SHASHI THAROOR (THIRUVANANTHAPURAM): Mr. Deputy-Speaker, Sir, we heard a powerful and statesmanlike speech from our Prime Minister. It was not, as has just been alleged, a farewell speech but a speech of taking stock of the platform that has been built for further progress. I would like to refer, Mr. Deputy-Speaker, Sir, to an earlier speech by our Prime Minister when he was not yet Prime Minister when he said to this august House twenty years ago in announcing the liberalization of Indian economy, quoting Victor Hugo, that there is no power on Earth that can stop an idea whose time has come. Today, Mr. Deputy-Speaker, Sir, we have another such day when a powerful idea has reached us, the idea of an independent and effective anticorruption body.

          The mood of the nation is clear. And I think everyone in this House will acknowledge that there is a reason why this is the first time after eight previous unsuccessful attempts, the first time since 1968, that we are actually discussing the passage of a realistic Lokpal Bill. I do want, I think in the name of many of us in this House, to congratulate all those inside and outside this House who have placed this issue on the agenda of the nation. They have done the nation a service in bringing this issue here. And I do believe that our Government has done a great job in rising so admirably to the challenge of presenting a credible Lokpal Bill to this House.

          As the Durban Commitment to Effective Action against Corruption declared in 1999, a commitment to which India is a signatory, corruption deepens poverty, debases human rights, degrades the environment, derails development, destroys confidence in democracy and the legitimacy of Governments. This is why, Mr. Chairman, Sir, the time to act is overdue. And this is why we must commend the Government for putting forward the Bill that it has. Let us not underestimate the need for this Bill. The fact is that people around the nation have been raising and discussing the issues that have come before us today.  There is a problem with the national debate; we have seen outside this House that people around the country know what they are against, but do not know that those who are agitating were for.  And so, there was a simplistic attempt to support another Bill, a Bill drafted outside this House, which would have given us, I am afraid, a clear, all encompassing, but a deeply wrong-headed and undemocratic prescription. The Government has avoided that danger and has come forward with a Bill that tackles the real problem that we are facing – the issue of corruption. Corruption is not just the big ticket corruption that everyone has alluded to; it is not just the big headline corruption; it is not just the amounts that have put prominent figures in jail, but it is the daily corruption that affects  ordinary Indians that we must be concerned about.

          The widow who cannot claim her husband’s pension or insurance pay out, without bribing a clerk; the pregnant labouring class woman, who cannot get the Government’s bed that she is entitled to deliver her child in, without bribing an orderly, otherwise, she has to deliver on the floor. These are real cases. The young man who wants to be a lorry driver, but cannot get a driving license without paying a bribe or worse still, the lorry driver who cannot drive properly but can get a license by paying a bribe and becomes a menace to all of us. The son or a daughter who goes to get a death certificate for his or her parent, who died but cannot get it without again paying a bribe.

          Shri Yashwant Sinha said that we want a people-centric Bill. These are the people on whom the Bill is centred. If you want people centric action, just yesterday, the Transparency International, the Berlin based anti-corruption organization, released the results of a survey of 7,500 people, conducted in South Asia over the last two years. Fifty-four per cent of Indians surveyed, said that they had paid a bribe. According to the survey, Indians pay bribes frequently when dealing with all sorts of essential public services – the police – 64 per cent; property and land – 63 per cent; registry and permit services – 62 per cent; tax revenue – 51 per cent, and so, the list goes on – even up to, educational services. This is a shame for us and we must tackle this firmly.

          If Transparency International is seen as a foreign institution, let us look at the analysis released very recently – this week – by the Aziz Premji University in Bangalore that studied the last ten years’ performance of the Karnataka Lokayukta. What did it find? It found that 80 per cent of the cases handled by the Karnataka Lokayukta are related to the four essential functions of the Government – local Government cases – 24 per cent; administrative cases – 37.6 per cent; welfare cases – 17.6 per cent and regulations – 2.5 per cent. In other words, corruption infects our system and we must deal with it.

