[63]

Prior to the enactment of the PCA, some anti-corruption legislation had already gone through the parliament. In the early 1960s, the government established the Central Vigilance Commission which aimed to be an internal governmental watchdog agency to prevent corruption from within.[64] In 2003, the Indian parliament enacted the CVC Act aimed at broadening the scope of the CVC.[65] Prior to the 2003 bill, the CVC had little to no actual power. Even after being updated, after years of languishing in legislative committees, the CVC is still not a proper investigative agency. Instead, corruption investigations engaged in at the behest of the CVC against government officials can proceed only after the government itself permits.[66] Though an ordinance in 1998 gave more power to the CVC, it still only conferred statutory status to the CVC.[67] The ordinance gave the CVC the powers to exercise superintendence over functioning of the Delhi Special Police Establishment, and also to review the progress of the investigations pertaining to alleged offences under the PCA.[68] This ordinance was finally codified in the 2003 law. The CVC does assist in transparency by publishing a list of corrupt government officials against which it has recommended punitive action, but aside from that, remains a watchdog agency.

Additionally, updates to the 2011 Whistleblower Protection Law enacted in 2014 give the Central Vigilance Commission (CVC) the task of receiving complaints, assessing public disclosure requests, and safeguarding complainants.[69] The law further strengthens protection for whistleblowers through stronger anti-retaliation provisions.[70] Namely, the CVC has the power to order that whistleblowers who suffered employment retaliation must be restored to their prior positions.[71] An example of such protection is a shifting of the burden of proof regarding retaliation onto the public official to show that any adverse action taken against a whistleblower was not retaliatory.[72] The law ensures confidentiality and penalizes any public official that reveals a complainant’s identity, without proper approval, with up to three years imprisonment and a fine of up to 50,000 rupees.[73] Additional penalties apply to organizations and individuals that fail to comply with CVC requests for information, or that knowingly provide incomplete, incorrect, or misleading information.[74] Though a useful tool to assist and encourage the public to root out corrupt officials and practices, several issues remain unfixed by the changes to the law.

A unique goal of the Hazare anti-corruption movement was specific legislative action. It was successful when in 2013, the Indian Parliament enacted the Lokpal and Lokayukta Act (LLA).[75] As mentioned, the Lokayukta is an anti-corruption ombudsmen originally established in Maharashtra decades prior to inquire into allegations of corruption against certain public functionaries.[76] The success and popularity of the Lokayukta helped the idea spread beyond Maharashtra, and several other states established their own systems.[77] While locally, the investigation of corruption is still with the Lokayukta, nationally the Lokpal has the jurisdiction to inquire into all complaints arising from the PCA against only certain public functionaries, namely high offices such as past Prime Ministers, Union Ministers and any person who is or has been a member of the national parliament.[78] Importantly, the LLA provides the Lokpal with more than just investigatory powers. Indeed, after the completion of investigation, the Lokpal can itself initiate prosecution against the accused and/or impose penalties via its prosecution wing or initiate prosecution in the special court proposed to be established to try offences under the PCA as outlined above.[79]

Though not addressing the issue of corruption itself, other important laws have been enacted to assist the fight against graft. The 2005 Right to Information Act, for instance, aims to increase the transparency of bureaucratic procedures, governmental accountability and transparency, and may thus be used to combat corruption.[80] The act provides citizens with a right to secure access to information which is under the control of public authorities.[81] “Information,” as defined by the RTI Act, means any material in any form, including records, documents, data material held in any electronic form, and also includes information relating to any private body which can be accessed by a ‘public authority’ (including a body owned, controlled, or substantially financed by the government) under any other law in force at the time.[82]

These combined legislative actions create India’s anti-corruption scheme. While seemingly robust, it has serious gaps. Using the overview of best practices already outlined, it is rather obvious that India’s current system is simply not up to international standards.

Evaluation of India’s Anti-Corruption Scheme

Enforcement of Indian anti-corruption laws falls to a tripartite group consisting of the Central Vigilance Commission, Central Bureau of Investigation, and the combined efforts of the Lokpal and Lokayukta. When reviewing each agency’s scope, powers, and role under the principles outlined in the Jakarta statement it becomes clear that, even given the unique aspects of corruption in India, until these anti-corruption agencies are in line with international principles, corruption will fail to be adequately addressed. And India’s scheme is simply not up to par.

