LAST year we tracked the progress of inquiries against bureaucrats from the All India Services, primarily the Indian Administrative Service (IAS) and the Indian Police Service (IPS), who faced corruption charges. Using the Right To Information Act, we filed applications with the Central Bureau of Investigation, the Central Vigilance Commission, the vigilance bureaus in several states, as well as the Department of Administrative Reforms and Public Grievances to ascertain the progress in implementing the recommendations made by the Administrative Reforms Commission for good governance.

A month later, a fascinating picture emerged from the responses received. There were scores of IAS and IPS officials who were not only under investigation, but had been charge-sheeted by the investigating agency. So, were the bureaucrats suspended from service, pending prosecution, or arrested? Were they languishing in ignominy, posted to a position where they had no or little scope to indulge in further acts of corruption?

Hardly. As the over 80 replies received under RTI during that period made clear, a majority of the bureaucrats continued in service and none of them were arrested, even briefly. In fact, many of them occupied plum posts and continued to enjoy the confidence of their political masters.

One IAS bureaucrat from U.P. had been investigated by the police for having made money early on in his career. But over the years as the inquiry progressed, he continued to receive his promotions on schedule and, at the time of this study, was the Home Secretary of the state, lording over the same police officers who had probably conducted the inquiry against him all those years ago.

Another bureaucrat found guilty of making money had been immediately shifted to another lucrative post as the chairman of a state authority, only to be caught for a second time with his hands in the till. He was then posted out and sent to yet a third lucrative post, only to be caught again. Finally, he was suspended though with full salary and other service benefits. His case has not even seen the beginning of a trial, let alone imposition of a penalty or imprisonment.

 

The systematic subversion of the investigative processes in India has ensured that the agencies set up to tackle corruption are either toothless or at best, inefficient. As a result, corruption has become endemic to governance and the lack of a minimal deterrence ensures that the corrupt thrive while the honest get weeded out of the system.

Therefore, when the debate on the Lokpal bill began in earnest in April this year, it was viewed as succour for India’s ordinary citizen who for years have borne the brunt of subverted and corrupt governance in their daily lives. But beyond the euphoria and the hope that the Lokpal seems to generate, lies a far deeper malaise that seems to have got lost in the din that dominates the current discourse on the proposed bill.

It is a fact that institutions in India rarely work. They are quickly made dysfunctional and allowed to rot so that the corrupt can continue to subvert the system to serve their end. Democracy, that has been the foundation of India’s partial success as an emerging nation, continues to be more electoral rather than participatory, which perhaps was the vision of the authors of the Constitution.

Many years ago, when two young reporters began an investigation into a burglary in a hotel in Washington D.C., few Americans knew that this would become the greatest political scandal in its history. In the months that preceded the resignation of President Richard M. Nixon, the doggedness of the two reporters from the venerable Washington Post – Bob Woodward and Carl Bernstein – became a modern-day legend. Watergate became an adjective, henceforth used to describe all political scandals, and the movie that followed soon after, ensured that glamour would be an essential ingredient in this singular episode.

But lost in the glamour and the din was the role that was played by a little-known organization called the Government Accountability Office (GAO) and the prosecution lawyers appointed by the Department of Justice. The GAO actively pursued the case, reporting to the U.S. Congress and using its support to continue with an aggressive investigation. Similarly, the prosecution lawyers at the Department of Justice began their work in earnest and, despite pressure from the Nixon administration, did not give up the chase. At some point many of them even threatened to turn in their papers, forcing the administration to back-off.

 

The Watergate scandal and its eventual fallout highlights several key lessons about how to deal with corruption in high places. It clearly established the criticality of the rule of law and the need to ensure the separation of the political class from the administration. It is, however, possible that the investigation/prosecution process worked because the United States follows a Presidential form of government that may or may not be replicable in India’s parliamentary system.

