Corruption Allegations Felled The UPA, But Modi’s Bribery-Fighting Lokpal Has Little To Do

SAURAV DAS
 
22 Jan 2022 13 min read  Share

One of the issues that brought Prime Minister Narendra Modi to power in 2014 was corruption, the antidote to which was to be a Lokpal, a public ombudsman. His government reluctantly set it up only five years later, after a Supreme Court order. In 2021, it received no more than 30 complaints, with critical posts of inquiry and prosecution chiefs vacant, a third of its budget unused and a former member telling us there are no efforts to make the Lokpal effective–a toothlessness markedly similar to what happened in Gujarat under Modi.

A support rally for Anna Hazare/SHAHK, CREATIVE COMMONS.

New Delhi: For a country that was found to have one of Asia’s worst bribery rates in 2020, there appear to be very few complaining of corruption in the government of Prime Minister Narendra Modi—if you count the number of cases registered with the Lokpal, India’s corruption-fighting independent, national ombudsman. 


In 2019-20, the year the Lokpal was established, it received 1,427 complaints; in 2020-21, it received 110 complaints, and until July 2021, no more than 30.  


In August 2021, the government in Parliament cited this declining number of complaints to the Lokpal as evidence that “there is hardly anything to complain against” with regard to Modi’s government.   


The Lokpal is meant to inquire and investigate allegations of corruption against public servants, including former and current Prime Ministers, union cabinet ministers, members of parliament, and central government officers. 


Of the 30 complaints during 2021, the latest year for which data are publicly available, 11 were “closed” and the rest are under investigation. The Lokpal does not make available the nature of complaints and how they are handled.


“I call it the jokepal,” said Shailesh Gandhi, a former central information commissioner. “What good has it done? It is nothing but an expense head, just like other commissions.”


Gandhi said “anyone” in India could “dig out 100 examples of bribery every month” in the government. “You could do it too,” Gandhi told Article 14. “So, why is the Lokpal not doing it?”


Others, too, have questioned the failure of the Lokpal to make any headway in curbing corruption, with a former member—a retired chief justice of the Allahabad High Court—alleging in 2020 after resignation, that the current Lokpal chairman had “no interest” in ensuring the institution makes good its mandate.


Ridden With Infirmities

When it was first created by the United Progressive Alliance-II (UPA-2) government, there was criticism that the design of the Lokpals, at the Centre and state counterparts, was ridden with inadequacies


There was previously criticism that it was designed to fail, and now there is evidence that it is being set up to fail:

– A complaint to the Lokpal can only be made in English.

– Two of four posts of judicial members are vacant.

– The posts of directors of inquiry and prosecution—responsible for inquiries into corruption and prosecution of government servants— are vacant.

– A third of its budget is unspent.

– The law that brought it into existence has been amended to make its working opaque, the opposite of what it was meant to be.


The promise of tackling corruption and establishing a Lokpal was a prime factor in the rise of Prime Minister Narendra Modi and the Bharatiya Janata Party (BJP). 


After widespread protests led by anti-corruption crusader Anna Hazare in 2011, the government of former Prime Minister Manmohan Singh, rocked by corruption scandals, enacted The Lokpal and Lokayuktas Act in 2013. 


More than a decade after it was first demanded, seven years after it brought down a government, and nearly three years since it was constituted, the Lokpal is a shadow of what it was meant to be, and those involved in its creation have either moved on or become supporters of the BJP.  


A Promise Misused

“Something is seriously not right, the (sic) scam after scam, and it comes back to the solution, what beyond the scam? Who investigates? Who prosecutes? Who tries it? The key is not ‘what’ but ‘who’? The ‘who’ is missing. There is no SIT (special investigative team), no independent CBI (Central Bureau of Investigation, no neutral ED (Enforcement Directorate). And that’s why the Jan Lokpal Bill.” 

—former Hazare confidant Kiran Bedi to NDTV in 2012.


“I have no track of the Lokpal.” 

— Bedi to Article 14 in 2022. 


The faces of the movement led by Hazare, such as former Indian Revenue Service officer Arvind Kejriwal and former police officer Kiran Bedi, have moved on, assuming different political roles over the last decade.


While Kejriwal floated his own party, the Aam Aadmi Party, and became the chief minister of Delhi, Bedi contested the Delhi elections in 2015 as the BJP’s chief ministerial candidate. After losing to Kejriwal, Modi’s government made her the Lieutenant Governor of Puducherry in 2016.


Modi and the BJP rode the anti-corruption wave inspired by Hazare to come to power in 2014, successfully toppling the UPA-2 government led by the Congress party.


Modi’s lack of intent in creating a Lokpal or referring to it again became apparent almost immediately. 


Over nearly four years of his first term, Modi did not chair a single meeting of the Lokpal selection committee, as he was supposed to as Prime Minister, revealed a 2018 right-to-information query to the government by transparency activist Anjali Bhardwaj.


