Lokpal in A Hurry

Civil Society News, New Delhi

A high-voltage campaign to draft in record time a major anti-corruption law for India won concessions from the government in the street, but thereafter its leaders found the going much tougher.

As a committee representing the agitation, known as India Against Corruption, held its first meeting with the government, political interests unleashed a smear campaign against two of its members, thereby seeking to shift attention from the core issue of corruption in high places. At another level, well-meaning people advised a reality check for the campaign, expressing concern that an important law drafted in haste without sufficient consultation would do little to root out corruption in real terms.

The allegations against Shanti Bhushan and Prashant Bhushan, father and son and both members of the five-member drafting committee, were clearly motivated and timed with the formation of the committee.

Prashant Bhushan has been in the forefront of a movement for judicial accountability. He has also appeared in innumerable cases of public interest. Activists rallied to his defence with Internet petitions. But there was also a view that father and son should step down from the drafting committee till their names were cleared - as would be expected of others in public life.

More worrisome than the personal angle was the demand to draft the Lokpal Bill by June-end and have it passed as law by 15 August. Could a law, which seeks to create a credible ombudsman to reign in corruption, be rushed through in this manner and then be expected to work? A draft of the Jan Lokpal Bill presented by the campaigners had assumptions with which many authorities seemed to disagree.

It was also surprising that the demand for a Jan Lokpal Bill came to be raised in this shape and form through a public agitation when it was already being discussed in the National Advisory Council (NAC) chaired by Sonia Gandhi and the National Campaign for People's Right to Information (NCPRI).

Prashant Bhushan, Shanti Bhushan and Arvind Kejriwal, a key organiser of the India Against Corruption campaign, were part of this process. But they made no mention of the work already done in the NCPRI and NAC.

Instead, at the Jantar Mantar protests in Delhi, where Anna Hazare, the 73-year-old Gandhian from Maharashtra, went on hunger-strike, the draft Jan Lokpal Bill was used to whip the Congress and the Manmohan Singh Government.

Absent at Jantar Mantar were many of the leading members of the NCPRI like Aruna Roy, Harsh Mander, Shekhar Singh and Nikhil Dey.

The NCPRI made it clear that it would continue with its own work on drafting a Jan Lokpal Bill. The members of the committee appointed by Hazare to deliberate with the government were welcome to participate in the NCPRI's process. But the NCPRI would not define itself in terms of the committee appointed by Anna Hazare.

A law providing a strong Lokpal is many years overdue. A group of ministers in the Manmohan Singh government framed a wishy-washy draft law that no one was happy with. The NCPRI, working through the NAC, aimed to create an effective counter to the government's inadequate proposals. But time was needed to have buy-ins from competing interests and bring as many groups as possible on board. Only this would make it a 'people's exercise'.

To have a Jan Lokpal Bill at gunpoint as it were seemed counterproductive to many reasonable people. Complex legislation needed thought and debate. It required validation and an eye for detail.

Aruna Roy, a veteran of the RTI campaign, said: "India is a diverse country and we have to think out of all possible boxes, not confining ourselves to a single draft."

Former Chief Justice J.S. Verma wondered whether the draft Jan Lokpal Bill put out by India Against Corruption didn't amount to changing the basic structure of the Constitution.

Kejriwal claimed that enough consultation had taken place. But the flip-flops that the draft went through with multiple versions floating across the Internet seemed to make it apparent that viral social marketing of a complex idea is not a substitute for intense dialogue.

Several key questions needed to be addressed. For instance, should judges of the high courts and Supreme Court come under the Lokpal? Is it right to concentrate in the Lokpal sweeping powers of investigator, prosecutor and judge at the same time? Is it feasible to bring all kinds of grievances under the Lokpal or should he be focused on major corruption and the smaller grievances be dealt with better processes in government?

There were also reservations over a self-appointed committee of five people representing the whole of Indian civil society in negotiations with the government. Could civil society be defined so narrowly?

