29th July 2012
Remembering B R Lall and his crusade against corruption
I came to know only today that Mr B R Lall passed away in November 2011.
B R Lall made many useful contributions to India.
The first time he came to public notice was with the Jain Havala case. Here's a description from the jacket of his book:
The author as a Joint Director in the CBI piloted the investigations of many important cases including the famous 'Jain Hawala Case'. It was a God-sent opportunity for the CBI to clean the dirty stables of Indian politics and administration as the case had necessary potential as also the mandate of the Supreme Court to investigate the high and mighty. The CBI Director Vijay Rama Rao wanted to close the investigations by filing bogus chargesheets against some bureaucrats and subsequently included the names of certain politicians in the list, but the author refused to oblige. Later the director asked for chargesheeting certain high profile politicians from both the ruling and the opposition parties including L.K Advani; but the author resisted any blanket chargesheet without requisite evidence and instead advocated complete investigation, including searches for looking into the assets of all including the heavy weights like Union Ministers (serving and the former), leaders from other than the ruling parties, serving Prime Minister Narasimha Rao and also the former PM Rajiv Gandhi as their names had occurred in the diaries and the statements of Jains. The case was taken away from his charge and the chargesheets, devoid of any substance, were filed knowing fully well that these would fall at the very outset. The author warned the director in black and white that he was "scuttling the scam and betraying the nation".
The relentless fight of the author for truth and transparency in the CBI brought him in sharp confrontation with Director Joginder Singh, who defined the law for every individual differently and applied the tools of discipline to force the desired results out of the investigators. The author raised these tricky questions in the CBI conference with the then Prime Minister, Deve Gowda. Gowda listened to the author, but he rediculed him and all the agencies who claimed to work against corruption. No wonder, the author was jettisoned not only out of the CBI, but from the Government of India itself, as if the biggest threat to Government emanated from the truth that he advocated.
I met B R Lall only once – at a talk that I gave in February 2010 to retired IAS/IPS officers and generals at Palam Vihar, hoping to get them to support FTI.
My focus on economic policies and incentives didn't ring a bell with most of those present. Indian officials blame things either on corrupt politicians or corrupt bureaucrats. Things are very simple: PUNISH THE BAD. There is not much appreciation of the role played by institutions (rules) and incentives.
After my talk, B.R. Lall and I kept on the discussion for a while. His was a largely a "penalty-oriented" approach – which I don't disagree with, but to which I would like to add another key variable: incentives. Despite our disagreement on matters of detail, Lall's commitment to integrity in public life shone through very clearly.
Let me end by saying that in November last year India lost a powerful advocate for integrity in public life.
Lall will be remembered for not giving up till the end.
==EXTRACTS FROM HIS WRITINGS AND FROM YOUTUBE===
Please note: By publishing these here, I affirm support for the goals that Lall supported, not necessarily his precise recommendations.
1) Establish a high power “Independent Commission Against Corruption” that will cover all shades of public servants, including the highest politician, as also the people from the private sector. The commission would be absolutely free from any governmental control and will submerge into it the functions of the proposed Lokpal, the existing CVC, the CBI and the enforcement directorate as also of the government as at present in relation to corruption cases.
2) Repeal the provisions of section 26 of the CVC Act as the registration and investigation of a crime should not require any permission from anyone for any criminal charged with an offence of corruption even if he be a constitutional functionary or a legislator of any description.
3) Similarly repeal section 19 of Prevention of Corruption Act. This is a requirement of a colonial power and not of the democracy that boasts of Rule of Law.
4) Amend Prevention of Corruption Act to provide for more stringent punishments. As of now a person amassing even thousands of crores of rupees through corruption does not attract a punishment beyond 7 years. It should extend upto punishment for whole of life for corruption or amassing assets beyond certain level. Do away with the notional fines; a provision need be made to confiscate any of his properties or those of the family members to recover the amount equivalent to misappropriation alongwith penalties.
5) Make Tax evasion a cognizable crime punishable with a Jail term that should be commensurate with the amount evaded.
6) Amend Representation of People`s Act to debar all the chargesheeted persons from fighting elections or from holding any office in the government or in any registered political party. The persons convicted for any term, of course, cannot find any place.
7) Rules under the Benami Property Transactions Act 1988 be framed and promulgated immediately.