But it also pointed to several cultural phenomena that are revealing. It established that there was an effort on the part of professionals to just do their job. They concentrated on efficacy rather than the politics of the moment. In fact, most of the principal players in this historic episode – the journalists, the prosecutors, the investigators and judges – were all backed by progressive and dynamic laws and statues that aided and protected them throughout the process. For instance, the journalists were covered by the First Amendment to the U.S. Constitution that not only guarantees the freedom of the press, but also prevents the legislature, judiciary and the executive from passing any law or taking any decision that might curb this freedom. (Just a few years earlier the validity of the First Amendment had been upheld by the U.S. Supreme Court in the landmark Pentagon Papers case).

 

Similarly, the GAO’s investigators were armed with constitutional provisions and had the might of the U.S. Congress backing them. Unsurprisingly, as elements of the case began to end up in court, the prosecutors went into action and finally, once it became imminent that President Nixon’s tapes recording every conversation in the White House could be subpoenaed by the courts, he gave up and resigned.

The Watergate scandal, or rather its handling, established the efficacy of the rule of law in the U.S., though it would not be the last such episode. On 9 December 2008, Rod R. Blagojevich, the Governor of Illinois was arrested on federal corruption charges, including conspiracy to commit mail and wire fraud and solicitation of bribery. A month later, the Illinois House of Representatives impeached him for corruption and misconduct. This was the first time that a Governor had faced such an action; he was banned for life from holding public office in the state. The message was quite clear. No matter how big or powerful the office, when it came to the rule of law and the sanctity of an efficient and corruption-free government, there would be no compromises.

Therefore, when we debate the efficacy of our anti-corruption regimes we forget to add some critical elements to the public discourse. We continue to profess great faith in institutions even though our experience has been that every one of them has been badly compromised. Efficacy is no longer a key consideration in any realm of governance, thus making it a free-for-all.

 

Let us look at the CBI as an institution. Hobbled by a mixed bag of recruitment policies, a lethargic judicial system and rampant political interference, it barely makes the mark. It is staffed with people drawn from other police agencies such as the CRPF or BSF, or state police officials on temporary deputation. On one occasion the CBI recruited scores of officers at the inspector level from the Central Industrial Security Force (CISF). None of them had ever been trained, let alone conducted an investigation in their brief careers. Similar ad hoc recruitment policies continue to dominate the CBI.

The agency also used to recruit some officers directly in the middle ranking positions, but they typically had few avenues for growth in their careers. The senior levels are dominated by officers from the Indian Police Service who belong to an all India service with no common state codes or standards. Every officer is part of a particular cadre where he or she will have to return once the five or seven year tenure comes to an end at the centre. They come on a temporary basis, with varied experiences that may or may not be conducive for conducting anti-corruption investigations. As a result efficacy is not a priority, which leads to a detrimental situation. Worse, once the officer returns to his cadre, it creates serious issues of continuity, and impinges on the experience, training and best practices of the organization.

There is also the issue of protecting the integrity of investigations that are hampered by issues intrinsic to any all India service. For instance, an IPS officer tasked with investigating allegations of corruption against a chief minister of a state may be hobbled by the fact that he or she belongs to the same state cadre. If the officer is to serve in that state for nearly 20 years out of a 30-year career, then the chances are that either the investigation or the officer will be handicapped at some point. While this should have been an issue of major concern, it has never been studied nor has any effort been undertaken to address such an anomaly.

Obviously, all this has added to the CBI’s inefficacy. The current tortuous legal system, and the lacunae in the anti-corruption laws also play a major role in the efficacy of the organization. A study published in the Indian Police Journal 57(2), April-June 2010, clearly identified the problems that hamper the CBI in tackling corruption and came up with some startling findings.

 

The study took 264 cases registered as First Information Reports (FIRs) with 698 accused persons as its base sample and discovered that only eight of the accused (out of 698) actually underwent imprisonment despite the fact that 273 had been charge-sheeted. Out of the 273 charge-sheeted, a substantial 144 had been convicted by the courts as well. But in the end only eight actually ended up in jail. The average time taken for the investigation to be completed was 13.4 months, but the average time taken for a trial was about seven years, four months. The bottom line of the study was that the substantive conviction rate was actually a low of 3.96%.

