Association of Retired Senior IPS Officers (ARSIPSO)
This is with reference to my letter No. ARSIPSO/GS-BSD-4/2023 dated. 10/08/2023 on the 4th B.S. Das Memorial Lecture, which had to be rescheduled for unavoidable reasons.
The 4th B.S.Das Memorial Lecture to be delivered by Shri Anil Kumar Sinha, IAS (Retd.), on the subject Disaster Management: Creating Safer Communities, has now been rescheduled for October 14, 2023 as per the following:
Conference Room No. 2, India International Centre, Max Mueller Marg, New Delhi, October 14, 2023 (Saturday)
Controlling Corruption in India and the Lokpal Bill
-Shivaji Mahan Cairae
First of all it should be clearly understood that corruption is the product of Opportunity and Discretion. Propensity also contributes to it. Some people have an innate tendency to become rich with least effort, and some grow up in a dishonest surrounding; and so enter the world with a dead or inert conscience. However, corruption thrives where there is no or little Deterrence.
Any amount of legislation and bringing in Agencies (like Lokpal, etc.) to check corruption is not going to bring about the desired effect, unless the Government have the Will and Integrity to do so.
Even today the Laws and Agencies to control corruption are not insufficient; but then the Laws like Benami Transactions Prohibition Act (enacted in 1988), etc., remain on paper; and Vigilance Agencies are crippled by all Governments by–
Frequent interference in their working;
Keeping them emaciated on staff and facilities/infrastructure fronts;
Using them more to hound the political opponents and inconvenient people;
Generally posting in them, spineless, pliant and amenable people. Hon’ble Supreme Court’s order to give two-year tenure to Director CBI is used to post even some other important functionaries, just a day before their normal retirement, so that they get a two year extension without fuss.
Finally, the civil society must play a participatory role in governance and remain ever vigilant to ensure that elected representatives and the civil servants fulfil their duties. In a democracy, to quote U.S. Supreme Court Justice Frankfurter, “the highest office is the office of the citizen”. History teaches us the lesson that if the elected government does not deliver, the citizens will come out on the streets and protest.
Coming back to the first point: Opportunities and Discretion; they can be mitigated by laying down foolproof procedures and rules. There is no dearth of them. Only they need to be followed honestly and in the best public interest.
However, unscrupulous and greedy politicians and spineless and pliant bureaucracy have tendency to circumvent the rules and procedures to suit them. Without a formidable Deterrent Action, all exercise becomes futile. Nothing is more deterrent for a wrong-doer than the fear of certainty of a quick punishment. This can be achieved by organizing Traps on the corrupt and catching them red handed. The scam of CWG, or the 2G would not have aggravated to its present shape, had the Vigilance Agencies, instead of calling for files and examining flaws and issuing advisories; had organized Traps and caught a few corrupt officials red handed taking bribes, after verifying the complaints received by them.
Publicity to Traps laid and repeatedly calling on public address systems like Radio, T.V., etc., for public cooperation in booking the corrupt, is the most urgent requirement of our time. With this action the need is to:
a) Establishing Special Vigilance Courts in all Districts of the country in accordance with the workload.
b) Amending the procedure to prosecute the Trap cases. There should be provision for submitting “Na Mukkammal Charge-sheet” with the forwarding of the accused; and his Summary Trial on day-to-day basis, in these cases.
c) With the trap, property of the accused should be sealed till the completion of Trial. On conviction, it should get attached to Government simultaneously.
Sd) Anti-Corruption Act should be applicable to all, i.e. to the Judiciary, Lawyers, Doctors, Journalists, Private Sector as well as to politicians and public.
e) Punishment in corruption cases should be fixed to life imprisonment, and there should be no discretion with the judge to decide on it.
If any functionary of the Government frames anybody falsely, he and all those responsible for such framing should also be summarily tried and punished with life imprisonment. This provision will check the misuse of powers and will deter the spineless to tow the line of their bosses.
Strengthen the Vigilance Agencies by providing them adequate staff and latest scientific and technical back-up; apart from posting in them conscientious and upright people of proven integrity for the remaining period of their service so that there is no witch-hunting, after their tenure is over.
