The Lokpal concept is flawed.....

Now that the tempers are starting to cool, many interesting aspects of the Lokpal idea are starting to come out. For example, why exactly should we believe that the proposed Lokpal will not become corrupt?  How exactly will the lofty ambition of speedy justice be achieved? Have the proponents of the Jan Lokpal Bill analyzed the issues that plague the country or are they mere greenhorn revolutionaries?

I doubt if the supporters of the Jan Lokpal Bill have done much research on the reasons behind the failure of the current laws that exist in India. Their panacea for everything seems to be that the Lokpal will be a body of “non-corrupt” person(s) and their only explanation for this assumption is that this body will be appointed by a group of civil-society luminaries. This is naïveté at its peak. But even if one were to keep that aside, and assume that such a corruption-free institution could be set up, its worth asking how this body plans to deliver justice within the one-year timeline that it has set for itself.

First and foremost, let’s look at the Judiciary. Everyone accepts that the Judiciary is truly independent. In fact, we know this because of the pain-in-the-ass they have become for the executive of late! The judiciary has been vested with enormous powers under the Constitution.....starting first and foremost with the selection of judges, defining the rules of conduct......etc. And yet, the Indian judiciary has failed miserably. There are nearly 31 million pending cases all over the country including 4 million in the High Courts and 55,000 in the Supreme Court. It would take a few hundred years for the High Courts to decide on these pending cases assuming that no fresh cases came up. It is also reported that the judiciary is highly corrupt.....some research I did suggested that at least 20% of the judges are corrupt. The Chief Justice of India has recently himself been under the needle of suspicion. So the independence of the judiciary has not been able to make it corruption-free. The proponents of the Lokpal Bill should ask themselves the question: Why will the Lokpal not become corrupt just as the judiciary has? In fact, like Lord Acton said “Absolute power corrupts absolutely”. Why won’t the Lokpal suffer the same fate?

Leaving the corruptibility of the Lokpal aside, the question that begs to be asked is: How will the Lokpal deliver speedy justice? For justice to be delivered, the complaint needs first to be investigated. Then comes the trial. Let’s take the example of the CBI – the most prized police organization in the country. There are about 10,000 cases pending in the CBI courts alone and many more are in the pipeline (before they can be taken to court). There are nearly 4000 sanctioned CBI police officers.....and yet they are unable to close matters within a year. The CBI courts are able to dispose off only about 700 cases a year....which means they are about 15 years behind schedule. How does the Lokpal plan to deliver justice within a year? By creating another body with maybe 50,000 sleuths? Or is it their case that the CBI is totally corrupt and hence takes longer? But this brings us back to why we should even expect the Lokpal to be corruption-free?

Then let’s take the process of trying the cases the CBI brings to court. There are some 19,000 sanctioned judges in India.....29 in the Supreme Court, 1200 odd in the High Courts and the remaining in the lower courts. As mentioned earlier, the backlog of cases in the judicial system is of nearly 31 million cases......nearly 85% of which are in the lower courts. Why is there so much backlog? One main reason is that the number of judges is too small. In the US or UK, there are about 100-125 judges per million of population; in India that number is just about 10. So we should increase the number of judges. But we are unable to fill up even the current sanctioned head-count of judges....there is a 15-20% shortage of judges. Why are we not able to hire more judges? The main reason is the poor pay scales. It’s far more profitable for a lawyer to continue his/her practice, rather than become a judge. The other reason is the huge number of “appeals”. Almost all matters which originate in the lower courts end up in the higher courts. But isn’t appeal virtually like a fundamental right of people? Can we do away with it? Incidentally, the Lokpal Bill has no reference to what happens if a person is aggrieved with the decision of the Lokpal. Will he/she be allowed to appeal in the High Courts and Supreme Court? If that’s allowed, then won’t it take the same amount of time as at present? The third reason is the nature of the pending cases. A bulk of the cases pending are petty cases......related to the motor vehicles act (jumping a red light etc), petty crimes such as theft (some even related to theft of Rs 10!) and even some funny ones (slapping, insult) etc. But if the issue is only one of removing these small cases, shouldn’t we just set up special courts to try these petty cases? If we did that, wouldn’t the regular judiciary itself be able to decide on corruption cases much faster?

Are we saying that for the Lokpal to succeed, we need to hire 10 times more number of investigators and 10 times more number of judges (I don’t know how)? If that’s the case, why not simply hire more under the present dispensation? And are we saying that the Lokpal will not be corrupt only because he/she is appointed by a bunch of civil society activists? This is so naive that one even wonders whether the touted middle class urbanites of India have even done their basic homework. Why should we take them seriously at all?

The solution lies in taking note of the current problems and cleaning up the existing machinery. And becoming real. Solving the grass-roots problems rather than doing cosmetic surgery. I have discussed these ideas before, but it’s worth a summary:

1)      Reduce the size of the government. Government must get out of all businesses; it must limit itself to policy issues and strategic issues (defence, etc). Its job must be to build the right environment for business to succeed. It must act as a regulator that makes sure that there are no violations.

2)      Improve the pay scales of key people. We simply cannot pay the senior functionaries (IAS officers, Chief Justice of India etc) salaries of Rs 1 lac a month in the present consumerist environment where the best luxuries are available in the market. Likewise, MPs need to be paid much more.

3)      The judiciary needs to be cleaned up. I am suggesting that its independence be reined in a bit.....in the sense that it must be held accountable. It must be brought under the RTI act, the Prevention of Corruption Act etc. It should not be allowed to shield itself from the regulatory authorities. Further, the number of judges needs to be increased.....this will happen only if pay scales are improved. More special courts like mobile courts need to be created to take care of ordinary less-serious cases. The power of appeals needs to be reviewed. All cases simply cannot be allowed to go further up.

4)      The CBI should be made independent like the Election Commission is. It should continue reporting to the government, but it should be made apolitical like the EC has been made. Both the ruling and opposition parties must be involved in the choice of CBI Director (but there should be no role for civil society activists!). I am not suggesting independence of the type the judiciary enjoys. I would rather have a strong government (which is accountable through the process of elections) than an independent CBI (which is not accountable to anyone).

5)      The Election laws need to be cleaned up. New qualifications need to be laid down in line with the overall progress in education levels in the country. Elections should be largely state funded, but private funding of elections should also be allowed. In fact, election funding should be made tax-free for corporations.

But whatever happens, we don’t need a super-cop who goes against the very fundamental idea of the Constitution. A super-cop who can lord over all the independent authorities the Constitution has provided. A super-cop created by what is largely a metro phenomenon.....and is born out of shallow thinking and understanding.

The real truth is that the proponents of Lokpal have failed to understand the issues before mounting their struggle. Their cause is perfect but their understanding is shallow. They are looking like a bunch of zealots......revolutionaries who could well cost India its democracy. Their methods are coersive. Anna Hazare is a well intentioned man, but it looks like he has got misled by his civil society activist-followers. It would do his cause much better good if his followers believed in the Constitution......