Jantar Mantar is the flavour of the month. SMS messages, Blackberry Messenger broadcasts and e-mail forwards have been exhorting a mass turnout. The nation has never been more self-righteous in post-Emergency India. At the time of going to press, social activist Anna Hazare had declared victory for his hunger strike, on the basis of the government having agreed to constitute a committee to adopt the Lok Pal Bill – a draft law that would create a super-powered body to oversee probity in Indian public life.
With no disrespect to Anna Hazare or the anti-corruption cause, it is hard to not notice that the nation is truly living a Peepli Live moment – the Hindi movie on how an unwilling farmer’s protest by fasting cynically grabs the nation’s attention without the issue of starvation death really getting addressed in any meaningful manner.
The Lok Pal Bill has some disastrous simplistic provisions that need serious repair. It is incapable of being implemented within the framework of the Indian Constitution. The mass movement sparked by Anna Hazare’s hunger fast cannot be anything more than a welcome tool to raise national consciousness about the issue of corruption.
The Lok Pal Bill has some serious risk of the polity becoming a prisoner to a few bad men, if they manage to capture the all-powerful be-all-end-all “do-gooding” office. Yet, it is easy for an uninformed mass movement to capture the imagination of society. One does not really need to read the Lok Pal Bill for forwarding SMS and e-mail messages about the need to gather at Jantar Mantar. Even corporate India, not to be out-done, has announced its solidarity with the cause – its line is that it is a poor victim of corrupt harassment rather than the segment of society that courts and seduces the corrupt in government.
Expect no major iconoclastic victory. Expect only the birth of another icon. The Lok Pal Bill, when cleaned up, cannot read much different in substance than the existing laws governing prevention of corruption and the office of the chief vigilance commissioner.
Interestingly, the Lok Pal Bill is not the only anti-corruption law that Parliament will have to consider. Virtually fearful of embarrassment for what it has on its hands with corruption within India, the government underplayed that it had tabled another Bill in the Lok Sabha to deal with corruption by Indians, outside India. The Prevention of Bribery of Foreign Public Officials and Officials of Public International Organisations Act, 2011, if passed, would criminalize acts of corruption outside India, committed by Indian residents and citizens.
Corruption of persons who hold “a legislative, executive, administrative or judicial office of a foreign country”, or one who exercises “a public function” abroad, or officials of international agencies would stand criminalized. Indeed, India has had its share of allegations against ministers and their relatives making money in the oil-for-food scam in Iraq, which would be covered by such law. The penalty involves imprisonment of at least six months and fine, and the period in jail can extend up to seven years. Akin to the stringent Prevention of Corruption Act in India, attempting to bribe or aiding a bribe is also punishable with equal vigour.
Tabling this Bill is but discharge of India’s obligation under the United Nations convention on corruption. India could extradite persons accused of such corruption, and can demand extradition of persons in other jurisdictions for trial in India. The timing could not have been starker. When this Bill was tabled at the end of March, little would the government have sensed that a movement against our domestic anti-corruption record could gather significant momentum in April.
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For Indian society and the chatterrati, the policy has always been “show me an issue and I will write you a law”. The real issue is not the want of a new law. It is about under-enforcement and poor administration of India’s existing stringent anti-corruption laws.
The debate in the United Kingdom over her offshore corruption law and the level of detail in which guidance has been issued by UK’s enforcement agencies are lessons to be learnt and replicated. There is little point in claiming victory by pushing for newer laws. To attain real victory, one would need to achieve clarity and predictability of a nature that truly cuts at the root of corruption.
(The author is a partner of JSA, Advocates & Solicitors. The views expressed herein are his own. somasekhar@jsalaw.com)