The committee consisted of Hazare, Kejriwal, Prashant Bhushan and Shanti Bhushan and Justice Santosh Hegde, the serving Lok Ayukta in Karnataka. Should the choice have been so narrow? Should two members have been from one family? The committee had no representation from the opposition, the private sector, the bureaucracy, the serving judiciary and the investigative agencies.

PRE-LEGISLATIVE PROCESS: The past seven years have seen civil society groups build their capacity to shape laws through wide consultation at the pre-legislative stage.

Laws on the right to information, rural employment guarantee, forest peoples' rights and the right to education have all been drafted through low-key consultations with politicians, bureaucrats and others. The experience of activist groups at the grassroots has proved to be invaluable both at the time of drafting the laws and when implementing them.

The NCPRI has played an important role in building this web of interactions and injecting people's concerns into the legislative process. It has worked to influence the government through the NAC. It is a difficult and immensely valuable role because of the gaps that develop between the people and those they put in power.

The NCPRI includes seasoned negotiators like Roy, Singh, Dey and Mander in Delhi and many others like them across the country. Kejriwal and Prashant Bhushan have also been part of the NCPRI and made very important contributions.

It was, therefore, doubly puzzling that during the Jantar Mantar protest and while choosing the committee to interface with the government no mention was made of the NCPRI.

The answer could perhaps be found in the divergence of approach. A note issued by the NAC working group on the Lokpal Bill and the NCPRI said:

"The Lokpal Bill is a very important piece of legislation, which will need wider and more geographically spread consultations than has hitherto occurred. It is only the beginning of a discussion and debate on a seminal legislation, which is the basis of people hoping to build a more ethical and accountable country. In a democratic process, discussions do not often progress in a linear trajectory, particularly if it believes in an inclusive process necessary for a mature piece of legislation.

"The only space the NAC actually provides is for discussion and debate when government begins a process of legislation with little or no participation of its people. This space, which also has its own process of functioning and its internal democratic nuances, cannot be seen in simplistic adversarial terms or as this versus that."

THE NCPRI'S ROLE: As joint convener of the NCPRI, Nikhil Dey says that the NCPRI had initiated a process for sending a draft Jan Lokpal Bill to government and formulating views on a bill on whistleblowers that is in Parliament.

About three months ago there was a meeting of the NCPRI to look at the issue of whistleblowers because several people using RTI had been killed. It was then that a group was formed which would look at issues like the Lokpal and protection of whistleblowers. Kejriwal and Prashant Bhushan were in the drafting group.

The Bhushans and Kejriwal were also present at an NCPRI consultation on 3 April and a consultation of the NAC on 4 April.

Asked about this in an interview with Civil Society on 14 April, Kejriwal said: "What is the legitimacy that the NAC has? What is the legitimacy that the NCPRI has? Why should only these people discuss the Lokpal Bill? Why shouldn't someone in Mumbai or Bulandshahr discuss the bill? What is the legitimacy of the NAC? It is as arbitrary as anything else."

But two days later, on the evening of 16 April, an email received by this magazine from India Against Corruption said: "A number of valuable suggestions had come to us, especially during the NAC sub-committee and the NCPRI meeting on 3 and 4 April, which have now been incorporated in the latest version (2.2). However, we are still in the process of evolution, and the Bill would undergo further changes as and when we receive more suggestions."

Dey says that when Kejriwal presented a draft to the NCPRI on 3 April, "a set of principles was looked at to see how much broad agreement existed." It was found that on a couple of principles there was disagreement.

"There were others on which it was acknowledged that a lot of work needed to be done. It was very much a work in progress," he says.

The two points on which there was disagreement were on transparency and how grievances should be redressed. To burden the Lokpal with all kinds of grievances would bring the system to halt. A bottom-up approach would perhaps be better, it was pointed out.

On transparency it was felt that Section 8 of the RTI Act should remain the basis. But Kejriwal and Shanti Bhushan wanted all information collected by investigative agencies to be put in the public domain even if it had nothing to do with the case.

"When you are running a movement and you make your demands forcefully you can win your concessions," cautions Dey. But there is no substitute for consultation - both with the government and people's groups. It is important to get everyone's experience on board and allow all objections to be made at the time of drafting the law. That way everyone knows where they stand.