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The Central Vigilance Commission (CVC)

The CVC is the internal government watchdog group that can internally investigate allegations of corruption and makes recommendations to the CBI for investigation.[83] The CVC appoints Chief Vigilance Officers (CVOs) to review various ministries and organizations.[84] Indeed, in the central government, each ministry/organization is envisioned to have a CVO who monitors and takes action on irregularities in the organization and reports them to the CVC.[85] Though there have been high profile cases by the CVC, significant limitations remain.[86] Namely, the CVC is only an advisory body and central government departments are free to either accept or reject CVC’s advice in corruption cases.[87] Also, CVC does not have adequate resources compared with number of complaints that it receives. There are over 1500 different agencies in India, yet the CVC has a staff strength of 299.[88] The appointment process is also not independent from government control. Though the leader of the parliamentary Opposition is a member of the Committee to select CVC leadership, the Committee only considers candidates put up before it, thereby making appointments to CVC indirectly under the control of Government of India.[89] The CVC therefore, is an institution that has none of the most important aspects as described in the Jakarta statement. It lacks adequate resources, independence, and its mandate is much too small to be effective and it has no ability to prosecute or even investigate cases on its own, it is merely a watchdog.

The Central Bureau of Investigation

Indian’s Central Bureau of Investigation is its national police force. Established in 1941, the CBI is a somewhat constrained police force as its powers and functions are limited to specific crimes enumerated by several pieces of legislation, namely the Delhi Special Police Establishment Act, 1946.[90] Interestingly, the CBI was created for the specific task of addressing corruption.[91] Since then, the role of the CBI has grown to be more like a national police force and then corruption work was relegated to a division inside the CBI in 1963.[92] After the passage of the PCA and the institution of the CVC, the CBI was given new powers to investigate claims against officials under the law and at the behest of the CVC.[93] In this role, the CBI remains Indian’s primary anti-corruption agency.

The continuation of endemic corruption in India falls largely at the feet of the CBI. Independence of the CBI, or lack of it, is its main issue as outlined by the Supreme Court in its landmark Vineet Narain case.[94] The case revolved around a CBI raid of suspected terrorist Kumar Jain, his brothers, relatives, and businesses where the CBI uncovered two diaries and two notebooks that contained detailed accounts of vast payments made to persons identified only by initials.[95] The initials corresponded to the initials of various high-ranking politicians, in power and out of power, and of high-ranking bureaucrats.[96] However, neither the CBI nor any other agency conducted an investigation regarding this discovery.[97] In the Public Interest Litigation (PIL) that followed, the Court gave extensive directions to the government to secure the independence of the CBI and the Enforcement Directorate (ED), and granting the CVC more of a role in oversight of the CBI.[98] Looked on as a positive step, even Narain admits, little progress has actually been made.[99]

It is not difficult to understand why progress is slow. Under the current setup, the independence or autonomy of the CBI will always remain something of a myth. The CBI remains constrained as it needs sanctions for prosecuting corruption cases against public servants and in some situations it even needs permission to even register cases.[100] Similarly, the government must grant approval if the CBI loses a case in the trial court and wants to appeal to the higher court.[101] This is leaves open room for space for the lack of political will in fighting corruption to remain. Another is that the CBI receives the lowest per capita expenditure and least favorable staff-population ratio when compared to those of its counterparts in Singapore, Hong Kong, South Korea and Thailand.[102]

Another issue is how the CBI is staffed. The central government ‘s administrative control over the CBI leaves no doubt as to the influence that politics plays, and the potential of compromises to its corruption investigations of government officials for whom they feel a certain debt.[103] During the last decade, at least four former Directors of the agency have been given high-level government positions such as appointments as State Governors.[104] Indeed, many, if not all, senior level CBI officers come from the Indian Police Service, and there is every reason to believe they feel an allegiance to their patrons.[105] So while the CPA demands that only a high ranking police officer can investigate corruption cases, these are the same people who may owe their position to those in authority, it leave open a high possibility for corrupting influences to shape the investigations.