This further underscores the point that institutions are unlikely to work unless their culture of efficacy is examined. Interestingly, an ethnographic study commissioned by the Central Intelligence Agency on intelligence analysis after the failure of 9/11 established an interesting phenomenon that is of relevance here. Conducted by Rob Johnston, it discovered that the process of intelligence analysis suffered greatly because the intelligence agencies were more obsessed with secrecy than efficacy. This is a phenomenon that equally holds true for organizations like the CBI which concentrate on opacity rather than transparency, thus negatively impacting efficiency. Add to this, the problems of lack of trained staff, political interference, indifferent prosecution and we are left with an agency that appears to have some teeth, but no bite.

Our Parliament, given the nature of electoral politics, has also ushered in a system of little or no accountability. The office of the Comptroller and Accountant General (CAG), despite dutifully sending in its reports every session, finds that its work rarely features in the general discourse. At best, even if by some miracle the reports end up with the Public Accounts Committee (PAC), they achieve little. The PAC at best makes indifferent recommendations that are more for publicity rather than to correct processes or penalize subversions.

 

Add to this hodgepodge the lack of an effective public grievance redressal system and the true, horrific picture finally emerges. None of the establishments of governance follow any system of ‘best practices’. As a result, the lack of codification leads to a complete lack of accountability. This is the juncture at which systemic corruption creeps in. It ensures that the public at large is never in a position to demand good governance where it matters most. As a result, grievance redressal becomes ineffective and makes the vigilance mechanism redundant as well.

So far various groups have debated these issues at length and come up with several measures. While those associated with the veteran Gandhian Anna Hazare have undoubtedly given a new lease of life to the issue, they see the proposed Lokpal as a one-stop solution to the problem. On the other hand, another group associated with the National Campaign for the People’s Right to Information has come up with its own ‘basket of measures’ that disaggregates the meta concern into distinct issues, and recommends specific measures and institutions to address each separately. The implicit assumption is that once these institutions are created, they will go a long way in correcting the subversion that currently exists.

 

However, if we look at some of the cases that have cropped up in the recent past, it seems that the government is more than happy to set up additional institutions, without however ensuring that they will not work at cross-purposes and thus remain as ineffective as the present ones. For instance, the recommendations of the second Administrative Reforms Commission continue to languish with a committee of secretaries without any hope of corrective action for the future. The recommendations were a step in the right direction to usher in good, accountable and transparent governance to the common man. Instead, they lie buried in the files of the Department of Administrative Reforms, which ironically is headed by the prime minister himself. Similarly, a proposed civil services delivery bill that briefly came up for discussion was quickly nixed by the same bureaucrats who would have become answerable had this made its way to Parliament for legislation.

The current discourse on the proposed Lokpal bill also leaves much to be desired. There are serious questions about using fasts, agitations and protests to encourage a debate on such a complex and vexed matter. There has to be a fine line between dissent, protest and complete anarchy. Today, because the stature of individuals lends credibility to a manner of protest, the same legitimacy can easily be misused to weaken institutions that are the bedrock of a democracy.

Moreover, the current discourse also fails to address the lacunae in the two versions of the bill that have been put out in the public domain. For instance, one bill (official) says that the accused will be informed before the investigation starts, at the complaint stage itself. This is as absurd as informing an accused that a CBI raiding party will be visiting his premises to look for black money after 24 hours.

 

Another disturbing provision in the government’s version retains the import of section of 197 of the CrPC and section 19 of PC Act. This ensures that public servants who are covered by Articles 311,312 and 320 of the Constitution will continue to enjoy the need for prior approval of appointing authority before initiating prosecution. This effectively excludes all the AIS (the IAS, IPS, IFS) officers who are actually associated with the bulk of decision making. Therefore, the new bill will be almost as toothless against that segment or bureaucracy whose complicity is intrinsic to corruption in governance.

Unless such issues are recognized and accepted as action points, it is unlikely that any institution, existing or newly created, will be able to effectively tackle corruption in the public sphere. In the meantime, governance continues to suffer, vitiating the entire atmosphere and preventing any social, political or economic growth that could have alleviated the lives of the humble aam aadmi.