This is a draft prepared as a public service. It is not the official view of IAC . The flag bearers of IAC may want to modify this and make it the official view of IAC. There is a fear spoken or unspoken of whether the Lokpal can generate real outcomes. This booklet hopes to dispel these fears. Sanjay Bhargava ( sanjaybhargava@yahoo.com) put the content together with inputs from a lot of people. Sayori Mukherjee ( send2sayori@gmail.com) spent many hours as a volunteer on the design and layout. It is their hope that this booklet will serve a useful starting point for India to live up to Rabindranath Tagore s dream for India.
Where the mind is without fear and the head is held high Where knowledge is free Where the world has not been broken up into fragments By narrow domestic walls Where words come out from the depth of truth Where tireless striving stretches its arms towards perfection Where the clear stream of reason has not lost its way Into the dreary desert sand of dead habit Where the mind is led forward by thee Into ever-widening thought and action Into that heaven of freedom, my Father, let my country awake.
CONTENTS
An appeal to Parliament Core value Executive summery Lokpal architechture Real outcomes Use cases 4 8 11 15 24 38
The citizens of India, in ever increasing numbers are demanding a tough anticorruption bill that will strike fear in the hearts of the corrupt and enable the honest to accelerate their good work and enables India to fulfill its potential and achieve its tryst with destiny. Some people feel that passing a strong anti-corruption law would be like writing a suicide note for those members of Parliament who may have been corrupt. Our objective is to eradicate corruption going forward and not to indulge in a witch-hunt. You will note that we have received suggestions of a voluntary disclosure scheme where, if a person returns ill-gotten gains, they would be immune from penalties and prosecution to the extent of the money returned. Whether you put provisions such as this in the bill is for you all to decide, but since we are one of the important voices of the people of India, we would like to make it clear that we recognize the constitutional role of the Parliament in making legislation and have no desire to usurp that in any way. We want to make the task of Parliamentarians easier and hope that this document that will be updated based on inputs from all sections of society will help the Parliament go down in history as one that managed to hear the voice of the people and pass a tough anti-corruption law, which laid the framework for a corruption-free India.
We have drafted a bill where we feel that no constitutional amendments will be required. Even if they are parliament has the authority to enact these. We hope that the Lokpal bill will be passed unanimously. We would also encourage parliamentarians to understand that people are not prepared to wait beyond August 15th for a tough anti-corruption law. The bill maybe 80% perfect and as long as there are provisions to modify the bill based on experience, then 80% is good enough. We thus feel that the parliamentarians have adequate time to debate this bill and go through all their processes in this monsoon session. Anna Hazare has been accused of holding a gun to the parliamentarians with his threat of fast unto death. It is our feeling that it is important to set reasonable deadlines otherwise debates can go on endlessly, while the common man continues to suffer. If the Parliamentarians feel that we are being unreasonable, they can always take their case to the common man and not the intellectual elite. There are some who argue that items such as electoral reforms or other types of reform must preceed a strong anti-corruption bill. Citizens are tired of excuses where successive parliaments have delayed passing this legislation for over 42 years. There will be issues that need careful thought and debate, but when so many citizens are willing to fast unto death and/or volunteer it is incumbent on our parliamentarians to burn the midnight oil and find a solution such that by August 15th,2012 India moves to a ranking of 40 or better from 87 on TI ( Transparency International) Country Corruption Perception Index.
Our volunteers are taking this document to the masses in all the major Indian Indian languages and English. We recognise that some parliamentarians may have concerns and / or arguements as to why they do not want to vote to support this bill. . We have Jan Lokpal bill volunteers in each of the Parliamentary constituencies who will be willing to enter into a public debate on the bill with those that need to be convinced to vote for the bill. We suggest the week of July 18th as a week in which these Parliamentary debates can be held. We are also requesting citizens to start contacting their MPs offices starting July 11th to see if their MP is supporting the bill and if they are not, when in the week of July 18th where they can understand the MPs viewpoints and communicate their viewpoints to the MP. This document should answer most of the questions that a parliamentarian may have. We have set up an email mp@indiaagainstcorruption.org where any MP can request a meeting with IAC representatives so that IAC can understand their concerns and also clarify any doubts that the MP may have. We would like to end this appeal on an emotional note. We all know that besides the scams that grab the headlines, there are many scams which hurt the poor by diverting funds meant for them. This in quite a few cases, may result in the death of the poor persons. You have a chance to prevent this.
1.
We are against all corruption and especially the corruption that affects the aam aadmi (common man) We are for a corruption free India and not against any government, institution, political party or individual
2.
