The following article was published on INI Broad Mind. I'm reposting it here.
Anna Hazare's latest demands deserve to be ignored
By Balaji Ganesan.
the Lokpal related protests by India Against Corruption group resume in
Mumbai, it is pertinent to analyze their latest demands. Anna Hazare
has written an open letter to the Prime Minister and the MPs with four specific demands.
Demand 1: Suo moto powers to investigate.
motivation behind this demand apparently is to facilitate secret
investigation (based on tip-offs) while corruption is in progress or to
catch the accused by surprise. However the Lokpal Bill is clear that the
Ombudsman proposed to be created is not an investigating agency. Any
investigation possible under this law is going to be carried out by CBI,
ACBs and Lokayukta Police as the case may be. All these investigative
agencies are already empowered to initiate suo moto and secret
investigations into potential acts of corruption.
Its not clear why the Central Vigilance Commission, which is
specifically created to make such secret inquiries, is being overlooked.
Vigilance is clearly the domain of the CVC and not that of an
ombudsman. Another civil society group, NCPRI has proposed several
measures to strengthen the CVC, which are worth considering. The
protesters can perhaps demand that the vigilance activities of CVC be
extended to Group A and B officials.
In many cases, having a complainant may help protect the institution
of Lokpal from accusations of partisanship. One of the salient points
of Lokpal is that it can initiate inquiry proceedings without the need
for approval. Having acquired such authority, it should exercise that
power with responsibility. Ordering secret investigations against
highest executive offices in the country based on tip-offs seems
unwarranted. At the lower levels, CVC is already keeping vigilance.
Demand 2: The Lokpal to carry out independent investigations, through any one of the following mechanisms.
not at all clear why the demand is not for making CBI a constitutional
body, answerable to parliament, with its own budget and recruitment
process independent of the Department of Personnel. Its somehow taken
for granted that an investigating agency has to be controlled and
influenced one way or the other.
a. Merging Anti-corruption branch of CBI with Lokpal.
current and former directors of CBI have argued that the resources of
the organization are not such that a division can take place without
rendering both the splinter units ineffective. In many cases, the acts
of corruption are accompanied by offenses under criminal law. For
example, the cases where upright officers were killed by
Kerosene/adulteration mafias. The resources of the state are likely to
be better utilized by having a single investigation.
Further, in the absence of a single independent investigating
agency, its entirely possible that government functionaries may order
parallel inquiries by other agencies to offset Lokpal led investigation.
b. Creating another investigation agency under Lokpal.
There is no justification to spend tax payer's money in creating a
new agency, when more autonomy can be given to CBI. Having CBI under
government control and a new investigative agency under Lokpal control
is certain to lead to turf wars and delay the investigations. As
observed in some of the Gujarat Riot Cases, where three different
agencies were probing the same cases, the supreme court was trying to
restrain individual officers from sabotaging other investigations.
c. Administrative and Financial control of CBI with Lokpal.
its not clear, why CBI should not be an independent body but instead be
subject to influence by Lokpal. Considering CBI investigates a
multitude of cases in different domains unrelated to corruption, the
demand to vest control of CBI with an anti-corruption ombudsman seems
Demand 3: Selection panel to have fewer elected officials.
is the most problematic of all the demands. Requiring a consensus on
the appointment is a non-starter. As observed in Lokayukta appointments
in Gujarat, Karnataka and the CVC appointment, a consensus is certain to
elude the selection panel, leaving the Lokpal with vacancies if not
Having two judges of the supreme court in the selection panel is
also not advisable, since appointments to offices of this kind are often
challenged in the courts. Further, the Lokpal is a prosecutor and the
supreme court judges are later eligible to be appointed to the Lokpal
panel. There are several opportunities for conflict of interest. While
there are demands to create a National Judicial Commission to give
elected representatives more say in Judicial appointments, this demand
seems to be a step backward. Its pertinent to remember that in the US,
judicial appointments are confirmed by the legislature and are even
subject to partisan voting on the nominee. Their system works just fine.
The demand to include CEC and CAG, who have nothing to do with
Lokpal, seems entirely arbitrary. Exposing such offices to lobbying in
other appointments, can only have disastrous consequences in their
Having a panel of parliamentarians appoint the Lokpal chairman and
members might be a better alternative. While such appointments may come
to be influenced by partisan considerations, the opposition members in
the selection panel will get the opportunity to expose questionable
candidates. As it happened recently in a CVC appointment, such
questionable appointments become untenable in the public opinion and can
be over-turned by the courts.
Demand 4: The Lokpal's jurisdiction should include Class C and D officers directly.
current Lokpal Bill already has provisions to refer cases against
groups C and D officers to the CVC. And if such officers collude with
higher officials, they'll be party to a CBI investigation anyway. Moving
even petty cases to a nine member Lokpal is likely to be ineffective
besides liquidating the authority of departmental vigilance officers and
CVC. Corruption at lower levels, which directly affects the common man,
requires to be handled by a highly decentralized mechanism rather than
the one demanded by the protesters.
As has been their wont, India Against Corruption group continues to
regard all democratically elected representatives as untrustworthy and
is trying to vest as much authority in unelected officials as possible.
While there may be wide-spread disillusionment with the political class
in India, it may not be in the long term interest of the Republic to
undermine the authority of our elected officials.
While demands for increasing the autonomy of CBI and strengthening
the CVC are worth considering, they are outside the purview of the
current Lokpal Bill. Hence the latest demands by Anna Hazare deserve to
Balaji Ganesan participated in the initial anti-corruption protests in Bangalore and blogs at balajiworld.blogspot.com