CAMPAIGN AGAINST CWG CORRUPTION

CAMPAIGN AGAINST CWG CORRUPTION – LETTER TO PRIME MINISTER

Dear Dr Manmohan Singh,

The scale and arrogance of corruption in Commonwealth Games is shocking. Unfortunately, government’s reaction to it is even more shocking. Before the games, you and Mrs Gandhi made strong statements that no one will be spared. But what is going on in the name of enquiries and investigations is hardly encouraging – in fact, it is a mere eyewash!

Before coming to the irrelevance of the Shunglu committee appointed by you recently, let us first look at the state of enquiries which are underway at the moment:

1. Central Vigilance Commission: The CVC is looking into just about 18 contracts or so, as against thousands of contracts and much bigger ones that have not been touched so far.
2. Central Bureau of Investigation: CBI is also believed to be looking only at a handful of contracts relating to Queen’s Baton controversy. With the range of politicians facing allegations, CBI can be least entrusted to do an honest investigation, as it is directly under the government and takes its orders from the same set of politicians.
3. Enforcement Directorate: ED is looking into only foreign exchange related matters like controversies surrounding Queen’s baton etc.
4. Comptroller and Auditor General of India: One is not sure of the ambit of CAG’s enquiries but both CAG and CVC do not have the jurisdiction and powers to peep into the role of politicians.

So, effectively politicians are out of all ongoing enquiries and it is believed that most of the money has finally landed with the politicians.

So, you decided to set up the Shunglu committee. But the prescription seems to be worse than the disease. Shunglu committee neither has powers nor jurisdiction to conduct the most basic enquiries. Forget politicians, it does not even have the powers to call for records from an ordinary clerk. Suppose it calls for records from a particular department and that department refuses to comply. What powers does Shunglu committee have to enforce its directions? Does it have powers to summon officers, politicians or contractors to question them or record their statements? Agencies like CVC and CAG draw their powers under various laws. Yet, they find it so difficult to get their orders implemented from obdurate and corrupt government machinery. CVC has repeatedly said that the government departments do not respond to its queries. How would Shunglu committee get its orders implemented? It would be foolhardy to believe that the bureaucracy would oblige just because Shunglu has been appointed by the Prime Minister.

Who will bell the cat?

Money made in Commonwealth Games is believed to have allegedly travelled right upto the powers-that-be. Neither CVC nor CAG nor even Shunglu committee have either the mandate or the powers to question Sheila Dikshit or Kalmadi or any other politician or to raid them. The money is alleged to have travelled even beyond. All these agencies will merely be concentrating on tenders and papers and questioning middle level officers who were merely conduits and doing the bidding of their political masters.

In any investigation, time is of essence. Else precious evidence is lost. By the time Shunglu committee submits its report, most evidence would have been wiped out.

We do not understand what is the need for Shunglu committee? When there are already prima facie discrepancies in so many contracts, why can’t the government straight away register cases under Prevention of Corruption Act and Indian Penal Code rather than setting up more committees?

Massive corruption in Commonwealth Games and 2G spectrum has raised the issue of corruption to a pitch as it never happened before. The government is under pressure. That is the reason it is trying to silence media through the appointment of Shunglu committee.

However, rather be fooled by these steps, it is time to call spade a spade.

Not a single effective anti-corruption agency in our country:

A look at all anti-corruption laws and agencies indicate that there is not a single effective anti-corrupion agency in our country. The present anti-corruption laws and systems in our country suffer from internal contradictions. There are plethora of anti-corruption agencies. In each of these agencies, the government has deliberately left some critical loophole so as to make it ineffective. For instance, CVC is an independent body but does not have powers to take any action. It is merely an advisory body. Plus, it does not have jurisdiction over politicians. CBI has the powers but is not independent. It is directly controlled by the government. Also, CBI needs government’s permission to initiate investigations and to launch prosecution in any case. So, one agency has the powers but is not independent. The other agency is independent but does not have the powers.