Kejriwal insists his group has held consultations. He says there has also been much learning from the working of the Chief Vigilance Commissioner (CVC), CBI, judiciary and Lok Ayuktas in the states.

Dey points out that it is not a question of consulting one, 10 or 15 people. "Instead it is to draw upon the experience that exists across the country. The capacity all of us have to enter into open debate needs to be brought on board. One of the demands by the NCPRI has been to have a very robust pre-legislative process."

About the 15 August deadline set by Hazare, Dey argues that there is need for urgency, but "you can't shortchange the consultative process." Passing a law is one thing and implementing it quite another. This has been the experience with RTI and NREGA. "The law was opening doors. But people had to walk the path. This is going to be the case even more so with the Lokpal Bill," he explains.

Harivansh, Chief Editor of Prabhat Khabar, based in Ranchi, agrees. He has vast experience in exposing corruption. The stories on Laloo Prasad Yadav and Madhu Koda, among a whole lot of others, were broken in Prabhat Khabar. "A law is a serious matter and requires everyone to buy in. Nothing changes overnight," says Harivansh.

"It is utopian to think that you can bring lasting change without going through the State. It is essential to engage with the political class."

FED UP WITH CORRUPTION: For more than two years now, India has experienced a deluge of corruption. First there were the huge sums that flowed into IPL cricket and out of it. Then there came the inflated bills for the Commonwealth Games. Next were the manipulations involving spectrum for 2 G services in mobile telephony. Finally, there was the appointment of a Chief Vigilance Commissioner (CVC) who had charges pending against him.

Such was the grime and filth from this concentrated downpour that when India Against Corruption, based at Kejriwal's Ghaziabad apartment, reached out four months ago, the middle-class was eager to support it.

People had many reasons to be angry. They were tormented by inflation, couldn't get their children into schools, worried by the rising cost of health care, harassed by crumbling civic services in cities, disgusted with traffic jams and much else.

Corruption came on top of all these problems. It didn't help that the government, instead of confronting corruption head-on, chose to act at its own pace. An impression gained ground that a nexus between bureaucrats and politicians had crossed all limits. In India Against Corruption the middle-class found a medium through which they could target politicians and bureaucrats. Rallies in several cities were well-attended. But what everyone really wanted was a SUPERMAN to set everything right instantly. Eager to fulfil this middle-class yearning, India Against Corruption conjured up one such superman in the shape of an exaggeratedly empowered Lokpal who could bring to book judges, politicians and government officers.

This Lokpal, with extraordinary authority, would not only deal with big ticket corruption, but also ensure that people got their ration cards, passports and driving licences without paying bribes to government officials.

A Lokpal literally means a people's ombudsman. India Against Corruption began cobbling together its own draft of the Jan Lokpal Bill or a people's draft of a law for having a people's ombudsman. Using SMS, email, Twitter and Facebook it gave the impression that a law could be shaped through interactive media and rapid-fire consultations.

A Jan Lokpal Bill draft was shaped by Kejriwal, Hegde, and Prashant Bhushan. It had the support of Anna Hazare, J.M. Lyngdoh, Kiran Bedi, Shanti Bhushan and others.

When letters to the Prime Minister's Office and to Sonia Gandhi to discuss the draft went unanswered, it was decided that Anna Hazare would go on a hunger-strike to force the government's hand.

Anna is dreaded by politicians for his hunger-strikes and strong-arm measures. A simple, well-meaning man, Anna once worked for the Army. He became famous 25 years ago when he created an ecological model for his village, Ralegan Siddhi, taking it from poverty to economic prosperity. Over the years he has been more famous for fighting corruption in Maharashtra.

Anna went on his fast on 5 April, demanding that the government finalise a draft Lokpal Bill very quickly and pass a law by 15 August.

Concerned about its image and Anna's health, the government blinked and conceded Anna's demands. But in the chaos that has followed it remains to be seen whether middle-class India is any closer to having its superman.