          It seems to me that the problem however was that while people knew what they were against, they did not know what they were for.  They supported an outside Bill, without fully understanding the dangers that that Bill posed. But they did feel – the nation as a whole feels – that there is a need for a strong anti-corruption agency which is effective and independent of the Government so that any wrong-doings by public officials can be investigated, prosecuted and punished. That is what this Bill gives us.

          In my view a good Bill had to meet the following five principles – I believe that the Government has done a very good job, as I would explain. Firstly, the Bill must be conscious of its obligations to the society, and to our democratic institutions. This Bill takes into account the demands of civil society and at the same time, it is respectful of the democratic institution of Parliament, which is the only place where this law can indeed be passed.

          Secondly, it must ensure that the cure that is being prescribed is not worse than the disease. We had a cure being prescribed from outside that would have created a supra-institution, an institution that frankly would have been undemocratic fundamentally, that would have combined the police powers of investigation and arrest with the judicial powers of prosecution and punishment, all in one institution.   It would have been extremely dangerous.  This Bill builds in effective checks and balances.

          The third principle is that a good Bill must deal with the issues of monetary corruption and mal-administration, of the misuse of authority for personal gain and indeed the embezzlement of public funds. You will find that the Government’s Bill covers all of these and more.

          The fourth principle that is important is that the Bill should strengthen our constitutional and institutional mechanisms in this country against corruption.  The fact is, by proposing it is a constitutional amendment, the Bill is anchored firmly in the need to strengthen our constitutional and institutional arrangements.

          Mr. Chairman, the fifth principle is that it should also be effective in avoiding the risk of decision making paralysis.  Shri Sharad Yadav ji, for example, rightly said that most bureaucrats in this country are capable and honest.  I do not think that we would demur with that but there is always a danger that honest bureaucrats would be terrified by the provisions of too draconian a Bill and would, therefore, not wish to act.  The avoidance of risk would become the most important concern.  There are many bureaucrats who believe that you cannot be punished for doing nothing and that is the worst thing for a country that is seeking to develop, to grow and to change.  We must not create a situation in which bureaucrats are impelled to do nothing.  We must make it possible for the honest to have fair and due process and where honest officials do not feel that they need to duck the responsibility to take initiatives and decisions.  That I believe this Bill has tried to do with the protections built into it. 

We will only know to what extent we have avoided the dangers by the actual working of the Bill, and I think it is extremely important to see this Bill as a stepping stone for larger, broader reforms which I would like to return to briefly, Mr. Chairman, in a minute.  But before doing so I would like to respond to some of the specific charges made by the Opposition and some of the specific claims made by the Opposition in this debate today.

The fact is what have we heard!  Have we heard nit-picks? Yes.  Have we heard legal sophistry, as the Prime Minister has said?  Yes.  Have we heard a lot of rhetoric?  Yes.  But have we heard substance?  No, Mr. Chairman.  The only substance that I have been able to hear so far has been the Leader of the Opposition and the previous speaker holding up the Uttarakhand Bill as a model of how such Bills should be created.  Well, Mr. Chairman, I have got hold of a copy of the Uttarakhand Lokayukta Bill and I find there are some very interesting provisions in it, which I believe the House would be happy to learn about.

For example, as you know, our Bill proposes that one needs a three-fourth majority before the Prime Minister should be brought into the purview of a particular investigation.  And the Leader of the Opposition has proposed an amendment, that has been circulated to all of us suggesting that it should be reduced to two-thirds as three-fourths somehow weakens the authority of the Lokpal.  What does Uttarakhand do, Mr. Chairman?

Chapter 6, Clause 18 of the Uttarakhand Lokayukta Bill says that no investigation or prosecution shall be initiated against the Chief Minister, against any Minister or against any Member of the Legislative Assembly without permission from a Bench of all the Members and the Chairman.  So, they want a hundred per cent to indulge a Chief Minister and MLA in Uttarakhand and they think that our 75 per cent is too much.

