Prashant Bhushan is an activist lawyer. He uses public interest litigation (PIL) to support a number of causes related to environmental protection, human rights He was a member of the India Against Corruption (IAC) movement
Corruption still pervades all sections of the government and corporate India. There is virtually no institution, including the judiciary, which is free from corruption. Six years ago there was a huge anti-corruption movement in the country to demand setting up of an independent anti-corruption ombudsman – Lokpal. Lokpal Act was ultimately passed by the Parliament three and a half years ago which, though not perfect, but would have certainly created some independent anti-corruption investigating agency.
But unfortunately even three and half years after the Act is passed, there is no sign yet of a Lokpal. The present government is determined to scuttle the move. It is not surprising as the Prime Minister Narendra Modi, when he was chief minister of Gujarat, for 12 years, did not allow the appointment of a Lokayukta in the state despite a law being there for the same.
During the UPA government, many cases of high-level corruption, including 2G scam and Coalgate Scam, were unearthed primarily due to CAG audits. There is no doubt that UPA government and its functionaries were involved in high-level corruption.
Narendra Modi rode to power on the back of the anti-corruption demand, promising to end the evil and black money. However, three years later, what we see is the steady destruction of existing anti-corruption institutions.
Apart from the non-appointment of Lokpal, Whistle blower Act which also received Presidential assent more than three and a half years ago is being destroyed. An amendment which has been passed in the Lok Sabha and is now waiting for passage in the Rajya Sabha provides that a whistle blower will be such a person who provides only that information which a citizen can access under Right to Information (RTI) Act. If whistle blower provides any additional information about corruption in a government department, he is liable to be prosecuted under the Official Secrets Act. This will destroy the entire purpose of Whistle blower Act.
Similarly, a lethal amendment has been approved by Modi Cabinet in Prevention of Corruption Act (PCA) which is designed to destroy it. This amendment provides that prior permission of the government will be a pre-requisite for any investigation in corruption cases. This provision, initially brought in a single directive by means of administrative instructions to the CBI, was struck down by the Supreme Court as unconstitutional in the Hawala Case.
Thereafter, it was again brought in the CVC act and it was again struck down by the Supreme Court for being unconstitutional. Now, it is being brought for the third time in PCA by the Modi government. Apart from that, another amendment seeks to remove the provision of criminal misconduct which is the section under which most of the public servant officials in 2G and Coalgate cases are being prosecuted.
There also was a promise to bring the Citizen’s Charter or the charter of the rights of the citizen for the time-bound delivery of goods and services, the bill for which was introduced in the Parliament in 2011 but lapsed with the dissolution of Lok Sabha in 2014. That law has also not been brought.
Former Chief Minister of Arunachal Pradesh Kaliko Pul committed suicide, soon after his government was dismissed by a judgement of the Supreme Court. Pul left a long and detailed suicide note, signed on every page. The note gives graphic details of several acts of corruption which he himself was privy to.
Despite the fact that a suicide note is treated as seriously under the Evidence Act like a dying declaration and despite the fact that then governor of Arunachal Rajkhowa asking for a CBI investigation into the suicide note, no such investigation has been allowed by the central government.
However, the most insidious and most damaging changes that have been brought are in the funding of political parties. About two years ago Delhi High Court held both the Congress and the BJP guilty of receiving donations worth crores from subsidiaries of foreign companies and directed their prosecution. However, the central government instead brought a retrospective amendment in Foreign Contribution Regulation Act (FCRA) in the Finance Bill passed in 2016. Foreign funding of political parties was thus, retrospectively allowed by amending the definition of foreign contribution.
Now, foreign companies have been allowed to give any amount of contribution through their Indian subsidiaries.
Even more dangerous amendments have been brought about in the political funding through the Finance Bill of 2017. Two very retrograde changes have been made, firstly the cap on funding of political parties by corporate which was fixed at 7.5 per cent of their annual profits removed and now corporations can give unlimited donations to political parties.
Moreover, these donations have also been made anonymous by providing an anonymous fund device called Electoral Bonds, through which corporations can give donations even if they amount to hundreds of crores. Thus any corporation including subsidiary of a foreign corporation can buy electoral bonds from specific banks and donate any amount of funds to political parties without anybody including election commission knowing the source of these donations.
It is significant that at a time when most countries are cracking down on funding of political parties even by corporations, and foreign funding is totally disallowed for political parties, India is opening floodgates of donations to the parties by corporations including foreign corporations, and by keeping such donations under wraps.