JANTAR MANTAR: Anna's presence at Jantar Mantar was rapidly used to become a rallying point. There were campaign trappings such as white caps with 'I am Anna Hazare' written on them. There were also carefully chosen slogans, banners and flags.

Sri Sri Ravi Shankar and Baba Ramdev have been part of the India Against Corruption movement. They ensured that their supporters turned out in substantial numbers. The BJP's front organisations among students and workers also marked their presence. Ex-servicemen provided solid support.

With a core crowd guaranteed and television channels eager to get middle-class eyeballs, it became easy to stir up what seemed on TV and Internet like an uprising but was in reality people randomly expressing themselves against corruption.

Anna rapidly became an icon swathed in glowing accounts of his social activism. Everyone wanted a piece of the action and film stars turned up in droves.

Finally, Anna dropped his bombshell about Narendra Modi being a good chief minister. He was roundly attacked for this by the National Alliance of People's Movements (NAPM) and intellectuals and activists in a statement issued by Teesta Setalvad.

There could be two views on rural development in Gujarat under Modi, but what worried many was how Anna hadn't noticed that the Lokpal's post had been vacant in Gujarat since 2005.

As the scaffolding was dismantled at Jantar Mantar and Anna's committee contended with issues of credibility, no one was any clearer what the Lokpal Bill would finally contain.

Interview:

'What legitimacy do NCPRI and NAC have?'

Arvind Kejriwal has been the moving force behind the India Against Corruption movement and the fast unto death undertaken by Anna Hazare at Jantar Mantar. He spoke to Civil Society on his draft for a Jan Lokpal Bill and some of the concerns expressed over how it has been put together.

Tell us about how the campaign was organised. You have used viral marketing very effectively.

We used email, fixed lines, SMS, Facebook, Twitter - we used just about everything to bring people together on the question of corruption, the Jan Lokpal Bill as the solution and Anna Hazare going on fast. This went on for two to three months.

The use of the Jantar Mantar site and extrapolation of the experience there across the nation was also very effectively done. Could you tell us a little about your strategy?

Two or three things happened. First, people are fed up with corruption. Second, we wanted a rallying point. Third, we wanted to awaken the nation against corruption. Fourth, the message was widely spread through technology. Fifth, Anna going on fast aroused the emotions of people: here was a 73-year-old man willing to die to put an end to corruption.

There has been some criticism of the choice of five persons for the committee which will discuss the bill with the government. People see the committee's appointment as arbitrary. What do you have to say?

When a committee is constituted to discuss the Jan Lokpal Bill obviously the people behind the drafting of the Bill have to be its members because they are the ones who can explain why this clause, why that provision etc.

We can't have elections for such a committee. There is no end to representation because someone feels a woman should be included and someone else that there should be a Dalit and so on.

The solution therefore was that people who drafted the bill should be in the committee with the idea that they would take all measures to ensure a huge amount of public consultation. The people in the committee have been open to public consultation in the last four months and it is on this basis that the draft has been put together. If you see the first draft and the one that we now have there is a vast difference. There have been as many as 12 versions of the bill, which shows that we have been trying our best to get as much public response as possible.

There was already a process in motion for drafting a Jan Lok Pal Bill under the NCPRI and there was a consultation in the NAC. You yourself, Prashant Bhushan and Shanti Bhushan were a part of this process. So there were a lot of people involved in drafting something called a Jan Lokpal Bill. Why weren't these people included in this committee?

What is the legitimacy that the NAC has? What is the legitimacy that the NCPRI has? Why should only these people discuss the Lokpal Bill? Why shouldn't someone in Mumbai or Bulandshahr discuss the bill? What is the legitimacy of the NAC? It is as arbitrary as anything else.

But just in terms of people drafting the bill.. There would be elements in your bill which would have come from those discussions and debates..

Our Jan Lok Pal Bill has come out of discussions with many other groups over the past four months. We have had a series of discussions with lawyers, former bureaucrats, former judges, former CBI officers.

And the NCPRI consultations where people like Shekhar Singh and Aruna Roy..