3. We are all Anna. This is not Annas movement. It is our movement. Anna and other key faces are the flag bearers and help to focus and crystallize our message 4. We want India to move up from 87 to 40 or better on the country corruption list by August 15th, 2012 and a strong Lokpal/ Lokayukta Bill by August 15th, 2011 is an important milestone. We believe where there is a will there is a way 5. We believe in electoral democracy but believe that all public servants and institutions including parliament serve the people of India
6. We believe that a government which has the will can have a strong detterent to corruption which is executed in a manner where most corruption is prevented before it occurs, the corrupt face personal and financial ruin consistent with the magnitude of their crime and the honest have no fear and feel empowered to take India on a path that enables it to fulfill its tryst with destiny
7.
Any government , institution, political party or individual who supports a corruption free India is welcome to support us
8. Given our diversity we will and should have many diverse personal agenda and views. We do not support anyones personal agendas and are against extreme views 9. We believe that vested interests will try and do all that they can to prevent a corruption free India as they have for the past 42 years unless the people make their voice heard 10. Government, institutions, political parties or individuals may malign us but we will malign no one
Executive Summary
Page 11
Outcomes
To eradicate corruption without creating a super-cop, slowing down development and significantly increasing Government expenditure, we want to be able to achieve the outcomes listed below, using global best practices. Outcome #1 Creating an environment that will allow the Lokpal to succeed Catching petty corruption
Outcome #2
Outcome #3
Preventing petty corruption Preventing big ticket corruption Avoiding privacy invasion
Outcome #7 Accelerating projects instead of delaying them Outcome #8 No fear for the honest, high fear for the dishonest Outcome #9 Recovering ill gotten gains before Lokpal (BL) and punishing them Outcome #10 Monitoring the Lokpal to prevent abuse of power
Purpose:
The final architecture of the Lokpal is expected to change. The purpose of this first cut architecture is to 1.Help the MPs understand better how the Lokpal might work and include provisions to make it more effective and yet have safeguards. 2.To enable citizens to get a better understanding and enable them to provide suggestions in a much more concrete fashion.
Departments:
1. Operations 2. Corruption prevention 3.Community relations 4.Internal control
Operations:
Statutory duty Receive and consider allegations of corrupt practices Investigate and prosecute any alleged or suspected offences
Investigation:
The Department conducts all investigations in accordance with comprehensive procedures and every complaint is treated in the strictest confidence. It is an offence for anyone to warn a suspect directly and indirectly that he or she has come under investigation.
At the end of an investigation, if there is insufficient evidence for a prosecution, the case will be tabled before the Operations Review Committee which is the sole authority to terminate an investigation.
Rights of suspects:
If a person is arrested for suspected corruption and related offences, will the Lokpal inform his or her employer?
Prevention
Examine the practices and procedures of government departments and public bodies and secure revision of any that may be conducive to corruption. In discharging these duties, the Prevention Department works closely with the management of Government departments and acts as their consultants.
Strategy
Prevention is better than cure. Detailed examination of corruption-prone areas, timely advice, partnership with Government departments.
Operations
Prevention
Community
Control
Prosecution
Principal Investigator
Principal Prosecutor
Senior Prev- Senior Community Senior Control ention Officer Officer Officer Prevention Officer n.a. n.a. Control Officer Assistant Control Officer
Assistant Investigator
n.a.
n.a.