Lokpal and Lokayukta

India’s national motto, “Unity through Diversity” is also apt for the other agency for fighting corruption: Lokayukta branches. Each state in India has a local Lokayukta, an ombudsmen specifically task with addressing, including prosecuting, corruption. The success of these organizations largely depends on the particular context of the state.[106] For instance, though the first the Maharashtra Lokayukta is generally seen as rather ineffectual, whereas the Karnataka Lokayukta is seen as quite powerful and effective.[107] Still, even when the Lokayukta have the respect of the local people for its efforts, it can still be marred by corruption and controversy itself, of which Karnataka is one of the clearest examples.[108] Therefore, the Hazare movement called for the creation of national anti-corruption ombudsmen, the Lokpal.

The Lokpal law came into force on January 16, 2014.[109] The law gives the Lokpal the power to investigate and even prosecute complaints against the Prime Minister, other ministers, current and former legislators, government employees, employees of firms funded or controlled by the Centre, societies and trusts that collect public money, receive funds from foreign sources, and have an income level above a certain threshold.[110] The Act spells out the relatively broad scope of the Lokpal, and gives states leverage to craft their own Local Lokayuktas, with the understanding that the nation would eventually be the single agency.[111] However, some serious limitations remain. Commentators note that, although the parliament, although acting swiftly in the face of the rising civil society campaign, the Indian government has been slow to institute the agency itself.[112] The Lokpal, once actually instituted, is envisioned to be relatively transparent, making sure to give timely reports and allow access of information on its cases.[113]

However, the independence of the Lokapl is suspect, as the selection committee for the leadership of the Lokpal, who then make nominations, are decided by members of the government.[114] As the Lokpal member selections begin, the politization of this appointment process, does not bode well for the independence of the institution. Additionally, its mere $1.2 million budget,[115] given the sheer scope of the potential caseload, it appears the Lokpal is far from being anything near a well funded and staffed operation.

India’s tripartite scheme for fighting corruption stands in a class on it own, nothing like it is found in the OECD typology. Indeed, it ought not to be followed as it is highly ineffectual, prone to serious compromise, consistently underfunded and subject to all manner of controls, restraints, bureaucratic hurdles and red tape system in which opportunities of corruption exist in almost every stage of the process. Therefore, understandably, the question becomes, what can be done?

Suggestions and Recommendations

The Jan Lokpal Act

Although the passage of the LLA in 2013 should be seen as a victory of India’s robust and active, though decentralized and splintered, civil society, it is not the bill, nor did it create the institution, that the leader of the 2011 anti-corruption protests had envisioned. Instead, what the citizens of India received was exactly what a corrupt government would deliver, a watered down piece of legislation just suited enough to meet the standards under the UNCAC. Upon realizing this was the course of events that the anti-corruption movement would take, Hazare began yet another campaign; this time to enact a real anti-corruption bill and have a true citizen ombudsmen to investigate and prosecute corrupt officials.

Hazare’s organization, India Against Corruption, has a draft of the Jan Lokpal Act on their website, thereby given journalists and academics a way to compare their version, one that conforms to international best practices and standards, and the government’s.[116] The table below provides some of the important differences between the two drafts and comes from the work of several Indian journalists and supporters of Hazare.[117]

 

Issue The Jan Lokpal Bill Government’s Lokpal Bill
Prime Minister PM can be investigated with permission of seven member Lokpal bench. PM can be investigated by Lokpal after she/he vacates office.
Judiciary Can be investigated with permission of a seven-member Lokpal bench. Judiciary is exempt and will be covered by a separate “judicial accountability bill”.
Conduct of MPs Can be investigated with permission of seven member Lokpal bench. Can be investigated, but their conduct within Parliament, such as voting, cannot be investigated.
Lower bureaucracy All public servants would be included. Only senior officers (Group A) will be covered.
Anti-Corruption wing of the Central Bureau of Investigation (CBI) The Anti-Corruption wing of the CBI merged into the Lokpal. The Anti-Corruption wing of the CBI cannot be merged into the Lokpal.
Removal of Lokpal members and Chair Any person can bring a complaint to the Supreme Court, who can recommend removal of any member to the President. Only an “aggrieved party” can raise a complaint to the President, who will refer the matter to the CJI.
Removal of Lokpal staff and officers Complaints against Lokpal staff will be handled by independent boards set-up in each state Lokpal will conduct inquiries into its own behaviour.
Issue The Jan Lokpal Bill Government’s Lokpal Bill
Lokayukta Lokayukta and other local/state anti-corruption agency would remain in place. All state anti-corruption agencies would be eventually close and responsibilities taken over by centralised Lokpal.
Whistleblower protection Whistleblowers are protected by Lokpal. No protection granted to whistleblowers by Lokpal.
Punishment for corruption Lokpal can either directly impose penalties, or refer the matter to the courts. Penalties can include removal from office, imprisonment, and recovery of assets from those who benefited from the corruption. Lokpal can only refer matters to the courts, not take any direct punitive actions. Penalties remain equivalent to those in current laws.
Investigatory powers Lokpal can obtain wiretaps (to make a connection to a telegraph or telephone wire to obtain information secretly), issue rogatory letters, and recruit investigating officers. Cannot issue contempt orders. Lokpal can issue contempt orders, and has the ability to punish those in contempt. No authority to obtain wiretaps, issue rogatory letters, or recruit investigating officers.
False, frivolous and vexatious complaints Lokpal can issue fines for frivolous complaints (including frivolous complaints against Lokpal itself), with a maximum penalty of Rs 100,000. Court system will handle matters of frivolous complaints. Courts can give 2–5 years imprisonment and fines of Rs 25,000 to 200,000.
NGOs NGOs not within the scope due to their role in exposing corruption. NGOs are within the scope and can be investigated.