They were hardly 30 people and a closed group.

But you were a part of that group..

The NCPRI consultation was a closed consultation. It was not thrown open to the public. The consultations that we had earlier were far more inclusive than the NCPRI consultation.

Okay. But till the 3 and 4 of April you were part of that consultation.

Yes.

Are you saying that it was an illegitimate consultation?

No, no. We are going everywhere.. Whoever is calling us for consultation.

But weren't you involved in that consultation as a part of the NCPRI process? Or were you external to the process?

Look I don't want to get into internal or external. Now, too, as members of this committee, we are planning to hold a huge number of consultations across the country. Our purpose is to get as many good suggestions as possible.

Suppose some people were to say that they don't accept the committee, are you open to a proliferation of consultations?

Let there be as many consultations as possible and let them all send their suggestions here.

But suppose they say they don't want to define themselves in terms of the committee because they don't agree with the committee. What happens then?

They would have to agitate against this committee.

The NCPRI has been involved in drafting RTI and other legislation. At what point of time did it lose its legitimacy in your eyes?

The NCPRI is just one among many groups.

And you feel you want to do this not as a part of the NCPRI but as a separate movement.
Why should everything be a part of the NCPRI?

No, I'm just asking.

Why should everything be a part of the NCPRI?

Okay. So, what you are saying is that it need not.

All laws need not be drafted through the NCPRI and the NAC.

There is a view that to draft a law on the back of a surge is not a wise thing. What do you have to say?

I don't agree with that. This is a law which is less technical and more of a political battle. It has been pending in Parliament for the past 42 years. It is not as though the demand for a Lokpal Bill has been raised only by us. The demand for anti-corruption measures has been very strong in this country. The reason that it hasn't happened so far is that there has been a direct conflict of interest between the people who have to draft the anti-corruption law and those who are affected by it. Therefore it has to happen on the back of a surge.

Your draft, as you yourself say, is just four months old.

How much time do you think is needed?

It is difficult to say. The draft needs to be thought through and then there is Parliament.

So, you are saying there shouldn't be a deadline.

No. A time limit is perhaps a good thing. But people are worried that we have swung to the other extreme.

Do you know how long it took to draft the RTI Act? It took just two days.

But a lot of consultation preceded that.

What went into it was the functioning of RTI in the country. (As far as the Jan Lok Pal Bill is concerned) there has been a lot of experience with regard to the functioning of the CVC, the Lok Ayukta, the CBI. Three years ago, on the basis of this experience, we filed an affidavit in the Supreme Court. As far as we are concerned the process has been going on for the past three or four years. It is possible to sit down and plug the loopholes in a very short time.

But what if there is more than one view on how the loopholes should be plugged?

In the NCPRI in two days of discussion we narrowed our differences down to just two issues.

So what you are saying is that the sooner we get down to this and get over with it the better?

And it has to happen on the back of a movement. Otherwise we will get a very weak anti-corruption law.

Interview:

'Deadline for lokpal cannot be at the cost of consultation'

Nikhil Dey is the low-profile joint convener of the National Campaign for the People's Right to Information (NCPRI). As a member of the Mazdoor Kisan Shakti Sangathan (MKSS), he has worked extensively at the grassroots for the implementation of the RTI Act and the National Rural Employment Guarantee Act (NREGA). Excerpts from an extensive interview:

The NCPRI had a process in place for drafting a Jan Lok Pal Bill. This was a part of a larger process under the NAC. Consultations were held in which Arvind Kejriwal, Prashant Bhushan and Shanti Bhushan were involved. At which point did that process stop and this new draft of the Jan Lokpal Bill emerge?

About three months ago there was a meeting of the NCPRI at which we were looking with a fair amount of concern at the whistleblowers issue because several people had been killed while using RTI.

At that time a group was formed that would formulate a more comprehensive draft bill which would look at issues like the Lokpal and protection of whistleblowers. Arvind Kejriwal and Prashant Bhushan were in the drafting group along with others and I was also supposed to look in and see what was happening.

