Wednesday, December 21, 2011

CBI must not report to the Lokpal…..

An interesting fact was brought out yesterday by some journalists on TV last night. The American FBI and the CIA, and the British MI5 and MI6 all report to their respective governments. Not to any unelected ombudsman like the Lokpal. The FBI reports to the Department of Justice headed by the Attorney General, an appointee of the President; the CIA to the Director of National Intelligence, another appointee of the President of the US. Both the MI5 and the MI6 in the UK come under the purview of the Joint Intelligence Committee which operates under the Cabinet Office (something similar to our PMO). All these organizations – inter alia – are responsible for investigating charges of corruption against public officials (just like the CBI is in India). Since these two countries are amongst the original democracies in the world, isn’t there a lesson for India to learn?

Rather than making the CBI report to the Lokpal, there is a need to strengthen the government in a fractious democratic set-up like ours. If a democratic set-up were accompanied by a weak government, there would be complete anarchy. The government would be unable to take any important executive decisions either because the decision making would lie outside its domain or because it would be afraid of who was looking over its shoulders. We are already seeing the impact of such weakness today – decision making has almost stopped in the corridors of power because of fears of being under intense scrutiny of media and others. A weak government will lead to a similar stoppage of decision making – even in emergency situations. Take the economic challenge that India faces today. The government is weak as it is – thanks to the nature of the coalition. Decision making is already very slow or non-existent as explained earlier. If on top of this, executive powers of the government were taken away in bits and pieces, then the government would come to a complete halt. That is the reason why in all democracies, the ultimate power in all cases, vests with the government of the country.

What Mulayam Singh Yadav and Laloo Yadav (unfortunately they are not the flag bearers of clean politics) have said is what I have said many times over. In fact, my post of Dec 13th was titled “License Raj, Police Raj….now get ready for the draconian Lokpal Raj….” so as to capture the precise worries that these two senior politicians have expressed. By ceding investigation, prosecution and adjudication to the Lokpal, that is what we will create – a Lokpal Raj far worse than even a Police Raj.

The Shiv Sena (again no flag bearer of civil liberties or clean politics) has compared the Lokpal to Gaddafi – a comparison I had myself made a few days back on December 12th (A farce of a debate…..): Imagine if the local cop who investigates a crime, also prosecuted the accused, and pronounced the verdict. Sounds similar to Gaddafi, Saddam Hussein or Hitler???

The BJP is being too clever by half in saying what it is saying about the CBI. The BJP wants the investigative wing of the CBI to go to the Lokpal, but it wants the Prosecution to be independent. This automatically means that the powers to pass orders will also be out of the Lokpal. So while it is not saying it clearly, even the BJP is saying that the Lokpal shouldn’t be the all-powerful body that Anna wants it to be.

None of this is music to Anna’s ears. But then the reality is that his demands on the CBI are unreal.

The games being played in Delhi raise the question of what will happen to the Lokpal Bill when it is put to voting in Parliament. What is the possibility the Bill will go through at all? The first point to note is that without either the BJP or another large block of the opposition (SP, BSP, Left all together) coming on board, the Bill cannot be made into law. The UPA simply doesn’t have even the simple majority that is needed in the Rajya Sabha to pass the Bill. So even if the Bill clears the half way mark in the Lok Sabha (since the UPA has a majority), it will fail in the Rajya Sabha. My cynical mind tells me that this may well be what the politicians have in mind. The Congress will want to get the bill passed in the Lok Sabha to prove its credentials (It’s a commitment the Congress has made as Sonia said). The BJP and other opposition parties will make sure the Bill is blocked in the Rajya Sabha – proving their pro-Anna credentials (they will claim they blocked a weak Lokpal Bill). Everyone will have something to talk about – and no one will have the Lokpal Act to worry about. Nice, smooth and clever!

It’s time for common sense to prevail. Even if the Lokpal were given all powers – the Supreme Court would most likely throw the bill out as it would fundamentally be contrarion to the Constitution. The victory, if any, of Anna would be shortlived.

Without doubt, the CBI Director should be independently chosen. The current formula is good. The PM, the Leader of the Opposition in the Lok Sabha and the CJI. I am happy it is the CJI in the selection committee and not the Lokpal. I am against making the Lokpal any bigger than it has already been designed to be. It needs checks and balances. It cannot be the one choosing the CBI Director – who may then be obliged to act according to the wishes of the Lokpal. Someone pointed out on TV last night how J Edgar Hoover – the first head of the FBI – became a law unto himself. He would track and trap politicians of all kinds; do things that were unsanctioned in law; things were so bad that politicians started kowtowing to his wishes. The same could happen if the Lokpal was involved in the selection of the CBI director. The CJI is a person who everyone trusts – and much as there is a possibility of a conflict of interest here also, it is better than the Lokpal replacing the CJI.

Also with a Lokpal Act in place, the government will be unable to exploit the CBI. Let’s say that the government arm twisted the CBI into doing what it wanted it to do. There can be a complaint of corruption made to the Lokpal. The Lokpal needs no permission to start an investigation against the Minister looking after DOPT. Abuse of the CBI happened in the past because no investigation could be mounted against ministers unless the permission to prosecute was granted. And that never would be done.

The real truth is that this is the farthest we have come in having an independent CBI, a strong Lokpal and many other acts which will work together to eliminate corruption. This is not the last time the Lokpal Act will be discussed. Indeed, if there are infirmities, they can be addressed in the future. For now, politicians must unite to make the law a reality – rather than give it the kind of burial that the Women’s Reservation Bill has been given….

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