All Vigilance jobs must be manned by serving people; and no pensioner should serve in them after the due date of his retirement.
In the Lokpal Bill the major glitch appears to be of including the Prime Minister, the Judiciary, and the conduct of M.Ps in the Parliament. If the Prime Minister is honest, he should have no objection to being under the lens of the Lokpal. Putting only the ex-P.Ms under his jurisdiction will only invite witch-hunting; which is not good for a Democracy. In the Lokpal Bill the rule of Law (which is the base of our Constitution) should be emphasized. It should be asserted that nobody (including the
P.M., Judges and M.Ps) is above Law in a Civilized Society. Lokpal should be appointed by the President on the recommendation of a Committee chaired by the Vice President (Chairman of Rajya Sabha), Speaker of the Lok Sabha, Leaders of Opposition in the Lok Sabha and Rajya Sabha, and the Chairman of the Public Accounts Committee (unanimously or by a majority). He should be answerable to the Parliament. President should remove him from his office if both the Houses of Parliament recommend his removal by a simple majority. This will keep a check on his office from becoming autocratic. To strengthen his arms, the CVC, the CBI and all the Vigilance Bureaus of the States should report to him directly. On his approval from a list of hopefuls, the chiefs of the Vigilance Bureau, CBI and the CVC should be appointed.
Regarding the Judiciary, it is very much the requirement of the time to have them under the lens of the Lokpal; but this will require amendment of the Constitution; as also the setting aside of the judgment of the Hon’ble Supreme Court in a case of Gujrat wherein a Judicial Magistrate was harassed by the Police, and Hon’ble Court gave a blanket order that no Police Officer can ever arrest or enquire into the conduct of a Judicial Officer. Since that time the lower judiciary is also beyond the reach of the Vigilance Agencies. Obviously the deterrence has gone away.
Regarding the M.P.s, they have to follow the whip of their Party. Horse trading and misuse of their funds should be brought under the lens of the Lokpal. Their right to freedom of speech in the Parliament should not be affected by it.
Electoral reforms and reforming the Legal system is also very much required. Unless people facing criminal charges/convicts continue to flood our Parliament and Legislatures, not much can be expected from all these measures. One may apprehend that for political gains an opponent may be framed up by the politicians in power. But this will not happen when there is deterrence of life imprisonment as mentioned in point 6(f) above, which should also be the General Law.
Our law is a big hindrance. It is so complicated and by almost daily interpretations by various higher courts it is becoming more and more complicated. On the other hand everyone is supposed to know it. Ignorance of Law cannot be given as an acceptable defence. Need of the hour is to shorten and simplify the Law, making it more understandable to a lay man. This is very much possible, but it will take away the sheen of the legal luminaries, and so they may not allow it to be done. Otherwise the entire punitive Law (major and minor Acts) could be summarized in a dozen sections. First section to deal with all definitions. Thereafter each section to mention crimes or faults punishable with fine, 1 month’s imprisonment, 6 month’s imprisonment, 1 year’s, 3 years’, 5 years’, 10 year’s , 20 years’ imprisonments respectively. Thereafter one section for crimes punishable with Life imprisonment and lastly for the death penalty. There should be no discretion with the judge in prescribing punishment, once someone is held guilty of an offence. All punishments should be laid down as specific and definite, with no scope for discretion. Eleventh section could deal with the procedure for investigation/enquiry and situations when bail could be granted. Right from High Courts to the Munsif courts, all should be Trial courts. There is no necessity for frequent interpretations of Laws and Procedures. If at all it is required then the matter should be referred to the Legislature or Parliament, who had passed that Law. It is ridiculous that the Parliament passes a Law and so many Courts start interpreting them as per their perception. In the good old days the King used to decide the tricky and heinous cases himself, so there should be no problem, if the higher judiciary takes up the trial work and tries heinous and tricky cases. There should be only one appeal in all cases which should lie in the next superior court. Procedure of appeal and Writs, and the General Exceptions should be mentioned in the twelfth section. Supreme Court should hear the appeals of High Courts, and should solely deal with Writs. It should not be necessary for anyone to be represented by a Lawyer in any Court. This will reduce litigation drastically and will result in quicker and fairer justice.