 

From this table, the limitations of the current approach compared to the Jan Lokpal draft of Anna Hazare become rather apparent. While Hazare was able to pull back some of the initial government proposals and make the Lokpal Act closer to his vision, it remains without almost any of the necessary features of ACA as described in the Jakarta Declaration. If the Indian legislature would have passed Hazare’s Jan Lokpal bill as drafted, the story would be fundamentally different. The Jan Lokpal draft specifically ensures that the Lokpal will be independent, adequately funded, and that its mandate and reach are sufficiently long as to ensure no instances of impunity for corruption.

Therefore, the recommendations for Indian elected officials is rather straightforward. Given that the Jan Lokpal draft was presented and discussed by legislators in India, it appears the modified version represents something also necessary to successful anti-corruption efforts: government will. Luckily for India, Hazare has already galvanized and mobilized large and usually disparate civil society organizations into a broad and far-reaching movement that could be re-energized to fight for a new and comprehensive anti-corruption bill and force the government to amend the LLA. In cases of a lack of government will, as represented in India today, the responsibility to incentivize officials into enacting popular legislation is strong civil society pressure. Hazare has the means to build that, and he should.

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[1] Reserve Bank of India, Withdrawal of Legal Tender Status for ₹ 500 and ₹ 1000 Notes: RBI Notice, Press Release, Nov. 8, 2016, https://rbi.org.in/Scripts/BS_PressReleaseDisplay.aspx?prid=38520.

[2] Id.

[3] Id.

[4] Saheli Roy Choudhury, Thanks to demonetization, India could lose growth crown, CNBC, Feb. 27 2017, http://www.cnbc.com/2017/02/27/india-oct-dec-quarter-gdp-expected-to-be-below-7-percent-due-to-last-years-demonetisation.html; Shivam Vij Deputy, 33 Demonetisation Deaths In 7 Days: Hospital Casualties, Suicides, Heart Attacks And Even A Murder, HuffPost India, Nov. 16, 2016, http://www.huffingtonpost.in/2016/11/15/33-demonetisation-deaths-in-7-days-hospital-casualties-suicide/.

[5] Transparency International, 2016 Corruption Perception Index, http://www.transparency.org/news/feature/corruption_perceptions_index_2016.

[6] Press Release, Civil society demands an effective anti-corruption agency, Art of Living, Dec. 1, 2010, https://www.artofliving.org/in-en/civil-society-demands-effective-anti-corruption-agency.

[7] See Generally Mitu Sengupta, Anna Hazare’s Anti-Corruption Movement and the Limits of Mass Mobilization in India, 13 Social Movement Studies 3 (2014).

[8] UN General Assembly, United Nations Convention Against Corruption, 31 October 2003, A/58/422

[9] UNDOC, United Nations Convention against Corruption Signature and Ratification Status as of 12 December 2016, https://www.unodc.org/unodc/en/treaties/CAC/signatories.html

[10] Foreign Corrupt Practices Act of 1977 (FCPA), 15 U.S.C. §§ 78dd-1 et seq.