By far this is the most insidious change that threatens the integrity of elections in the time to come. It may be recalled that though there is a limit on election expenses of a candidate, there is no limit of expenses made by a political parties during elections. And money power is the main reason for ruling parties to continue winning elections. So far, they were made to make payments through cheque or drafts only which could be traced to the issuing company. Now, there will be no trace of the donor company.
Quid Pro Quo
There are often instances of quid pro quo by ruling parties to the corporations that have given them generous funds to win elections. And no one will now know how much contribution was made to ruling party’s election funds by the company being favoured.
For example, Reliance defence of Anil Ambani has been given Rs 29,000 crore contract for Rafael deal. If this company gives a political donation worth Rs 2,000 crore through election bonds, nobody would be able to establish the quid pro quo.
The government claims to have introduced e-auctioning to bring in transparency. But, nobody knows who has filed what bid in real time because all the bid remains with the government. There is a possibility of the process getting rigged since the lowest amount might be disclosed to the favoured bidder. The entire process should be made completely transparent - in real time.
After the auction is over, the government should put up on its website who filed the bid along with the bid amount and the time of filing. Even bank guarantees need to be disclosed.
For example, the 4G license was initially awarded to a little-known company which neither had experience nor resources and it ultimately sold its license to Reliance for Jio. Now it is coming to light that the bank guarantee for the original licensee was filed by Reliance only. They erased the name of Reliance and put its name. That means the entire process had been rigged from the very beginning. But such things don’t come in public domain. This matter came to light because of CAG inquiry. But, that takes 2-3 years after the actual deal and by the time, it usually becomes too late.
It there a time frame when we get freedom from corruption? No. Not in its entirety, unlikely anytime soon. But it can be curbed to a large extent by adopting transparency and a robust independent anti-corruption investigating agency.
It has been claimed that there has not been any major corruption scandal erupted in during present regime. However, the corruption scams of UPA Government erupted during its second term. CAG audits take a long time. Rafael deal, for example, has yet not been audited by the CAG though the process might have already started. In this deal, 36 aircraft had been ordered at a price of Rs 58,000 crores at a rate of Rs 1,700 per aircraft. Prior to the deal the then Defence Minister Manohar Parrikar had claimed that these aircraft would cost half of this price. But within one year the prices have been doubled since the contract was signed. Half of this contract was to be given to an Indian company. Reliance Defence is one-year-old company having no experience whatsoever in Defence production. But Anil company had been benefitted by over Rs one lakh crore in 2G Scam. It is only CAG audit that will reveal the irregularities and the evidence of corruption that may have taken place in this deal.
Similarly, Adani, whose companies have been found involved in number of irregularities including over-invoicing of coal imports, to inflate the cost of power being produced by Adani companies, and whose companies owe more than Rs 50,000 crore to public sector banks, was wanting to build a port in Australia for which he needed a loan of Rs 6,000 crore. Adani companies went to various Australian on the grounds that commercially it will be very risky but under pressure from the government, SBI eventually agreed to give the loan of Rs 6,000 crore to Adani. It is another matter that the project collapsed. However, grant of a loan under these circumstances, can’t be called anything but corruption.
Adani and Ambani also supplied aircraft to Modi for his extensive election campaigning in 2014. Modi claimed that demonetization was a major strike against corruption. However, no black money seems to have been unearthed. RBI is unable to give a figure, even six months later, as to how much old currency has been deposited with it and how much of it is black money. It seems that the total money which came back to the bank was equal to if not more than the total demonetised currency in circulation.
Information on Swiss bank account holders, those involved in Panama Papers and other vital information, which came involuntarily to the GOI from foreign whistle blowers; have not been taken up seriously. And no concrete action has been taken against the very majority of those people whose accounts were found in Panama Papers or the accounts that came from Liechtenstein.
No proactive steps were taken by the government as per UN convention against corruption to get at the foreign accounts that Indians are holding in various tax havens across the world including Switzerland.
This it is clear that far from receiving freedom from corruption, in last three years we have seen the destruction of anti-corruption institutions and laws and we are headed into uncharted territories where the problem of corruption will become more serious in the times to come.
Tackling of this Problem is not difficult if there is the political will to do so. This essentially requires proactive for transparency under section 4 of RTI Act which requires all information with the government to be proactively disclosed putting it on public websites. Secondly, it requires setting up of a robust independent investigating agency against corruption. The CBI continues to remain what the SC described it as a caged parrot. Its former director Ranjit Sinha has been found to be corrupt.
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