Wednesday, August 13, 2014

Let us think and Act with an open mind to
Develop a Vibrant Democracy – Article 9

Introduction: I have identified thirty obstacles which cause a distorted and ineffective democracy and possible solutions for these. Because very few people have time / inclination to read long articles, these are presented in separate brief articles for pointed attention and easier assimilation. I hope this will lead to spreading of awareness and facilitating point by point debate on each of these for saving our sinking democracy.
(Please keep these articles within easy reach for referring back till the series is completed.)

People want a corruption free government. It was envisaged that the institutions set up to ensure checks and balances will help to control corruption. But, all these have failed miserably. Besides corruption being rampant in every sphere of activity, mega scams have been exposed with alarming frequency. Punishment to persons involved in these is dragging on indefinitely and causing concern and increasing cynicism among people.

The Central Vigilance Commission (CVC) was set up, even as an advisory body, only in 1964 (i.e., 14 years after the Constitution came into force), through an ordinance. In 1998 (i.e., 34 years later) government introduced the CVC Bill in Lok Sabha to replace the ordinance. But it was not passed. The Bill was re-introduced in 1999 and remained with Parliament till September 2003 (i.e., for another four years. Then it became an Act after being duly passed in both the Houses of Parliament. This long delay of 53 years in conferring statutory status to CVC speaks volumes about the lack of interest of government and Parliament to control corruption. This is not surprising because the other checks and balances also were not taken up seriously by government.

What is worse, CVC can investigate corruption against government officials only after government permits it, though CVC is a statutory body!!. This is similar to asking a thief’s permission to catch him and giving him enough time to cover up even if he permits after some time. The reason given for this presumes that a statutory body will be frivolous. Delays and denial of permissions were quite common and indicates reluctance to allow proper checks. Thereby, this check has been deliberately watered down.

Annual reports of  CVC gave not only details of the work done by it but also brought out the system failures which lead to corruption in various Departments/Organizations  and suggested improvements in the system and various preventive measures needed. Cases in which CVC’s advices were ignored were also listed. A good government would have welcomed the suggestions for improvement!! But this was not done. Moreover, hardly any acion was taken on any of the important aspects. Government’s callousness and lack of commitment are obvious.

CVC has a very small set up with grossly inadequate sanctioned staff and other resources needed to investigate corruption in more than 1500 central government ministries and departments.  It cannot direct CBI to initiate enquiries against any officer of the level of Joint Secretary and above without permission from the concerned department. It does not have powers to register criminal cases and deals only with vigilance or disciplinary cases. Even for the limited investigations taken up, it can only make recommendations and cannot impose penalties. As a result, CVC  has neither resources nor powers to inquire and take action on complaints of corruption that may act as an effective deterrence against corruption. All these also indicate that government is not confident that there is nothing to hide and prefers to have a toothless CVC.
Sad to say, government does not even think about the need to rectify the situation let alone take any action.
The Central Bureau of Investigation (CBI) is the foremost investigating police agency in India.  Its working is overseen by  Department of Personnel and Training (DoPT) of Ministry of Personnel, Public Grievances and Pensions of Central Government, headed by a  minister who reports directly to Prime Minister. The minister is responsible for making sure that CBI is functioning properly. CBI’s jurisdiction covers corruption by Central Government servants and employees of public sector undertakings and nationalized banks. From 1965 onwards, CBI has also been entrusted with investigation of economic offences.

Government appoints a director from a panel of candidates based on the recommendations of a committee chaired by the head of a toothless CVC as explained above. Appointment and discipline of lower ranking CBI officers also are not handled by CBI but Ministry of Personnel. Control of government on appointments at all levels is an obvious travesty. 

To begin an investigation, CBI must obtain a series of approvals. For corruption investigations, which are monitored by CVC, the CBI needs approval of Ministry of Personnel also. It must also have permission from chief minister of the state where it wants to conduct an investigation. In order to investigate allegations of corruption against senior civil servants also, CBI must seek consent of Ministry of Personnel.

CBI is dependent on Home Ministry for staffing, since many of its investigators come from Indian Police Service. Likewise, it depends on law ministry for lawyers. Critics of CBI ask: “How can a body dependent on so many departments of government (as illustrated above) and answerable to them investigate the actions of government?

In 1991-92, in its 13th Report to Lok Sabha, the Estimates Committee recommended  “enactment of a new law laying down  organizational structure of CBI, functions to be discharged by it, types of offences which it can investigate and providing for conferment of powers of Police (laid down in Criminal Procedure Code 1973), on  members of CBI.” It also recommended a constitutional amendment to provide for extension of CBI activities to any state without consent of its government.

Supreme Court, in a 1996 judgment said powers of Minister for Personnel, Public Grievances and Pensions does not “permit the minister to interfere with the course of investigation.” SC’s further interventions in 1997 to ensure CBI a measure of independence in probing corruption cases has hardly yielded results, forcing another round of court hearings on the same subject in the coal block allocation case.