[11] Art. 6, UNCAC, supra, note 8, (“Preventive anti-corruption body or bodies 1. Each State Party shall, in accordance with the fundamental principles of its legal system, ensure the existence of a body or bodies, as appropriate, that prevent corruption by such means as: (a) Implementing the policies referred to in article 5 of this Convention and, where appropriate, overseeing and coordinating the implementation of those policies; (b) Increasing and disseminating knowledge about the prevention of corruption. 2. Each State Party shall grant the body or bodies referred to in paragraph 1 of this article the necessary independence, in accordance with the fundamental principles of its legal system, to enable the body or bodies to carry out its or their functions effectively and free from any undue influence. The necessary material resources and specialized staff, as well as the training that such staff may require to carry out their functions, should be provided.”)

[12] UNCAC, supra, note 8.

[13] Id.

[14] Koh Teck Hin, Corruption Control In Singapore, Workshop on Strengthening Cooperation Mechanisms in the Asia-Pacific in the Fight Against High-Level Corruption (2007), http://mddb.apec.org/Documents/2007/ACT/WKSP4/07_act_wksp4_016.pdfs

[15] Transparency International, Fighting Corruption: The Role Of The Anti-Corruption Commission, Apr. 28, 2014, http://www.transparency.org/news/feature/fighting_corruption_the_role_of_the_anti_corruption_commission [hereinafter Fighting Corruption); Luis De Sousa, Anti-Corruption Agencies, Between Empowerment and Irrelevance, EUI Working Paper RSCAS 2009/08, European University Institute (2009), http://ancorage-net.org/content/documents/anti-corruption%20agencies%20between%20empowerment%20and%20irrelevance.pdf

[16] Id.

[17] See Karen Hussmann, Hannes Hechler & Miguel Peñailillo, Institutional arrangements for corruption prevention: Considerations for the implementation of the United Nations Convention against Corruption Article 6, 4 U4 Issue (2009), https://www.cmi.no/publications/file/3343-institutional-arrangements-for-corruption.pdf

[18] Fighting Corruption, supra note 15; Sofia Wickberg, Best Practices For Anti-Corruption Commissions, Transparency International, Feb. 21, 2013, https://www.transparency.org/files/content/corruptionqas/Best_practices_for_anti-corruption_commissions_2.pdf.

[19] Id.; Samuel De Jaegere, Principles for Anti-Corruption Agencies: A Game Changer, 1 Jindal Journal Of Public Policy 79 (2012).

[20] Fighting Corruption, supra note 15.

[21] OECD, Specialized Anti-Corruption Institutions: Review Of Models, 2008, https://www.oecd.org/corruption/acn/39971975.pdf.

[22] Id. at 11 (“This model represents the most prominent example of a single-agency approach based on key pillars of repression and prevention of corruption: policy, analysis and technical assistance in prevention, public outreach and information, monitoring, investigation. Notably, in most cases, prosecution remains a separate function to preserve the checks and balances within the system (given that such agencies are already given broad powers and are relatively independent”).

[23] Id. at 32 (“The law enforcement model takes different forms of specialization, and can be implemented in detection and investigation bodies, in prosecution bodies. This model can also combine specialized anti-corruption detection, investigation and prosecution in one body. Sometimes the law enforcement model also includes elements of prevention, co-ordination and research functions. This is perhaps the most common model applied in Western Europe”).

[24] OECD, Specialized Anti-Corruption Institutions: Review Of Models, supra, note 19 (“This model includes institutions that have one or more corruption prevention functions. They can be responsible for research in the phenomena of corruption; assessing the risk of corruption; monitoring and co-ordination of the implementation of the national and local anti-corruption strategies and action plans; reviewing and preparing relevant legislation; monitoring the conflict of interest rules and declaration of assets requirement for public officials; elaboration and implementation of codes of ethics; assisting in the anti-corruption training for officials; issuing guidance and providing advise on issues related to government ethics; facilitating international co-operation and co-operation with the civil society, and other matters.”)

[25] Notable Attendees include Representatives from the United Nations Development Programme, the United Nations Office on Drugs and Crime, the United Nations Office of the High Commissioner for Human Rights and Transparency International, the Organization for Economic Cooperation and Development and the World Bank.

[26] Fighting Corruption , supra note 15

[27] Jakarta Statement on Principles for Anti-Corruption Agencies, Jakarta, 26-27 November 2012

, https://www.unodc.org/documents/corruption/WG-Prevention/Art_6_Preventive_anti-corruption_bodies/JAKARTA_STATEMENT_en.pdf.

