Anna Hazare has threatened a fast and “fill jails” movement to persuade Parliament to place the Central Bureau of Investigation under the new anti-corruption Lokpal. He says a Lokpal without an investigative wing is toothless. The government replies that the anti-corruption branch of the CBI can be supervised by the Lokpal in cases referred to that body, but that’s all.
This debate misses the main reason why the Lokpal is likely to flop. Even if the Lokpal controls the CBI, it will have no control over the courts. These seem incapable of convicting any resourceful person beyond appeals within his or her lifetime. Little will be achieved if the Lokpal initiates a thousand cases that then drag on for decades, with the accused out on bail.
Example: the murder case of LN Mishra, former chief minister of Bihar and right-hand man of Indira Gandhi, is dragging on 37 years after his killing in 1975. The 27-year-old man accused of murder is now an ailing 64. Of the 39 witnesses he cited to prove his innocence, 31 have died, gravely prejudicing the case against him. No less than 22 different judges have handled the trial over the years. The case is being tried on a day-by-day basis, the fastest possible. If this happens in a VIP’s case, what hope of justice do lesser mortals have?
The corruption case against Sukh Ram, former telecom minister, has gone on for 16 years. The High Court has just pronounced him guilty, but he can appeal to the Supreme Court. He is now 85 years old and ailing, and may not live to hear the Supreme Court’s verdict.
These are just two of a myriad of examples. The problem is not limited to criminal cases—civil cases are even more problematic. The IFC and World Bank produce an annual Doing Business report on how difficult it is to do business in different countries. In the category “enforcement of contract” , India ranks 182out of 183 countries! It is the second worst in the world. India is sometimes called a miracle economy , but the real miracle is how a country with such a pathetic judicial system grows fast at all.
The problem is compounded by a police force that is not only highly corrupt and willing to do the dirty work of political masters but is also lacking in forensic and investigative skills. It depends mainly on third degree measures to solve cases. An outrageous 1,500 persons died in police custody last year, and only the naïve will believe that these were mostly natural deaths.
Research by three academics (Kumar, Krishnaswamy and Narayana) at Azim Premji University, on 16 years’ performance of the Lokayukta in Karnataka, claims that lack of Lokayukta control over the police is not a binding constraint. In these 16 years, Karnataka’s Lokayukta carried out only 357 suo motu raids but responded to over 2,159 complaints against 2,681 officials. So, the legal power to initiate action was not the key determinant of the Lokayukta’s anti-corruption crusade. The lion’s share of Karnataka cases was against lower officials. This suggests that the Lokpal might be overwhelmed with petty cases if given jurisdiction over the lower bureaucracy.
Further, 95% of the investigated cases in Karnataka received sanction for prosecution. The researchers cite this as evidence that there is little political resistance to anti-corruption crusading. However, only 10% of the cases were against senior officials, and only 0.8% against elite corps like the IAS, IPS, IFS and KAS. So the evidence suggests nothing more than that anti-corruption action is feasible against petty officials. It does not diminish Anna Hazare’s case for strong powers to overcome political resistance to tackling Big Corruption.
The huge problem uncovered by the researchers is that the cases under trial are, on an average, more than five years old. Only 16 cases overall have resulted in convictions, a conviction rate of 20% of completed cases and a small fraction of pending cases. This is much lower than the rate of convictions in criminal prosecutions in anti-corruption cases in India in recent years, which is between 34 and 40%. Despite having an activist Lokayukta, corruption has not been stemmed in Karnataka. To put it bluntly , India is a land without justice. So, Hazare’s belief that a powerful Lokpal with investigative powers will stem corruption is dead wrong. Unless we have root-and-branch judicial reform to speed up processes and verdicts, the new Lokpal will simply increase the already formidable backlog of incomplete cases in the courts. Unless there is justice for all cases, we will not get justice in corruption cases.