Arvind, independently, and may be also as a part of that process, went around to many other groups and that draft kept getting changed. Finally, I am not in a position to say whether it could have been called an NCPRI draft.

So, then, the draft that we are now seeing...

We have not during the current agitation put out a draft saying that this is the draft that we want adopted.

Arvind’s draft was discussed at the NCPRI meeting on 3 April. Actually, a set of principles was looked at to see how much broad agreement existed. A couple of them were identified as being principles on which there was disagreement. There were others on which it was acknowledged that a lot of work needed to be done. It was very much work in progress.

There was also an NAC consultation?

It was the next day. The issues which came out at the NCPRI meeting were presented. Arvind, Prashant and Shanti Bhushan were present. They were present at both the NCPRI meeting and the NAC consultation. The two areas of disagreement which emerged at the NCPRI meeting remained.

What were those two areas?

The first was the inclusion of grievance redressal within the ambit of the Lokpal Bill. One view felt it was very necessary because it is difficult to separate grievances from corruption.

The other view was that if you take ordinary grievances which have no connection with corruption then you will overburden the system with the result that you will neither be able to get grievances redressed not fight corruption. I believe that you have to deal with grievances bottom up. What we have is very much a top-down approach. It starts with the Lokpal and Lok Ayutka at the top and there is the hope that under their supervision the overall vigilance structure will be tighter

On grievances, to my mind, you have to start with that individual who doesn’t get a job card or ration card or wages under NREGA. How do their grievances travel up, let alone be heard and addressed?

Are you saying that the Lokpal should be for larger corruption and for everyday problems better processes are needed in government?

And those need to be strengthened but through a separate legislative design and structure or a separate administrative design and structure, whatever it might be.

What was the second point of disagreement?

The second point was on transparency. There was a general agreement that the RTI Act would provide the minimum basis for transparency. Now Arvind and Shanti Bhushan believed that Section 8 of the RTI Act is too liberal and allows too much to be withheld. Therefore, they felt that at the point when the chargesheet is filed by the investigating agency everything except two areas – national security and the protection of whistleblowers – should be put up on the website. Many people believe that investigating agencies have extraordinary powers to go into people’s lives, tap telephones and so on. They get hold of a lot of material which may have nothing to do with the corruption case.

The idea of RTI is for people to get information on government. Here the government is getting information about people and making it public.

You have been involved with framing at least two pieces of national legislation. What does such consultation involve?

The Right to Information Act was extremely fortunate to have gone through years of work before anyone in government thought that this is something which must be legislated on. It became legislation in 10 states before it became national legislation. In each state it got tested and debated and each state had different experiences. The richness of that debate existed.

The first Freedom of Information Bill passed by the BJP-led NDA government at the Centre was condemned all around because everyone knew which were the specific provisions which were a problem. That is why when the draft legislation went to the NAC there was consensus on it.
And in the case of the NREGA also there had been a lot of consultation. So it was clear what people wanted, what they didn’t want and finally what came in the NREGA was 100 days of employment though the campaign position was 365 days. The campaign demand was ‘per individual’, but in the law it was ‘per household’. But everyone knew. It was very clear.

So the process is critical to the workability of the law.

Absolutely. When we say that we need civil society participation, the idea is not to talk to one, two, 10 or 15. Instead it is to draw upon the experience that exists across the country. The capacity all of us have to enter into open debate needs to be brought on board. One of the demands by the NCPRI has been to have a very robust pre-legislative process.

A committee of five people representing all of civil society and all of India. Do you have a view on this?

For us the priority has been two- fold: One is how broadly can we mandate the consultative process? It doesn’t mean just asking, but also finding ways to take those views on board. Secondly, where there are essential principles of the law, to try and negotiate those with the government. When you are running a movement and you make your demands forcefully you can win your concessions, but finally a law has to be implemented.

So your focus is not the committee but the process.

Yes and we would now urge the committee to ensure that the consultative process is as wide as possible.

But you have a deadline of 15 August?

There is a need to act urgently. But you can’t shortchange the consultative process.