[28] Id.

[29] Id.

[30] Rick Messick, Should Anticorruption Agencies Have the Power to Prosecute?, The Global Anticorruption Blog, Dec. 9, 2015, https://globalanticorruptionblog.com/2015/12/09/should-anticorruption-agencies-have-the-power-to-prosecute/

[31] Paragraph 1, Jakarta Statement, supra note 27.

[32] Id.

[33] Id.

[34] Id.

[35] Id.

[36] Id.

[37] Paragraph 1, Jakarta Statement, supra note 27 (“ACA employees shall be remunerated at a level that would allow for the employment of sufficient number of qualified staff”).

[38] Id.

[39] Id.

[40] Fighting Corruption , supra note 15.

[41] De Jaegere, supra note 19; Wickberg supra note 20.

[42] Paragraph 1, Jakarta Statement, supra note 27.

[43] European Partners against Corruption, Common Standards and Best Practice for Anti-Corruption Agencies, 2008, http://www.stt.lt/documents/tarptautinis_bendradarbiavimas/KNAB_elektroniskais_buklets.pdf

[44] Alan Doig and Robert Williams, Achieving Success and Avoiding Failure in Anti-Corruption Commissions: Developing the Role of Donors. 1 U4 Brief, 2007, http://www.u4.no/publications/achieving-success-and-avoiding-failure-in-anti-corruption-commissions-developing-the-role-of-donors/

[45] Paragraph 1, Jakarta Statement, supra note 27.

[46] For an extensive review of corruption in India with serious policy proposals, see Sandip Sukhtankar and Milan Vaishnav, Corruption in India: Bridging Research Evidence and Policy Options, 2014-2015 India Policy Forum 193, Sept. 01, 2015 https://www.dartmouth.edu/~sandip/Sukhtankar-Vaishnav-Corruption-IPF_Full.pdf.

[47] Id.; Poverties, Corruption in India: a cause of instability & inequalities, Feb. 20, 2013, https://www.poverties.org/blog/corruption-in-india (noting the widespread nature of corruption leads to three prevailing attitudes “1) You don’t turn to your government to protect yourself and you get used to getting things done by yourself. Whatever business you’re in you end up not paying taxes anymore. Whatever problem you’re having you’ll deal with it on your own, which can easily get out of hand if you have to settle on your own an argument over a car accident (which sometimes comes down to who’s got the biggest baseball bat). 2) You don’t trust the authorities anymore and any new policy or plan they have has meager chances of working because the whole system resists it, even the people. 3) If you’re actually trying to be a good law-abiding citizen, you pay your bribes and you end up even poorer than before. Bribes suck a significant share of the poor’s income.”)

[48] Nagarajan Vittal, Corruption and the State, Harvard International Review,  May 6, 2006, http://hir.harvard.edu/article/?a=925

[49] UNDOC, India: Government ratifies two UN Conventions related to transnational organized crime and corruption, https://www.unodc.org/southasia/en/frontpage/2011/may/indian-govt-ratifies-two-un-conventions.html.

[50] Prevention Of Corruption Act, 1988, No. 49 of 1988, https://www.oecd.org/site/adboecdanti-corruptioninitiative/46814376.pdf.

[51] § 1(2)(c), PCA of 1988.

[52] Central Bureau of Investigation, Bank Securities and Fraud Cell and Others v. Ramesh Gelli and Others (Criminal Appeal Nos. 1077-1081 of 2013 and W.P. (Crl.) No. 167 of 2015), http://supremecourtofindia.nic.in/FileServer/2016-02-23_1456211032.pdf (determining a more expansive definition of public official and suggested that the private banks ought to put more compliance mechanisms in place and need to get a clearer understanding of the application of PCA provisions and the consequences thereof.).

[53] § 7, 7(b) PCA of 1988 (“Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in Clause (c) of Section 2, or with any public servant, whether named or otherwise shall, be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine”).

[54] § 12, PCA of 1988 (“ Punishment for abetment of offences defined in Section 7 or 11. — Whoever abets any offence punishable under Section 7 or Section 11 whether or not that offence is committed in consequence of that abetment, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine”).

[55] Id.