Other measures can closely follow in the 2nd and 3rd phases, but in any case if we mean business the whole spectrum of laws and the enforcement need be recast and implemented without any distinction or favour, equally amongst all like the advanced countries.
And finally, on Lokpal bill:
B R Lall
A fierce controversy is raging in the country regarding the creation of Lok Pal as an effective agency to check corruption and black money that have been ruling the roost ever since the drawn of independence. Gandhiji in 1947, A.D. Gorwala committee in 1951, Santhanam committee in 1963 and also D Sanjiviya, the Congress President in 1963, all presented frightening accounts of corruption and black money, the country was steeped in. However all these warning signals were ignored.
There have been scams agalore regularly, but unfortunately the problem received no attention. There is no doubt that corruption exists in all the societies, as basically it is nothing but expression of greed about which Gandhiji said'…the world is not enough for one man`s greed…….." So unless checked by the strong arm of law it will always be there to menacing extent. Countries under colonial rule always suffer from corruption very badly, but take strong steps on attaining independence as happened in USA in 1789 and Singapore in 1959, the very years in which they won their respective independence. In all the well meaning countries around the globe it is only the strong arm of law accompanied with strong enforcement that has made difference to corruption and its progeny the black money, but we have scrupulously been avoiding such action. The enforcement and anti-corruption agencies have remained under the tight control of the same government that they were supposed to investigate. Obviously the slaves (investigators) never investigated the masters. Corruption and black money have been treated as perquisites by the elite and the governing classes, so that no laws/procedures that could check them were ever enacted/ enforced. Lok Pal bill is one such glaring instance. On the recommendation of Santhanam Committee report of 1964 and subsequent to the recommendation of the first administrative Reforms Commission 1966, the Lok Pal Bill was introduced in the Parliament in 1968 but care was taken not to pass it. It lapsed with the Parliament completing its term. Subsequently, it was introduced for 7 times more in every house of Lok Sabha except the last one despite the fast undertaken by the great living Gandhian Shambhu Dutt Sharma. The present effort by the civil society is continuation of that.
The focal issue has been to free the investigating agencies from the control of the executive both administrative and political. The Jan Lokpal is a step towards that direction and has attracted public attention from April when Anna Hazarre undertook fast unto death. The public response was tremendous. The shaken government came down on its knees to break the momentum that it had gathered, but by now it is absolutely clear that the government is not prepared for autonomy for the investigating agency that the Jan Lok Pal bill basically asked for, besides the other issues. By now very marked differences are obvious.
The first issue is to take out the PM from the ambit of the Lokpal. As per the government the PM has to take quick decisions of enormous import, especially in the existing security scenario, that the PM is accountable to law so there is no reason for him to be accountable to anyone else, that the PM can be prosecuted if he is found to be corrupt after he demits the office and Kapil Sibal put a counter question that in which country the ruling PM is prosecuted. It has further been argued that some undesirable elements may make false complaints in order to harass or to blackmail.
All the higher functionaries are subject to the same and work in the similar circumstances. It is not understood, what is the relation between corruption by a PM and the existing security scenario, or his taking quick and important decisions. Does it all give him a licence to be corrupt? The laws of corruption, it must be made very clear, do not permit a corrupt practice even by the PM and under our constitution the PM is not above law. Further, it is a ridiculous proposition that the PM should be prosecuted after he demits office. PM by his central position exercises unfathomed discretion, which at the hands of a corrupt person even for a single day can be catastrophic. How can action against corruption that too a PM wait till his retirement and he be given free hand to loot and bleed the country. If so, let all others charged of corruption be tried after they retire or demit office.Why should A Raja be made to resign prematurely. Sibbal is absolutely wrong in contending that in no country the serving Prime Minister is prosecuted. The facts are just the opposite as Berlusconi the sitting Prime Minister of Italy is being prosecuted at the moment. Prosecution against Fuji Mori of Peru commenced when he was still the President. In Japan during Lockheed Scandal Prime Minister Kakuei Tanaka was forced to resign in 1974 immediately after the allegations of corruption appeared in public though he was chargesheeted in 1976, what to say of being proved guilty and all that. Clinton of USA and Shavernadze of Georgia were dealt with while in office. If Kapil Sibbal thinks that way then let the Prime Minister resign whenever there is some prima facie truth in the allegation against him so that he demits office immediately and the investigations and prosecution can pick up.