In 2015, Hazare threatened another agitation—which he never launched—if Modi did not set up the Lokpal. In 2017, Hazare again questioned Modi’s continuing inaction on the Lokpal. In 2018, he sat on a six-day protest fast.


In 2018, the Supreme Court described the Modi government’s explanation—it was “a complex process”, the attorney general told the Court—for the delay in setting up a Lokpal as “wholly unsatisfactory”. 


The Lokpal was meant to be independent of the government, headed by a chairperson who must be a former Chief Justice or justice of the  Supreme Court and is supposed to be staffed by eight members, half of whom are judicial members, meaning former judges.


To deter arbitrariness and appointment of candidates aligned with the government, the selection of the chairperson and members is done through a selection committee comprising the prime minister, speaker of Lok Sabha, leader of  the opposition in the lower house of Parliament, the Lok Sabha, the Chief Justice or a sitting Supreme Court justice nominated by Chief Justice, and an eminent jurist.


Following this process and only after an order from the Supreme Court, did India get its first Lokpal, former Supreme Court justice Pinaki Chandra Ghose in March 2019.  There was then no leader of the opposition, and Mallikarjun Kharge, the leader of the single-largest party, the Congress, boycotted the selection meeting because the government only invited him as a “special invitee”, with no role in the selection.


As we said, the first year was the Lokpal’s most active year in terms of complaints. It’s been downhill since, in terms of action taken, and, the years that followed, even by complaints received.


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Few Complaints Received, No Action On Most

The Lokpal has received only 1,567 complaints over the past 2.5 years for which statistics are available, according to publicly available data


91% (or 1,427) of all complaints ever made to the Lokpal came in the year 2019-20. 


“This does not really reflect reduced levels of corruption in the country,” Anjali Bhardwaj, a transparency activist and co-convener of the Satark Nagrik Sangathan told Article 14. “To my mind, it is a completely bogus argument to make.” 


The falling number of complaints is a result of the Modi government’s attempts to make the Lokpal redundant, argued Bhardwaj.

“First, it did not operationalise the Act for five long years,” said Bhardwaj. “Second, it made appointments to the Lokpal in an opaque manner thereby destroying public trust in this institution. And lastly, by not making the rules for filing complaints to this body for a long time.” 


Of the 1,427 complaints the Lokpal received in 2019-20, 85% were “outside its jurisdiction” and, so, not admitted; 6% were returned due to complaints filed in “incorrect format”. 


When it receives a complaint, the Lokpal either decides it will conduct a preliminary inquiry itself to determine if prima facie a case is established— either through its inquiry wing—or it can direct another agency, such as the Central Bureau of Investigation (CBI), to investigate.


In 2020-21, of 110 complaints the Lokpal received, 69% of them were closed after preliminary examination. A preliminary inquiry was ordered in 30 cases and 13 of these are still pending with the CBI and the Central Vigilance Commission (CVC). The remaining 18 complaints were closed after it received an inquiry report from the agencies tasked to inquire into the case.


The complaints are not public, as we said, neither are the findings.


Ineffective, Opaque: Former Lokpal Member

On 6 January 2020, a judicial member of the Lokpal, Justice (retired) Dilip Bhosale, former Chief Justice of the Allahabad High Court between 2016 to 2018, resigned citing “personal reasons”.


But those reasons, it emerged, centred on what Bhosale alleged was the ineffectiveness and opacity of the Lokpal.


In February 2020, the Indian Express reported how Bhosale had written three letters to the Lokpal Chairman weeks before his resignation complaining about the lack of “any office/official work” and criticising the pace of work and lack of transparency in the Lokpal.


“I was suggesting this (ineffectiveness and opacity) since day 1,” Justice Bhosale told Article 14. “My suggestions were completely sidelined by the chairman. He showed no interest at all. The response was negative.”


The Lokpal, said Justice Bhosale, received mostly “frivolous complaints”, either “minor” or beyond its jurisdiction. Asked if he could have made a difference if he had stayed on and completed his three-year term, Justice Bhosale said that would have been “a waste of time”. 


“This is not the way to function,” said Justice Bhosale. “I did not see any initiative being taken by the Chairman to work and make this institution vibrant”, he said.


Article 14 contacted Lokpal chairman Justice Ghosh over the phone, but he refused to comment. We sent a detailed questionnaire to him over WhatsApp. We will update this story if he responds. 


One of the members of Lokpal, speaking to Article 14 on condition of anonymity, denied the argument that his institution was ineffective in addressing corruption in government.  


“Who said so?” said the member. “We’ve been very effective and are not lagging anywhere. Of course there is corruption in the country, no one is denying that. But we have to go by evidence. If you bring evidence, we take the case forward without fear or favour.” 