There is more, Mr. Chairman

SHASHI THAROOR (THIRUVANANTHAPURAM): We are concerned about the impact of corruption on the BPL, not the IPL, Sir.

          Mr. Chairman, the audit of the Lokayukta that is provided for in the Uttarakhand Bill is very interesting.  According to Chapter 5 of the Uttarakhand Bill, Clause 14 (2 ) says that a Committee of the Uttarakhand Legislative Assembly can do an annual appraisal  of the functioning of the Lokayukta.  So, the Lokayukta there is under the Legislative Assembly and yet the Opposition that is holding this up as a model says that our Lokpal Bill, which is completely independent of Parliament and independent of the Government is weaker than the Uttarakhand Bill.  Mr. Chairman, if this is their idea of a model Bill, perhaps we can understand why they have no Lokayukta in Gujarat for the last eight years.  So, the fact is that the so-called model Bill… (Interruptions) You know, one of the dictionary definitions of a ‘model’ is a small replica of the real thing.  Today, we have the real thing. 

Now, I would like to speak about the discussion, which we heard on the UN Convention against Corruption.  I happen to know a little bit about it.  I will not enter into the territory of the legal experts, who have debated the respective merits of Articles 252 and 253 of the Constitution. 

          My hon. colleague Shri Kapil Sibal has made it very clear that Article 253 does empower Parliament to enact a law for the whole or any part of the territory of India to implement an international treaty or Convention.  This provision actually does ride the List in the Seventh Schedule.  It is because it is the exercise of our Parliaments “constituent power”. Note just making a routine law.   But I will go beyond the legal issue because I am not a lawyer.  However, it seems to me that corruption-free governance is a basic human right in India.  It is, in fact, judicially recognised and enforceable. 

In fact, the only way we can bring it, is by having a unified and comprehensive framework, in which we can fight corruption in a united way at the national level, State level and local level.  How can we pretend that it is appropriate to have one set of anti-corruption measures in Karnataka, which is not applicable in Kerala?  It is not possible.   

When we offer this as a constitutional amendment, of course, what we are saying is that we cannot allow States to undermine the effectiveness of the law, as it applies throughout our territory. 

          Shri Basu Deb Acharia was good enough to read out a particular part of the Convention.  Let me say to him and to the Members of the House that in any case.   Chapter IV of the UN Convention against Corruption, Articles 43 to 49 says that State parties are obliged to assist one another in every aspect of the fight against corruption, including prevention, investigation and prosecution of offenders.  It explicitly adds that countries that do not criminalise certain kinds of corruption would be obliged to cooperate with other States that had done so. 

          So, if there is a State that, in pursuance of the “States rights” theory we have heard today, chooses not to criminalise corruption of certain sorts, the Government of India as a signatory to the UN Convention is obliged to cooperate, nonetheless, and cooperation in criminal matters is mandatory. So, it is extremely important to understand that this is a serious international obligation that we have taken on. 

The Chapter VIII of the UN Convention, Articles 65 to 69 stress further that the UN Convention’s requirement are to be interpreted as minimum standards, which states parties are actually invited to exceed with measures “more strict or severe’ than those that are in the Convention – not less strict or severe but more. 

I must disagree with those in this Debate, who have said that these are international standards, European standards and somebody has said that these do not apply to the Indian reality.  In what way is India is inferior to Europe or any other part of the world?  We can have the same standards.  We can have better standards.  We do not need to dilute our laws by absolving the States of their responsibility. 

Hon. Leader of the Opposition has once again made this argument that this is a weak Bill because it separates the power to enquire, investigate and prosecute.  But to my mind, this is a strength, not a weakness. Would you want the police in your country to be able to enquire; arrest; prosecute and judge you?  No.  Then, why would you want Lokpal to be able to do that?  It is not democratic. 