Argument that PM is accountable to law coming from a distinguished lawyer is unbelievable and disastrous as everybody else is also equally accountable to law. In any case the Lok Pal becomes relevant only if there is corruption angle and in that case the Lok Pal is the visible arm of law. Under the Lokpal or any other investigative agency the PM is only made accountable to law. If a corrupt Prime Minister is allowed to continue, writing on the wall is clear that the PMO will become the seat of Mafia and this country will be worse of than today as corruption is decentralised today whereas with a Prime Minister beyond any accountability it will get centralised as no action will be possible under the shade of the great umbrella.
Another argument that was also supported by Justice J.S. Verma and Justice Venktachaliya, the retired distinguished Chief Justices of the Supreme Court, is the stability factor arguing that in States there is provision for President's rule under the Constitution but at Centre there is no such provision. As such there will a vacuum in the administration in the intervening period if PM were to be removed. Corruption is a permanent destabilising factor for the society in that it leads to social, economic and political unrest. As compared to that the destabilisation that is likely to occur because of the resignation of a serving PM is nothing. Also the Cabinet is a continuing factor and as per Constituition the responsibility lies on the Cabinet as a whole and not only the PM. The outgoing Prime Minister can be replaced by the senior most member of the Cabinet till such time the regular Prime Minister is elected once again. What happens when nature chooses to remove the serving Prime Minister. After all Nehru, Shastri, Indira Gandhi all died while in office and the No.2 person did take over. If in those crisis situations there was no problem what problem can arise if an undesirable Prime Minister is replaced. That will only save the country from the rot. By exit of such a Prime Minister the country and the society has only to lose its chain of corruption in which it would be tightly held by a corrupt Prime Minister and his team.
The next major issue pertains to judiciary. The case of judiciary is different in that the judiciary in a democracy is the final adjudicator and the interpreter of laws. As such they need not be under the watch of the Lokpal. But at the same time they have to be fully accountable to a different mechanism, the National Judicial Commission that should be constituted immediately and its decisions should be final and non-appealable in any court.
Perhaps the only valid argument advanced by the opponents of the Jan-Lokpal bill is that the Lok Pal has powers of investigation, prosecution, vigilance, administration as also the punishment. At present most of these powers are combined in the governments as they control the enquiry, the registration, the investigation, the prosecution as also the withdrawal. It is these powers that have made and perpetuated the government to be corrupt and uncontrollable. There appears to be merit in the contention of the government that Jan Lok Pal bill will turn the Lok Pal into an autocratic body which will not be in the interest of the country.
Another connected issue is dividing the Public Servants into two categories. Those above the level of Joint Secretary to government will be the subject of the Lok Pal and others will continue under the present arrangement of CBI investigations. It needs be appreciated that all the big cases of corruption involve various ranks simultaneously. Compartmentalisation as proposed will only frustrate the investigations and help the corrupt. We have enough experience of this trick in the single directive that protected the Joint Secretary and the seniors and under that shield all the investigations were evaded.
There is the proposal to split the CBI by taking away the anti-corruption wing of the CBI to Lok Pal and leaving out the economic offences wing. Economic offences wing cannot be separated from the anti-corruption wing as the two are interwoven. Corruption is by the government agencies and bungling by the private sector will be covered by economic offences wing basically. The statistics from GFI suggest that the corruption accounts for only 5% of the off-shore deposits whereas 30% comes from the Drugs and Terrorist crime etc and 65% of the money comes from economic offences only. Though the corruption may contribute just 5%, but is the enabling factor for the remaining 95%. In India also it has been studied by the Transparency International that the truck operating agency pays a bribe of Rs.22, 000 crores to various government departments of which the basic payments are for allowing over loading. The overloading, as per their data, works out to Rs 8-10 lacs crores. Corruption is just the 2.5% and the remaining is in the domain of economic offences, but it accrues as a consequence of corruption. If there was no corruption this generation of black money to the tune of Rs.8 to 10 lacs crores on which tax evasion would be over Rs.2 lacs crores, would not have arisen. The economic offences wing and the anti-corruption wing should move together either to Lok Pal or should remain in the domain of CBI which should not be split and for that some alternate structure be found out. If the economic offences wing is left in the hands of the government, the investigations will not be comprehensive as CBI will not be able to go whole length as at present. Rather there is need to bring the Enforcement Directorate as also the Fraud Squad also under the same umbrella.