Generation of black money should be stopped by reducing taxes, duties, fees, etc; apart from providing the same procedures as in (Corruption) Trap cases for defaulters and money launderers/ Hawala dealers.
Abstract
Corruption is the product of Opportunity and Discretion. Propensity also contributes to it. However, it thrives where there is no or little Deterrence.
Government should have the Will and Integrity to control corruption.
Laws and Agencies to control corruption are sufficient ; but then they should be activated and not crippled by a) Frequent interference; b) Keeping them emaciated on staff and facilities/infrastructure fronts; c) Using them more to hound the opponents; d) Posting in them, spineless, pliant and amenable people.
Opportunities and Discretion can be mitigated by following the laid down rules honestly and in the best public interest.
Formidable Deterrent Action can be taken by organizing Traps on the corrupt and catching them red handed, after verifying the complaints received against them.
Publicity is given to Traps; and public cooperation invited on Radio, T.V., etc.
With this action, the need is to:
stablish Special Vigilance Courts in accordance with the work load.
Amending the procedure to prosecute the Trap cases by submitting “Na Mukkammal Charge sheet” with the forwarding of the accused; and his Summary Trial on day to day basis.
With the trap, property of the accused should be sealed and on conviction it should get attached to Government simultaneously.
Anti Corruption Act should be applicable to all, i.e. to the Judiciary, Lawyers, Doctors, and Journalists, Private Sector as well as politicians and public, citing the supremacy of the rule of Law, emphasized in our Constitution.
Punishment in the Corruption cases should be fixed to life imprisonment.
For falsely framing anybody, all those responsible should also be summarily tried and punished with life imprisonment. This will check the misuse of power and will deter the spineless to tow the line of their bosses.
Strengthen the Vigilance Agencies by providing adequate staff and latest scientific and technical back up; apart from posting in them conscientious and upright people of proven integrity for the remaining period of their service. No favours of jobs should be doled out to retired people.
In the Lokpal Bill the rule of Law (which is the base of our Constitution) should be emphasized to include the Prime Minister, the Judiciary, and the conduct of M.P.s in the Parliament. Hon’ble Supreme Court in a case of Gujrat gave a blanket order that no Police Officer can ever arrest or enquire into the conduct of a Judicial Officer. Thus Judiciary as a whole has no deterrence to remain honest. Such orders need to be quashed and Constitution amended to bring entire Judiciary under lens. The Lokpal should be appointed by the President and removed by him on recommendation of the Parliament. CVC, CBI, and State Vigilance Bureaux should function under him.
Electoral reforms and reforming the Legal system is also very much required. Unless people facing criminal charges/convicts continue to flood our Parliament and Legislatures, not much can be expected from all these measures.
Simplifying the Law by summarizing the entire punitive Law (major and minor Acts) in a dozen sections be done. First section to deal with all definitions. Thereafter each section to mention crimes or faults punishable with fine, 1 month’s imprisonment, 6 months’ imprisonment, 1 year’s, 3 years’, 5 years’ 10 years’ , 20 years’ imprisonments, respectively. Thereafter, one section for crimes of Life’s imprisonment and lastly for the death penalty. The punishment prescribed should be specific and definite, with no scope for discretion. Eleventh section could deal with the procedure for investigation/enquiry and situations when bail could be granted.
Right from High Courts to the Munsif courts, all should be Trial courts. Procedure of appeal in next higher court and Writs, and the General Exceptions should be mentioned in the twelfth section. Supreme Court should hear the appeals of High Courts, and should solely deal with Writs. If at all interpretation is required then the matter should be referred to the Legislature or Parliament, who had passed that Law. It is ridiculous that the Parliament passes a Law and so many Courts start interpreting them as per their perception. In the good old days the Kings used to try and decide the tricky and heinous cases. Representation by lawyers should also not be necessary. This will reduce litigation drastically and will result in quicker and fairer justice.
Generation of black money should be stopped by reducing taxes, duties, fees, etc; apart from providing the same procedures as in Corruption cases for defaulters.
The views and facts stated above are entirely the responsibility
of the author and do not reflect the views of this Association in any
manner.