In fact, the suggestion that the failure to give the Lokpal administrative and financial control of the CBI, is a way of making the Bill weak, is completely ill-founded.  The Lokpal is positioned as an independent agency, exclusively responsible for the superintendence and direction of investigation and prosecution.  You cannot expect the Lokpal to be simultaneously the investigator as well as have the power of superintendence and control over the investigator.  It is a fundamental contradiction. 

What does the superintendence and control of investigation mean?  There is a Supreme Court judgement of 1997.  It is well known as the Havala judgement, which sets the constitutional benchmark for the independence of investigation.  What does the Supreme Court say in that judgement?  It says that investigators are answerable to the law and to the law alone, not to the Government.  The Supreme Court distinguishes between interference in the investigation of cases on hand by the Government, which it prohibits - so, the Government cannot interfere in the actual investigation- but it makes a distinction between that and the Government’s administrative and financial control over the investigation, which it considers totally legitimate.   So, in the Bill that we have before us, Section 25 protects the independence of the investigative process while leading the Government to fulfil its constitutional and legal duties and responsibilities to the offices of the Government. In any case, financial independence is guaranteed by the fact that the funding to the Lokpal is assigned to the Consolidated Fund of India and of the Lokayuktas to the Consolidated Fund of the States. 

          There has been a discussion on the question of minority representation. All I can say is that the objective is very clear -- that such a powerful and an important body coming up in response to such a mass demand must be as representative as possible of the rich diversity of our country. This was the principle behind which we fought for our own Independence when we said that India cannot be ruled by people who are not Indians. We must accept that within India there are people of various backgrounds who would want to see people of their backgrounds represented in these crucial decision making processes and the Lokpal cannot be an exception.

          Mr. Chairman, Sir, let me say to those who have raised their concerns about the Bill, to those outside this House who have attended rallies, who have spoken out, who have appeared on television, I think it is time for this House to say `your voice has been heard, we have listened to you’. With the passage of this Bill, the fight against corruption would now be on stronger and newer footing. Perhaps, the Bill is not everything that you hoped for; perhaps it does not contain every provision, dot every `I’ and cross every `T’ as you would have liked. But change has its own momentum. Think of the Right to Information Act, the RTI. Think what people assumed when the Bill was being passed and think how strong and effective it has become. All of us, I am sure, had to taste its sharp edge. So, let us see this Bill work in practice. Let us, if necessary, in the fullness of time, adjust this to the experience that we should have. But, after all, our Constitution has been amended over a hundred times and we cannot afford to take the position, as some outside this House have done, of “my way or the highway.” We must urge people to avoid extreme positions, to respect the outcomes of deliberative democracy which we have seen in action in this House today. We cannot afford to be in too much of a hurry. There is an old saying in English that one should beware of the young doctor and the old barber. Both, in haste, can cause a great deal of damage. And there is a fear that there are too many young doctors and too many old barbers behind the versions we are hearing outside this House.

          Mr. Chairman, Sir, let me stress that not even this Bill, and certainly not the Bill that was proposed from outside, offers a magic bullet. It is not a panacea. Corruption is not going to disappear overnight. This Bill must be seen as part of a much broader set of laws and institutions in our country. The Prevention of Corruption Act, 1988 has been mentioned; the Prevention of Money Laundering Act, 2002 has not been mentioned. There is the RTI Act itself. There are institutions of Central Vigilance Commission, of the CBI, of the Comptroller and Auditor General, of the Enforcement Directorate.  It has to be seen as a part of our international obligations under the UN Convention against corruption.  It must be seen domestically as being strengthened and buttressed by our vibrant media, by our rich civil society, which too will ensure that this Act works well.   Today we have the Whistle Blowers Bill before us, the Public Interest Disclosure and Protection to Persons making the Disclosures Bill. That too will be one more pillar strengthening our efforts against corruption. The Judicial Standards and Accountability Bill is coming and I am sure the Government is giving thought to a Procurement Bill. Then there are the Tax Reforms which our Finance Minister has been working on for some time and we heard reference to it in the black money debate we had so recently in this very House. Then there is Campaign Finance Reform and how can we, as politicians, shy away from recognising that there is a real problem with black money in elections and that too contributes to the concerns of corruptions that our people around this country have? We have heard about the Grievance Redressal Mechanism. We need to simplify laws and regulations in our country and increase administrative transparency. Then there is the question of reforms to prevent tax evasion. Indeed, as has often been said by our hon. Prime Minister himself, there is the need, to reduce the discretionary powers of officers and Ministers so that indeed there should not be corruption. 