Lokpal Bill to come up, is also impotent:

Government has announced setting up of yet another agency called Lokpal by December. Again, the government is doing lip service. According to government’s proposal, Lokpal would have jurisdiction over politicians but not bureaucrats, as if politicians and bureaucrats indulge in corruption separately. So, almost every case will need to be investigated by both CVC and Lokpal – CVC will look into the role of bureaucrats and Lokpal will look into the role of politicians. Doesn’t it sound absurd? The obvious question is why can’t the same agency investigate both? And the most interesting part is that even the Lokpal is being made an advisory body! It would merely recommend to the government to initiate prosecution against, say some of its ministers. Do you think the government would ever do that?

We therefore, demand the following action from the government immediately:

Take immediate steps to protect the evidence:

1. Suresh Kalmadi and his team of officers should be immediately suspended. We are sure that they would have already tampered with most of the evidence. But before they do any further damage, they should be suspended. The first thing that any investigating agency would do is to prevent all accused access to critical evidence. Rather than doing that, Kalmadi and his team have been asked to continue for the next three months. This is likely to give them sufficient time to wipe out all evidence!
2. Delhi Government is believed to have handled around Rs 19,000 crores against Rs 2000 crores handled by Kalmadi. Some central government ministries including urban development ministry, sports ministry etc are believed to have dealt with roughly Rs 8000 crores. According to preliminary enquiries done by CVC and CAG, each of the contract enquired into suffers from serious deficiencies of either straight defalcation or time over runs or highly inflated estimates or shoddy work. Corruption of this scale could not have taken place without active collusion of the people at all levels right from top to bottom. Therefore, to begin with, the ministers of all these ministries in Delhi Government and central government, which dealt with commonwealth games money and are suspect, should be immediately asked to step down. Key officials in these ministries should be suspended. Else they would wipe out all evidence.
3. Let all these people join back if they come clean after enquiries.
4. Let the government immediately seize all the relevant records, before they are further tampered.

Create effective machinery to do honest and effective investigations and hand over these cases to them:

1. A meeting of eminent people took place in August 2010. It was attended by some very senior people who have been connected with administering anti-corruption systems in our country like Justice Santosh Hegde (Lokayukta of Karnataka), Mr P Shankar (former CVC), Mr Pratyush Sinha (former CVC) and Mr J M Lyngdoh (former Chief Election Commissioner). The meeting discussed the deficiencies in our present anti-corruption set up and what needs to be done. They all concurred that all the anti-corruption agencies should be merged into one agency, say Lokpal, which should have the following ingredients:
1. It should be completely independent of the government.
2. It should have jurisdiction over both politicians and bureaucrats.
3. It should have the power to initiate investigations and prosecution in any case without needing any approvals or permissions.
4. The appointments to Lokpal should be transparent and participatory.
5. The functioning of Lokpal should be completely transparent and accountable to prevent it from becoming a hub of corruption itself.

Though a copy of the minutes of this meeting has already been sent to you earlier, we are again attaching the minutes for your ready perusal.

We demand that a Lokpal on the suggested lines should be immediately set up through an ordinance and the investigations into Commonwealth Games and 2G spectrum should be handed over to them as their first cases. Unless investigations were done by such an independent and empowered body, all efforts of the government would be suspect.

Corruption in Commonwealth Games is the last straw. If this also goes unpunished, then there is no hope for this country. Therefore, if the government does not take concrete action as suggested above within a week, we shall be left with no option but to take all possible steps within our command to initiate a nationwide agitation against corruption.

Warm regards

Yours sincerely

Minutes of Meeting

The following met at IIC on 10th August 2010 from 2 pm to 6 pm to discuss the deficiencies in present anti-corruption systems in our country and what steps need to be taken to address these deficiencies.

1. Justice Santosh Hegde, Karnataka Lokayukta
2. Mr J M Lyngdoh, former Chief Election Commissioner
3. Mr P Shankar, former Central Vigilance Commissioner
4. Prashant Bhushan, Advocate, Supreme Court
5. Mr Kamal Jaswal, Director Common Cause
6. Mr Shekhar Singh, Eminent social activist
7. Mr Nikhil Dey, Mazdoor Kisan Shakti Sangthan
8. Mr Arvind Kejriwal, Social activist
9. Mr Sarvesh Sharma, Common Cause
10. Mr Suhas Borkar, social activist and media personality

Mr Pratyush Sinha, present Central Vigilance Commissioner, attended the meeting for sometime, more as an observer.