After the apex court’s 2006 judgment on police reforms in the Prakash Singh case were disregarded by most States, contempt cases were initiated but are yet to be settled. The regularity with which Supreme Court and High Court orders and judgments have been flouted by the State is fraught with grave implications for the country. Justice delayed or denied becomes a perfect recipe for social and political unrest. (DNA dated 02-11-13, page 8).  

Despite repeated court orders, CBI continues to be hampered and cannot completely justify its role in an independent manner. On the other hand, it has been criticized for mishandling of several scams and dragging its feet while investigating prominent politicians, leading to their acquittal or non-prosecution. CBI has not been able to make a dent on the rampant corruption all over the country.

Joginder Singh and B. R. Lall (former director and joint director, respectively of CBI) have exposed government for engaging in nepotism, wrongful prosecution and corruption. In Lall's book, Who Owns CBI, he details how investigations are manipulated and derailed. Corruption within the organization has also been revealed in information obtained under RTI Act. RTI activist Krishnanand Tripathi has alleged harassment from CBI to save itself from exposure via RTI. In stead of setting matters right, in 2011, government exempted CBI from the provisions of RTI Act  on the basis of national security!! This has been criticized by the Central Information Commission and RTI activists, who said the blanket exemption violated the letter and intent of  RTI Act.

Recently CBI has become the subject of ridicule over allegations that it allowed a minister and government officials to modify its report on   allocation of coal mining licenses. Supreme Court then criticized CBI for making changes in its report at the request of a minister and two bureaucrats and remarked that CBI is “like a caged parrot”. The court gave government until July 3, 2013 to lay out steps to make the investigating agency independent. The court’s order marks the latest in a long line of failed efforts to establish a robust anticorruption investigating agency.

Following this criticism by SC, to ensure "functional autonomy", CBI has asked for sufficient financial and administrative powers and a minimum three-year tenure for its director who should be vested with ex-officio powers of Secretary to Government of India, reporting directly to the minister, without having to go through the DoPT," Decisions on all these are still pending.   

Another atrocious event is the missing of files from Ministry of Coal Mines.

Whistleblowers (persons who expose misconduct, alleged dishonesty or illegal activity occurring in an organization) play an important part in control of corruption. Unfortunately, they had to face many reprisals and devastating situations. There have been multiple instances of threatening, harassment and even murder of whistleblowers. The harsh reality is that vested interests usually triumph because the laws are inadequate, the media are ineffective and citizens are silent. Peoples’ representatives do not care to set things right because of their well known preferences!! Consequently, culprits in influential positions manage to suppress embarrassing facts, discredit whistleblowers and subject them to demoralizing situations. Long delays in disposing off these cases also help them to get away without punishment. Under these circumstances, odds are heavily loaded against whistleblowers and only a few can succeed or lead a stress free life. Many are subject to debilitating anxiety or depression forever.

The judiciary has repeatedly directed government to formulate suitable guidelines/regulations to protect whistleblowers. In 2001,  Law Commission of India in its 179th report recommended a specific legislation to encourage disclosure of information regarding corruption or maladministration by public servants and to provide protection to informers. Only after ten years, the Whistleblowers' Protection Bill, 2011 was passed by the Lok Sabha. But, sad to say, the Bill is pending in Rajya Sabha!! This is one of the many instances of “indirectly elected representatives” blocking an important bill passed by “directly elected representatives” of people – a blow to democracy!!

The proposed law has no provision to encourage whistle blowing (e.g., financial incentives). Nor does it provide a penalty for those attacking a whistle blower. It has faced considerable criticism because its jurisdiction is restricted to those who are working for central government or its agencies and does not cover state government employees. Corporate and private sectors also are not within its jurisdiction.

Moreover, ministries proposing draft legislation usually involve a process of public consultation but such an opportunity has been denied to the public for this bill, Sad to say, even after a gap of more than 12 years  after the Law Commission  recommendation,  a full-fledged law to protect whistleblowers, drafted with public consultation, is still a long way off. In the absence of such a law, people have a low level of confidence in fighting corruption because they fear retaliation and intimidation against those who file complaints.

These aspects form the fifteenth and very serious obstacle which results in a distorted and ineffective democracy.

Comments (especially those which point out errors or deficiencies, if any, in this article and thereby help to improve it) and suggestions to overcome this very serious obstacle are welcome. Please send these to I shall make use of all befitting suggestions to prepare the last two articles of this series – Articled 23 will spell out the basic principles which will guide formulation of the revised system of democracy and Article 24 will outline the revised system of democracy for public debate to arrive at a consensus.

You can help to save our sinking democracy by making as many people as possible aware of these obstacles and possible solutions, through personal group discussions, newspaper articles, e-mail and social media like face book and twitter so that we can have healthy debates and arrive at some innovative ideas to save our sinking democracy.

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