Let us admit that the all pervasive nature of our State is part of the problem.  The State is present in so many aspects of our social and economic life. And it is buttressed  by such a complex set of laws and regulations requiring approvals by so many officials at various levels which provides, of course, opportunities for corruption.  When the State is a producer and a supplier of many services, then those who work for the State, especially in financial decision-making, I am afraid, have the opportunity to profit from the power to permit.  They have the power to say ‘no’ at many levels and they have also the power to say ‘yes’. While honest officials, political or bureaucratic, will not profit from it, there are some who cannot resist the temptation.  The truth is, of course, just moving the process forward can be monetised and corruption is real as many of us know from our own experiences.  But I want to say one thing to those outside who have been saying that one piece of legislation prepared outside this House is the answer to all their worries.

I would like to say to them that let us never forget the wise words of our great Founding Father, Mahatma Gandhi himself who, more than 70 years ago, said “Be the change that you wish to see in the world”.

Who is ultimately responsible for corruption, if not ourselves as citizens of India? I would say one thing to those outside watching our deliberations in this House.  For every bribe taker, there is a bribe giver.  There is somebody who is trying to short circuit the process, get a short cut, avoid punishment by the Government, avoid a tax or avoid a law. The fact is that we cannot merely point fingers at the system, merely clamour for some sort of super powerful legal body and not forget the moral responsibility of society to change for the better. 

We can do that because we are a democracy. I urge the House today to adopt this Bill because it is a way of strengthening our democracy as a nation.

We have seen this year, in 2011, as to what happens in other countries where there is no effective democracy. We have seen our brothers in the Arab world, we have seen the throngs in the streets and the Jasmine Revolution. But we do not need the Jasmine Revolution because the fragrance of jasmine is always present in the nostrils of our democracy.

The fact is, we have evolved our own corrective mechanisms and this Bill is an example of such a mechanism.  Others may have bullets but we have ballots.  Others have civil wars, we have civil society.  Others clutch at straws, we make laws.  Let us today uphold our finest democratic tradition by passing this Bill.

Let us say, Mr. Chairman, to those outside that it is time to move on.  To the people of India, let us say do not  fall prey to the blandishments of those who would destabilise our country, who would do so on the altar of their own infallibility.   They are not infallible.  We in this House are not infallible. But we are doing our best. You, the people of India have elected this Parliament.   Please have faith in our judgement and good sense in what we are trying to do.

We are here and I know that our Prime Minister is here, only to uphold what we believe is in the best interest of this country, this nation and its people.  We are asking people to trust us but we are doing so after wide consultation and after 42 years of stalemate on this vital institution. 

In this centenary year of the first singing of ‘Jana Gana Mana’, let us tell ourselves that Parliament must act in the loftiest and most noble spirit of that  National Anthem.  A hundred years ago today, at the Kolkata Session of the Indian National Congress, ‘Jana Gana Mana’ was sung for the first time.  The next time we sing it, let us sing it in the knowledge that we have stood up against corruption, that we have stood for an institution that strengthens our country, that has emerged from our democracy, that we have discussed the merits and demerits and we have come to the conclusion which benefits this nation and people. 

Let us move forward and onward towards the kind of India that our National Anthem stands for.