Deficiencies in the present anti-corruption systems



Central Government level:

At central Government level, we have Central Vigilance Commission, Departmental vigilance and CBI. CVC and Departmental vigilance deal with vigilance (disciplinary proceedings) aspect of a corruption case and CBI deals with criminal aspect of that case.

Central Vigilance Commission: CVC is the apex body for all vigilance cases in Government of India.

* However, it does not have adequate resources commensurate with the large number of complaints that it receives. CVC is a very small set up with a staff strength less than 200. It is supposed to check corruption in more than 1500 central government departments and ministries, some of them being as big as Central Excise, Railways, Income Tax etc. Therefore, it has to depend on the vigilance wings of respective departments and forwards most of the complaints for inquiry and report to them. While it monitors the progress of these complaints, there is delay and the complainants are often disturbed by this. It directly enquires into a few complaints on its own, especially when it suspects motivated delays or where senior officials could be implicated. But given the constraintf of manpower such number is really small.
* CVC is merely an advisory body. Central Government Departments seek CVC’s advice on various corruption cases. However, they are free to accept or reject CVC’s advice. Even in those cases, which are directly enquired into by the CVC, it can only advise government. CVC mentions these cases of non-acceptance in its monthly reports and the Annual Report to Parliament. But these are not much in focus in Parliamentary debates or by the media.
* CVC cannot direct CBI to initiate enquiries against any officer of the level of Joint Secretary and above on its own. The CBI has to seek the permission of that department, which obviously would not be granted if the senior officers of that department are involved and they could delay the case or see to it that permission would not be granted.
* CVC does not have powers to register criminal case. It deals only with vigilance or disciplinary matters.
* It does not have powers over politicians. If there is an involvement of a politician in any case, CVC could at best bring it to the notice of the Government. There are several cases of serious corruption in which officials and political executive are involved together.
* It does not have any direct powers over departmental vigilance wings. Often it is seen that CVC forwards a complaint to a department and then keeps sending reminders to them to enquire and send report. Many a times, the departments just do not comply. CVC does not have any really effective powers over them to seek compliance of its orders.
* CVC does not have administrative control over officials in vigilance wings of various central government departments to which it forwards corruption complaints. Though the government does consult CVC before appointing the Chief Vigilance Officers of various departments, however, the final decision lies with the government. Also, the officials below CVO are appointed/transferred by that department only. Only in exceptional cases , if the CVO chooses to bring it to the notice of CVC, CVC could bring pressure on the Department to revoke orders but again such recommendations are not binding.
* Appointments to CVC are directly under the control of ruling political party , though the leader of the Opposition is a member of the Committee to select CVC and VCs. But the Committee only considers names put up before it and that is decided by the Government. The appointments are opaque.
* CVC Act gives supervisory powers to CVC over CBI. However, these supervisory powers have remained ineffective. CVC does not have the power to call for any file from CBI or to direct them to do any case in a particular manner. Besides, CBI is under administrative control of DOPT rather than CVC.
* Therefore, though CVC is relatively independent in its functioning, it neither has resources nor powers to enquire and take action on complaints of corruption in a manner that meets the expectations of people.



Departmental Vigilance Wings: Each Department has a vigilance wing, which is manned by officials from the same department (barring a few which have an outsider as Chief Vigilance Officer. However, all the officers under him belong to the same department).

* Since the officers in the vigilance wing of a department are from the same department and they can be posted to any position in that department anytime, it is practically impossible for them to be independent and objective while inquiring into complaints against their colleagues and seniors. If a complaint is received against a senior officer, it is impossible to enquire into that complaint because an officer who is in vigilance today might get posted under that senior officer some time in future.
* In some departments, especially in the Ministries , some officials double up as vigilance officials. It means that an existing official is given additional duty of vigilance also. So, if some citizen complaints against that officer, the complaint is expected to be enquired into by the same officer. Even if someone complaints against that officer to the CVC or to the Head of that Department or to any other authority, the complaint is forwarded by all these agencies and it finally lands up in his own lap to enquire against himself. Even if he recuses himself from such inquiries , still they have to be handled by those who otherwise report to him. There are indeed examples of such absurdity.
* There have been instances of the officials posted in vigilance wing by that department having had a very corrupt past. While in vigilance, they try to scuttle all cases against themselves. They also turn vigilance wing into a hub of corruption, where cases are closed for consideration.
* Departmental vigilance does not investigate into criminal aspect of any case. It does not have the powers to register an FIR.
* They also do not have any powers against politicians.
* Since the vigilance wing is directly under the control of the Head of that Department, it is practically impossible for them to enquire against senior officials of that department.
* Therefore, , the vigilance wing of any department is seen to softpedal on genuine complaints or used to enquire against ” inconvenient” officers.