lokpal
Member Operation
HOD
Directors 6
Member Prevention
HOD
Directors 6
HOD Prosecution
Director Prosecution
Communication
Lokayukta Coordination
Lokpal requires prevention plan from every public unit in public domain by a dealline Plan not done Warning Plan not done Penalties on head department Plan done Plan revised by Prevention Officer and citizen. Plan okay Plan revision full plan okay
K e y S tr a t e g i e s Corruption exceeds Corruption within 1. Communication to all acceptable limits acceptable limits 2. Use of undercover aggents 3. Whistle-blowers Penalties on department Officers. 4. With approval wiretaps, Seviority increases as rank increases mystery shopping etc. to build strong case for court to punish
Real Outcomes
The Lokpal Bill will be useful only if it produces real outcomes. The goal by August 15th, 2012 is to make India rise to 40 or better from its current position of 87 on the Transparency International list. This document will be revised based on feedback. We have first listed the outcomes we seek and then will write separate notes on each outcome. Outcome #1 Creating an environment that will allow the Lokpal to succeed Outcome #2 Catching petty corruption Outcome #3 Catching big ticket corruption Outcome #4 Preventing petty corruption Outcome #5- Preventing big ticket corruption Outcome #6 Avoiding privacy invasion Outcome #7 Accelerating projects instead of delaying them Outcome #8 No fear for the honest, high fear for the dishonest Outcome #9 Recovering ill gotten gains before Lokpal (BL) and punishing them Outcome #10 Monitoring the Lokpal to prevent abuse of power
complaint will be made by an undercover person or a third party. To avoid frivolous complaints the penalty for making false statements to a Lokpal must be treated like perjury with severe penalties. Employees of the Lokpal must be protected against harm from the corrupt. In addition making a false statement to a Lokpal officer or obstructing them should have severe penalties
Outcome #5- Preventing big ticket corruption Some of the big ticket corruption stems from
Using discretionary powers to favour people Tweaking laws to aid corruption Not enforcing laws Loopholes in tax laws Bad contracting Delays accepted and outcomes not insisted on Scared and unaware beneficiaries No effective time bound deterrent No financial ruin or social stigma if caught
Developing a system where a citizen can easily become aware of schemes and public servants that affect them is important and using current technology not that hard to do. It then becomes easy for citizens to become the eyes and ears of Lokpal and acts as a powerful detterent. For all large contracts there should be a requirement that prior to the contract being awarded the winning bid should be put up in the public domain and within 30 days written complaints should be filed with the Lokpal with a high fee. Lokpal will act as a mediator and within 30 days the contract should be awarded. After award if the vendor does not deliver in time and as per specifications penalties must be enforced. An automated system can be set up to track this with citizen monitoring. Public servants who do not collect penalties due must face fines and/or jail time depending on the magnitude of the offence. A system for surveillance where anyone with a voter ID or a tax ID can say whether a public servant is corrupt anonymously is required. People may not have hard evidence or maybe too scared to make formal complaints. If the complaints exceed a threshold then the Lokpal can mount an investigation or set a trap.
Outcome #8 No fear for the honest, high fear for the dishonest
This has to be a key design goal for the bill and must almost be like the motto for the Lokpal. Just as we have Satyameva Jayate we need a catchy motto for Lokpal that encapsulates the above. Designing systems which catch the corrupt and do not place a burden on the honest is not that hard. Most countries use surveillance systems to catch spies and terrorists without inconveniencing the common man. Ocassionally the system make mistakes or is abused and an innocent person suffers. In well designed systems such cases are taken very seriously and the system improves. In the private sector in retail stores employ sophisticated systems to catch shoplifters. In the developed world most people know that if you shoplift you are likely to get caught. There are losses but they are at acceptable levels. Similarly in credit card systems fraud is kept at acceptable levels through a variety of techniques. Thus this design goal of striking fear in the corrupt and minimizing pain for the honest is eminently achievable. India can learn a lot from other countries and does not have to reinvent the wheel. Lokpal will have many Indians and Indian diaspora willing to help it as volunteers so just as the NSE is one of the better exchanges in the world there is no reason to believe that the Lokpal cannot be one of the best designed where the corrupt will quake in their shoes and say Child drink your milk or the Lokpal will come and the honest will be able to hold their head high as in the poem by Rabindranath Tagore.
Outcome #9 Recovering ill gotten gains before Lokpal (BL) and punishing them
Even after the Lokpal Bill is passed recovering past ill gotten gains will require a well thought out strategy 1. Implementing a VDS ( Voluntary Disclosure Scheme) where the identity is protected ( maybe international agency is involved) and the person that discloses is protected from jail time or penalties upto the amount disclosed and returned, should be strongly considered because it will reduce the burden on the Lokpal and also let the Lokpal know the methods and channels used 2. If the past corrupt fear that because whistleblowers now have protection and the independent Lokpal cannot be influenced and will use best practices for recovery then a lot of them will be tempted to come clean. 3. For those who do not disclose it will encourage the courts to give them a harsher sentence as they knowingly chose not to use VDS. 4. Since beneficial ownership of money or assets overseas is not permitted except upto the limits allowed by RBI any money or assets found overseas must be summarily confiscated, penalties levied and jail time should result. 5. With international cooperation catching the corrupt will require diligent work but will be possible as there will be a few major ways in which corruption money can be moved or laundered.
The bottom line is that it is quite likely that a VDS will work very well if the corrupt are convinced that for them it is the most prudent course of action. Given the scale of corruption the corrupt will be able to handle the best lawyers so it is very important that for major prosecutions the Lokpal can handle the best legal talent available and they should be allowed to work on a contingency basis. Like in CBDT a small % of the tax collected over target is used to give incentives to officers. To attract the best talent a similar or more generous scheme should be implemented for Lokpal employees. The Lokpal and the members should not be part of this incentive scheme.