[56] § 13 (1)(e) PCA of 1988, (“Criminal misconduct by a public servant. — (1) A public servant is said to commit the offence of criminal misconduct (e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.”)

[57] § 13 (1)(e) PCA of 1988.

[58] § 3-6 PCA of 1988.

[59] § 4 PCA of 1988.

[60] §17(a) PCA of 1988.

[61] Id.

[62] Id.

[63] § 3-6 PCA of 1988.

[64] Central Vigilance Commission, Introduction, http://cvc.nic.in/introduction.htm.

[65] The Central Vigilance Commission Act, No. 45 of 2003, http://cvc.nic.in/cvcact.pdf.

[66] Central Vigilance Commission, Frequently Asked Questions, http://cvc.nic.in/faqs.htm.

[67] CVC Ordinance 1998, http://cvc.gov.in/ins1.pdf.

[68] Id.

[69] The Whistle Blowers Protection Act, 2011, No. 17 of 2014, http://www.indiacode.nic.in/acts2014/17%20of%202014.pdf

[70] § 11 White Blowers Protection Act.

[71] Matthew Stephenson and Christine Liu, Guest Post: India’s Whistleblower Protection Act — An Important Step, But Not Enough, The Global Anticorruption Blog, June 2, 2014, https://globalanticorruptionblog.com/2014/06/02/guest-post-indias-whistleblower-protection-act-an-important-step-but-not-enough/

[72] § 11(2) The Whistle Blowers Protection Act, 2011, No. 17 of 2014 (“Provided further that in any such hearing, the burden of proof that the alleged action on the part of the public authority is not victimisation, shall lie on the public authority”).

[73] Stephenson and Liu, supra, note 71.

[74] Id.

[75] The Lokpal And Lokayuktas Act, 2013 (LLA) (No. 1 Of 2014), http://www.indiacode.nic.in/acts2014/1%20of%202014.pdf

[76] R. Keerthana, All about Lokayukta, The Hindu, Jan. 04, 2013, http://www.thehindu.com/todays-paper/tp-in-school/all-about-lokayukta/article4270895.ece.

[77] Id.

[78] § 14 LLA.

[79] §20(8) LLA

[80] The Right to Information Act, 2005 (No. 22 of 2005) http://rti.gov.in/webactrti.htm.

[81] §8(2) Right to Information Act, 2005.

[82] §2(f) Right to Information Act, 2005.

[83] The Central Vigilance Commission Act, No. 45 of 2003, http://cvc.nic.in/cvcact.pdf.

[84] Id.

[85] Id.

[86] Aloke Tikku, Anti-corruption body to fast track high-profile cases to increase deterrent value, Hindustan Times, Jul 12, 2016 http://www.hindustantimes.com/india-news/anti-corruption-body-to-fast-track-high-profile-cases-to-increase-deterrent-value/story-b0PcH6440sAxOSa5AGCWrK.html

[87] Vidya Subrahmaniam, Make Lokpal, Lokayukta apex, independent agencies, The Hindu, Sept. 02, 2010, http://www.thehindu.com/news/national/quotMake-Lokpal-Lokayukta-apex-independent-agenciesquot/article15899171.ece

[88] CVC, Introduction, supra note 64; Col. Deejay Chahal, Organizational Structure, Appointment and Role of CVC and CIC, Current Affairs: Olive Green Institute, June 2, 2015, http://www.ogleadership.com/olivegreens.co.in/blog/organisational-structure-appointment-and-role-of-cvc-and-cic

[89] CVC, Introduction, supra note 64.

[90] The Delhi Special Police Establishment Act, 1946 (25 of 1946), http://cbi.nic.in/aboutus/dspe.php

[91] CBI, About us, http://cbi.nic.in/aboutus/aboutus.php.

[92] Id.

[93] Id.

[94] Vineet Narain & Ors vs Union Of India & Anr (1996) 1 SCC 226, (India).

[95] Id.

[96] Id.

[97] Id.

[98] Vineet Narain & Ors vs Union Of India & Anr (1996) 1 SCC 226, (India).