CBI: CBI has powers of a police station to investigate and register FIR. It can investigate any case related to a Central Government department on its own or any case referred to it by any state government or any court.

* CBI is overburdened and does not accept cases even where amount of defalcation is alleged to be around Rs 1 crore.
* CBI is directly under the administrative control of Central Government.
* So, if a complaint pertains to any minister or politician who is part of a ruling coalition or a bureaucrat who is close to them, CBI’s credibility has suffered and there is increasing public perception that it cannot do a fair investigation and that it is influenced to to scuttle these cases.
* Again, because CBI is directly under the control of Central Government, CBI is perceived to have been often used to settle scores against inconvenient politicians.

Therefore, if a citizen wants to make a complaint about corruption by a politician or an official in the Central Government, there isn’t a single anti-corruption agency which is effective and independent of the government, whose wrongdoings are sought to be investigated. CBI has powers but it is not independent. CVC is independent but it does not have sufficient powers or resources.

At State level:

The position if anything is worse in the States. All vigilance agencies (like state vigilance department, departmental vigilance wings) and anti-corruption agencies (like anti-corruption department of state police, CID etc) are directly under the control of state government and therefore, ineffective in fairly investigating corruption cases against their political bosses. In some states, we have the institution of Lokayuktas.

Lokayuktas:

* Lokayuktas cannot initiate investigations on their own. They have to seek permission of state government to investigate cases involving officials above certain levels.
* In some states, vigilance department has been given powers over bureaucrats and Lokayuktas have been given powers only over politicians. Such division of jurisdiction hampers investigations. So, in a case involving both politician and bureaucrats (which is the case most of the times), both Lokayukta and the vigilance department feel handicapped.
* Lokayuktas merely have advisory roles. They do not have the powers to directly initiate prosecution. They make recommendations to the government, which may or may not agree with those recommendations.
* They also do not have adequate resources to investigate the large number of complaints that they receive.
* Lokayukta is appointed by the state government in an non-transparent and arbitrary manner. In some states, their independence has been seriously eroded.

Therefore, there isn’t any effective anti-corruption agency either at the centre or at state level, which is independent of political executive and which has the powers and resources to entertain and investigate any complaint of corruption and then prosecute the guilty people.



Recommendations:



1.
1. Central Government should immediately pass a strong and effective Lokpal Bill on the following lines. Those states, which already have Lokayukta Acts, should amend their Lokayukta Acts on the following lines. Those states, which do not have Lokayukta Acts, should pass Lokayukta Acts on the following lines.
2. Lokpal at the Centre and Lokayukta at state level should be made the single apex, independent and effective anti-corruption agency.
3. Lokpal/Lokayukta should be a multi-member body. It could have members from judiciary, legal backgrounds, administrative backgrounds, social activists etc. The Chairman of Lokayukta/Lokpal need not be a person from judiciary only.
4. All vigilance agencies should be brought directly under their control. In states, state vigilance departments and departmental vigilance wings should be merged with Lokayukta. This was done in Karnataka. State vigilance department was merged in Lokayukta when Karnatak Lokayukta was created in 1984.
5. At Centre, CVC should be placed under the superintendence of the Lokpal. All departmental vigilance wings should be placed directly and completely (including administrative control) under the control of CVC. These departmental vigilance wings would continue working from the offices and places from where they are working presently. However, CVC would ensure that the officials get rotated between different departments, so that an official does not enquire against officers of his own parent department. CVC would then be able to seek compliance of its directions from these departmental vigilance wings. There would hence, be no need to create new posts or incur any extra expenditure.
6. At state level, the anti-corruption departments of state police and that portion of CID which deals with corruption cases, should be completely (both administratively and functionally) transferred to Lokayukta. Likewise at Central level, that part of CBI, which deals with corruption cases, should be completely (both administratively and functionally) transferred to Lokpal.
7. Lokayukta and Lokpal would have jurisdiction over both politicians and bureaucrats. The vigilance wing under Lokayukta and CVC under Lokpal would deal with vigilance aspect of any case. The anti-corruption wing under Lokayukta or that portion of CBI which has been transferred to Lokpal, would deal with criminal aspect of any corruption case. Offices of Lokpal/Lokayukta would be declared as police stations to enable them to register cases.
8. Lokayukta/Lokpal should have complete autonomy:
* This should include financial autonomy. Their fund requirements should be charged to the Consolidated Fund of India in case of Lokpal and to the Consolidated Fund of respective state in the case of Lokayukta.
* They should have complete autonomy to select their own staff, even if it needs to be employed from outside.
9. Once enquiry (in vigilance cases) or investigations (in criminal cases) are over in any case, the same shall be presented before the entire Lokayukta/Lokpal. After hearing the matter and after hearing the complainant and the accused, the Lokayukta/Lokpal may decide to either impose penalty (in vigilance cases) or proceed with prosecution (in criminal cases) or drop the case on lack of merits or direct further investigations/enquiry. Lokayukta shall not need to seek any sanction for prosecution from anyone. Wherever it is needed, it shall be deemed to have been granted, once it has been granted by Lokayukta/Lokpal.
10. Advice of Lokpal/Lokayukta shall be binding on the government on vigilance matters. In criminal cases, Lokayukta/Lokpal will directly initiate prosecution.
11. For legal purposes, Lokpal/Lokayukta would need to be declared as police officers under section 36 of the Cr.P.C.
12. All records related to a case shall be public after enquiry/investigation is complete.
13. All complaints filed in Lokpal/Lokayukta will have to be compulsorily enquired/investigated, preferably in a time bound manner.
14. Lokpal/Lokayukta should have the following powers:
* They should have the powers of a civil court to summon any officers and documents.
* They should also have the powers of search and seizure.
* They should also have the powers to ensure compliance of their orders. This could include financial penalties also.
* If corruption is going on in some case while investigations are on, Lokayukta/Lokpal shall have the powers to issue interim orders to stop or alter any government activity to ensure that corruption is stopped forthwith. Their orders shall be binding.
15. Lokpal should be selected in the following manner:
* A search and screening committee consisting of the following members should be made. This committee could be formed through either of the following two methods:
1. The committee could consist of five members. One member could be suggested by collegium of the five seniormost Chief Justices of all High Courts. One member could be suggested by five seniormost Lokayuktas. One member could be suggested by a committee of Leaders of Opposition and Chairpersons of the two Houses of Parliament. Likewise, we can think of some more collegiums to select two more members. After a few years, one member could be suggested by a group of all predecessors of Lokpal.

ORThe Committee could consist of fifteen members which are heads of certain institutions and individuals holding certain positions who shall be treated as ex-officio members of this committee like Directors of say two IITs, Directors of two IIMs, Editors of two national Dailies, President of Supreme Court Bar Association, Presidents of some professional bodies etc.

1.
1.
* Appropriate criteria shall be made for screening and shortlisting candidates.
* The candidates would be subjected to public hearings on the lines of confirmation hearings in US, though these hearings will be for selection and not confirmation.
* On the basis of the above procedures, the Screening Committee shall recommend two times the names as there are vacancies to the Selection Committee, which will consist of Prime Minister, Leader of Opposition and Chief Justice of India.
* The Selection Committee will recommend such number of names as there are vacancies to the President for final appointment.
2. Lokayukta of a state shall also be selected similarly.
3. Whistleblower protection: Ordinarily, it shall be the duty of the police to take adequate steps to provide protection to those who complain of threats due to their blowing whistle against corruption. However, if someone is dissatisfied with the steps taken by police, then Lokayukta/Lokpal would be empowered to issue appropriate directions to the police. Lokayukta should have adequate powers to get their orders implemented from police. It was felt that in most of these cases, the identity of the whistleblower is ordinarily known. Therefore, the best deterrent against threats to whistleblowers would be, if the issues raised by them are thoroughly investigated and put on fast track so that a message goes to the corrupt that if they threaten anyone, their cases would become high priority for Lokayukta/Lokpal.
4. It would be desirable if the Government of India provides for the institution of Lokayukta and Lokpal through an amendment to the constitution on the above lines.

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