Government agencies, said the member, had been “very cooperative”. Acknowledging that the Lokpal had not created enough awareness about itself and what it could not, he said time was wasted because of the Covid-19 pandemic and a committee had now been formed to suggest improvements. We could not verify if this was indeed the case.


Critical Posts Vacant, Money Unused

It has been 24 months since Justice Bhosale resigned. His position has stayed vacant since, as has the post of another judicial member—there are four—Justice A K Tripathi, who succumbed to Covid-19 in May 2020.


As we said the directors of inquiry and prosecution, officers not below the rank of additional secretary or equivalent are also vacant: they were to be appointed by the chairman from a selection of names sent by the union government. 


A source in the Lokpal, speaking on condition of anonymity, said there were other “crippling vacancies” within the Lokpal secretariat, which is supposed to be staffed by 124. 


Commenting on the vacancies in important wings of Lokpal, the member quoted previously said they were “actively pursuing” the matter with the department of personnel and training (DoPT), the administrative ministry assisting the Lokpal. He said the issue of filling vacancies was “at an advanced stage”.


Another indication that the Lokpal is not fully functional comes from its failure to use the money set aside for it. 


In 2021, a parliamentary committee expressed “deep concern” over the Lokpal utilising less than a third of its budget and recommended that  the DoPT, identify factors that restrict or hinder the utilisation of funds.


The Roots Of Modi’s Resistance

The Modi government’s hesitation to make the Lokpal fully functional and effective reflects the prime minister’s track record on issues of transparency and corruption. 


As chief minister of Gujarat, Modi did not appoint, and even opposed a Lokayukta, the equivalent of the Lokpal in a state, for a decade.


When a Lokayukta was appointed in 2011 by then Gujarat governor Kamla Beniwal in consultation with the Gujarat High Court Chief Justice, Modi fought in the Supreme Court to get the Lokayukta, Justice R A Mehta, removed, and lost in all the cases (here and here). 


Refusing to take up the position, Justice Mehta accused Modi’s government in Gujarat of "persistently and tenaciously approaching the Supreme Court with special leave petition, review petition, and curative petition at huge public expense”. 


Modi’s government had demanded a Lokayukta with no “anti-government bias”. 


After Justice Mehta’s departure, Modi’s government in Gujarat passed an amendment to the Gujarat Lokayukta Act, doing away with the need to involve the Gujarat HC Chief Justice in the appointment process, leaving it entirely to the government. 


Governor Beniwal called Modi’s approach a “travesty of the institution of ombudsman”. Modi did something similar when he became prime minister. 


The Lokpal, Diluted 

Modi’s government in New Delhi amended the Lokpal and Lokayuktas Act in 2016, diluting key provisions. 


The key provisions included a statutory requirement for public servants to declare to the Lokayukta assets and liabilities of their spouses and dependent children; and for these declarations to be made available to the public. Instead, Modi’s government would now decide the form and manner of these declarations.


It is common in India for illegally amassed assets in the name of family (some examples here, here and here). These declarations allow the media and the public to identify evidence of corruption against public servants. The 2016 amendments allow opacity and fuel corruption, said experts, undoing much of the original 2013 Act.


“The amendments are a complete compromise with the idea which existed for years, that assets of the family members are actually assets of the officer,” said Nikhil Dey, social activist and founder member of Mazdoor Kisan Shakti Sangathan, the organisation that played a pioneering role in getting the Right to Information Act, 2005 passed in India.  “It is ridiculous and a step backward.”


“Any candidate even standing for elections, forget winning and taking office, has to declare their own assets and that of family members, but officers who are salaried employees are exempt from doing the same?” said Dey. “The idea of Lokpal was based on people knowing, and based on this knowing, them pursuing corruption of public servants.  Forget pursuit, if there is no transparency”.


Gandhi, the former information commissioner, also blamed media and civil society for what the Lokpal had become. 


“They (media and civil society) are also to blame,” said Gandhi. “After getting a Lokpal, they have forgotten to evaluate its performance. There is no monitoring of its functioning.”


Gandhi said appointments to bodies meant to increase transparency in public life, such as the Lokpal and information commissions, were now largely made in secret. 


“Most positions are given as part of political patronage and/or bureaucratic networking,” said Gandhi. “Presently, instead of them being regulators safeguarding our rights, they become torture chambers for citizens.”


That secrecy certainly applies to the Lokpal. 


The Central Information Commission, the body tasked under India’s Right to Information Act, 2005, to decide if information in public offices can be disclosed, in February 2021 disallowed a challenge to classified minutes of a selection-committee meeting that selected the present Lokpal chairman and members. 


The appointment process of the central information commissioners is also shrouded in secrecy. Despite a Supreme Court order to publicise the criteria it follows to shortlist candidates for these posts, the Modi government has refused to do so.

 

(Saurav Das is an independent investigative journalist based in New Delhi.)