The basic premise was to free the agencies from the control of the government, their re-arrangement is secondary. Incidentally I had raised the issue of functional autonomy for CBI as early as 1996 through my article titled "HOW TO MAKE CBI A FREE AGENCY" in Hindustan Times on 1.3.96. I had clearly brought out that the CBI tightly held under the control of the same executive whom it was investigating, cannot deliver goods. That was perhaps the beginning of the fight. This end can be achieved without concentrating powers in the hands of the single institution called the Lok Pal, by strengthening both the institutions the CBI and the Lok Pal as the arrangements exists in other countries. Lok Pal is essentially the Ombudsman of Scandinavian countries in early 20th century and now exists practically everywhere in the world under different names. In USA it is enshrined in the institution of Inspector General but its opinion and recommendation is heard unlike in our country where the effective Lokayukut exists only in Karnataka and Madhya Pradesh. It is the Karnataka Lokayukt only that enjoys sound legal infrastructure and see how beautifully it encircled the mining Mafia and brought the mighty Chief Minister on his knees. However, nowhere in the world the investigation is with the Ombudsman. It is only the preliminary investigation or the enquiry that the Ombudsman conducts. We can follow similar arrangement in India as detailed below.
CBI should continue as it is but should be brought under a statue and made accountable to an independent body that shall be constituted outside the Govt and should function free from the control of the Government functionally as also financially. I had visualised an independent board for CBI in my article of 1996 as referred to above and reiterated in my book "Who Owns CBI: The Naked Truth". The essence was that all the members were to be thrown up by the system automatically so that they are not beholden to anyone in the government or outside. Secondly, after their term, they were not allowed to take any job or profession so that they don't have interest to follow. Third they were all people retired from positions of respectability. Even if one of them had any weakness that will be prevented, neutralised or diluted by their collective actions. Lok Pal on the other hand would combine the functions of Vigilance, the grievance redressal and such like other functions and the moment it comes to investigations, it should transfer the case to CBI with its recommendation. It should be binding on CBI to register such a case if recommended by the Lok Pal and investigate. This arrangement will also meet with all the objections that Lokpal will be an unmanageable body, or will have diabolical concentration of powers.
It has been argued from the side of Government as also some other groups in the media that small groups like the Anna team cannot hijack the fight against corruption, as they do not represent the entire society. Further that they were trying to bye-pass the parliament and thereby thwart the democratic process and hence the democracy. The Aam Aadmi now asks whom such groups and the government are befooling. For 43 long years they did not pass even the lame Lok Pal Bill that was proposed in 1968. Have not the citizens waited for over four decades. What were the great champions of democracy doing all these years? When Anna Hazare gave a call in April, was not the response widespread everywhere in the country that had unnerved the government that it was compelled to ask Anna's team for negotiations. They may or may not be the elected representatives, but they have been thrown up and given respectability by the voice of the people. Even if a few persons say a right thing why not consider and adopt. Does whole of India not want corruption to be tackled? If any proof is required the Government can hold a referendum and let me assure that the voting in favour of tackling corruption effectively will be near 100%. It does not matter if the term Referendum does not occur in the Constitution as has been opined by some experts in the TV debates. Alternatively shall we wait for clouds to build Yemen or Egypt style or are we waiting for the Georgian experience where the people invaded the Parliament house. The President Shavernadze who was addressing the house had to run for his life. It was depicted by someone on the internet that the President nearing 80 was sprinting at his age chased by the crowds. It is the police that saved the life of the President, but he had to tender his resignation there itself to save his life and not to throw the country in violent struggle. Will that only mean the opinion of the people for our government and our shallow thinkers? Let me warn that if necessary steps are not taken, that day will not be far off. Now Anna Hazare wlll be prevented from fast in Delhi from 16th August or people accompanying Baba Ram Dev could be attacked in their sleep but imagine the consequences if 50 lacs people were to converge on Delhi from all the sides as it happened in Georgia, who can stop them lawfully or even by coercion. Let us avoid such catastrophe and establish financial order in place of financial terrorism that the present economic and administrative and political managements have led us into.