[99] Vineet Narain, Nothing Has Changed Since 1997 Judgment, Times of India, May 10, 2013, http://timesofindia.indiatimes.com/india/Nothing-has-changed-since-1997-judgment-Vineet-Narain-says/articleshow/19978247.cms (“In more than 15 years since the verdict on my PIL, we haven’t travelled any distance. My PIL filed in 1993 demanded an honest probe in the hawala case which had dangerous consequences for the nation’s security and finances. Despite SC monitoring, the case was never properly probed. I saw how CBI and government’s top law officers played a dubious role to ensure the probe was botched up. From SC’s observations in the coal scam, it’s clear we are back to square one”).

[100] Issues of India, Why India’s Anti-Corruption Agencies are so Ineffective?, Sept. 15, 2011, https://socialissuesindia.wordpress.com/2011/09/15/why-india%E2%80%99s-anti-corruption-agencies-are-so-ineffective/

[101] Id.

[102] Jianhong Liu, ‎Bill Hebenton & ‎Susyan Jou, Handbook of Asian Criminology 32 (2012).

[103] R. Sudarshan, Bad Enactment, No Enforcement, The Hindu, Nov. 28, 2014, http://www.thehindu.com/opinion/lead/bad-enactment-no-enforcement/article6640407.ece.

[104] Id.

[105]  Issues of India, supra note 100

[106] Keerthana supra note 76.

[107] Anchan Srivastava, Will Maharashtra make its Lokayukta as powerful as Karnataka’s?, Daily News and Analysis, Nov 30, 2014, http://www.dnaindia.com/india/report-will-maharashtra-make-its-lokayukta-as-powerful-as-karnataka-s-2039833.

[108] Timelines, Karnataka Lokayukta mired in controversies, The Hindu, July 17, 2015, http://www.thehindu.com/specials/timelines/timeline-controversies-surrounding-karnataka-lokayukta/article7434718.ece (providing a timeline for the most recent set of scandals in the Karnataka Lokayukta).

[109] §20-26 LLA.

[110] Sudarshan, supra Note 103.

[111] §20-26 LLA.

[112] Sudarshan, supra Note 103; Bhadra Sinha, ‘What’s Stopping You?’ SC Criticises Govt For Delay In Appointing Lokpal, Hindustan Times, Nov. 23, 2016, http://www.hindustantimes.com/india-news/what-s-stopping-you-sc-criticises-govt-for-delay-in-appointing-lokpal/story-67P8nOJYe7qx5ZHpdnSbBL.html.

[113] §20(4) LLA. (“(1) The Chairperson and Members shall be appointed by the President after obtaining the recommendations of a Selection Committee consisting of— (a) the Prime Minister—Chairperson;(b) the Speaker of the House of the People—Member;(c) the Leader of Opposition in the House of the People—Member; (d) the Chief Justice of India or a Judge of the Supreme Court nominated by him—Member; (e) one eminent jurist, as recommended by the Chairperson and Membersreferred to in clauses (a) to (d) above, to be nominated by the President—Member.”).

[114] §5 LLA.

[115] PTI, Budget 2016: Token increase for Lokpal, Central Vigilance Commission, The Economic Times, Feb. 29, 2016, http://economictimes.indiatimes.com/news/economy/policy/budget-2016-token-increase-for-lokpal-central-vigilance-commission/articleshow/51193392.cms

[116] Anna Hazare, Draft Jan Lokpal Act, http://www.annahazare.org/pdf/jan%20lokpal%20bill%20by%20expert%20(eng).pdf; India Against Corruption, Lokpal Bill Differences, Slideshow, https://drive.google.com/file/d/0Bwgjs_Sh0LjJOGVkYTM3ZmQtODg4Mi00NjhkLTg0NGUtZmRlMGJiMDc2MWQ3/view.

[117] TNN, Lokpal Bill: Differences between Govt draft and Team Anna’s draft, Times of India, Jun 22, 2011, http://timesofindia.indiatimes.com/india/Lokpal-Bill-Differences-between-Govt-draft-and-Team-Annas-draft/articleshow/8944190.cms?referral=PM; NDTV Correspondent, What is the Jan Lokpal Bill, why it’s important, NDTV, August 16, 2011, http://www.ndtv.com/india-news/what-is-the-jan-lokpal-bill-why-its-important-452223; Anna Hazare, Draft Jan Lokpal Act, http://www.annahazare.org/pdf/jan%20lokpal%20bill%20by%20expert%20(eng).pdf; AIBSNLEA, Lokpal vs Jan Lokpal Bill, http://www.aibsnleachq.in/Lokpa_Jan_Lokpal.pdf.

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