There are two other important concerns 1. 2. tas To prevent corruption within the Lokpal the working should be transparent as far as possible and there should be an internal control unit that audits the working of the Lokpal. This unit should report to the Lokpal so that it can investigate anyone except the Lokpal. For complaints against the Lokpal the Supreme court should be the monitoring agency. To prevent personal vendettas a person being investigated should be able to approach the internal control unit or the judiciary with their side of the argument and the harassment can stop and disciplinary action taken if the complaint is upheld. A person who is being investigated must have rights which include asking the investigators to explain in writing why they need information and in case the information is difficult to obtain then all attempts must be made to use secondary sources of information. The investigation must be done in a professional manner with minimal inconvenience as long as the person under investigation cooperates. The person should be able to retain counsel. In case the current methods used by CBI, ED or income tax do not protect the rights of the person being investigated these need to be examined and international best practices used. At the same time the burden of proof should not be so high that a clever corrupt person gets away scott free. Lokpal , members and/or employees could be corrupt Lokpal, Members and/or employees could pursue personal vendet-
Use Cases
The purpose of the use cases is to illustrate how the Lokpal Bill will help in producing real outcomes. Some of the assumptions about the Lokpal Bill may not be correct but they should help Parliament think about how the bill should be drafted to make real outcomes happen. As the LokPal classifies cases and learns it will get better and better at prevention.
Before Lokpal
After Lokpal
Case Facts
A drivers son is going around with a minor girl. The girls father wants to file an FIR. The policeman takes Girls father was able to file Rs 2000 to file an FIR. The two fa- FIR without bribe. Policeman thers settle and withdraw the FIR. encouraged settlement and FIR was closed without a bribe The policeman now takes a bribe from the driver of Rs 5000 to withdraw the FIR
Police Bribery
Police Bribery
Corruption is a way of life. Chances of getting caught are almost zero and even if it happens nothing much will happen. Taking Bribes is a low risk high reward activity
Policemen were told that there are undercover people and if they take a bribe from them loss of job, jail time and fines are certain. In addition bribe payers can now report to Lokpal so risking ones job is a high risk activity Policemen caught for bribery lost their jobs, were put in jail, fined, faced social stigma
Examples of Quick and Severe punish- Almost none for police bribery ment to the corrupt
After Lokpal
CWG type projects get done before schedule and cost much less
Large Projects
Large Projects
Citizens, Institution monitor along with Corruption prevention team from Lokpal. Best companies bid. Work gets done faster and cheaper
Mindset
The pressure on execuVery few. Most projects tion on time and with are delayed and shoddy. quality is intense. Honest Life goes on people have no fear but the dishonest are getting fined and jailed.
Before Lokpal
After Lokpal
Case Facts
A law requiring refiners to add colour to kerosene to prevent it being used for petrol adul- Mafia and industry lobbies teration is removed. Oil Mafia find it more and more difis created. Official loses life try- ficult to get laws changed in their favour ing to battle mafia. Payoff from oil refiners and mafia to get law changed
Law Change
We are here for a short time. This is complex. Most people will not understand. Those who do will be drowned out. Later if there is a scandal the powerful will protect us. Public memory is short. None till the 2G scam
Law Change
If a law is changed or introduced that will cause corruption citizens and institutions can go to the Lokpal. This acts as a detterent Lokpal will pursue complaints and the guilty will get punished unless they have taken advantage of the VDS scheme and gained immunity
Before Lokpal
People selling and buying property routinely have a large black money component. Law exists for IT to acquire the property but it is not enforced because the politicians do not want it enforced and/or IT department finds it too cumbersome
After Lokpal
Case facts
Law is strictly enforced and black money in real estate has dried up
Case Class
Law Change
The prevention department of Lokpal is after us to implement the law. We have used technology to make implementation easy
Mindset
No one will pester us if we do not implement the law. If we do implement we will most certainly be transferred. Why risk this?
Examples of Quick and Severe None as acts of omission punishment to are not punished the corrupt
Acts of omission are being punished so public servants are pulling up their socks
Fund Diversion
Before Lokpal
Funds meant to set up youth clubs in rural areas sanctioned by the sports ministry are diverted. 175000 youth clubs are not set up
After Lokpal
Funds meant to set up youth clubs in rural areas sanctioned by the sports ministry are diverted. 175000 youth clubs are not set up
Case facts
Case Class
Law Change
Scheme will be in public domain and if the youth club does not get money they will complain and we will be caught while in office
Mindset