When RTI Act 2005 was envisaged, it was placed before the Parliament as a normal bill. Government under pressure from people’s movements and groups did not adopt a backdoor method of ordinance to push through a progressive legislation. When the bill was placed in the parliament it was again referred to a standing committee, which invited suggestions from all over the country. For some, which included Meghalaya Right to Information Movement, it even paid for their travel to Delhi and stay there. All three suggestions made by MRTIM were included in the final version of the RTI Act. These three suggestions were a) Enlarging the scope of RTI Act to cover the states b) Including traditional institutions of local self government c) Not providing exemptions to listed security agency, when it came to the questions of human rights violations and corruption.
In this spirit, we think that the Commission pronounced by the Meghalaya government recently, should follow the route of consultation not the darkness of Ordinance. We think lawmaking especially the ones involving accountability and transparency in governance are too serious (and intellectually challenging) a matter to be left to politicians, bureaucrats and consultants, people who in general have contempt for democracy. Any law designed to fight corruption and initiate transparency in governance should be enacted in a transparent fashion and with wide public/citizen consultation.
In the first part of this essay, therefore, we examined the contexts of any institution designed to eradicate corruption. We suggested that any institution created to fight corruption should have five minimum features – independence of power, transparency in selection of its members, its pro-active powers to prosecute Chief Minister to Office Assistant and like RTI its accessibility to common citizens.
Based on these five minimums, we propose 15 concrete features of the commission, which we think, will make the anti-corruption commission an effective body, anything less would mean that the commission announced by the government would be an ineffective body designed to distract people’s attention. These features include some of the more progressive and effective ideas from various anti-corruption legislations already in existence in India.
1. All public servants should be under the purview of the Act. Anyone who is part of any Public authority or body or institution of self- government established or constituted by or under the Constitution; by law made by State Legislature or by notification issued or order made by the state Government, and would include any body owned, controlled or substantially financed by the government. It would also include non-Government organisation substantially financed, directly or indirectly by funds provided by the appropriate Government. This means that commission’s reach would extend from Chief Minister, Ministers, MLAs, and Bureaucrats to government contractors to crooked consultants, and even to office assistants.
2. The Commission should have pro-active powers to investigate and prosecute by looking into complaints about corruption, favouritism and abuse of power in/by public authority.
3. The status of this commission shall be constitutionally at par with the Election Commission and Information Commission meaning its activities remain outside the realm of governmental interference.
4. Like the RTI Act 2005, the Anti Corruption Commission Act should be retrospective in effect so that older cases of corruption can also be investigated by it.
5. It should be mandatory for the Commission to investigate into any cases of corruption filed by the complainant substantiated by documents procured through RTI Act 2005.
6. The Commission will have the powers of the court to summon and investigate. To help in its investigation it should have an independent investigative wing where police officers will be posted on deputation and will be selected by the Commission itself.
7. If after investigation, the Commission is satisfied that the public servant has committed any criminal offence, it would have powers to initiate prosecution without reference to any other authority. Any prior sanction required under any law for such prosecution shall be deemed to have been granted. Where, after investigation into the complaint, the Commission considers that the allegation against a public servant is prima facie true, the public servant concerned, if he is a Chief Minister or any other Minister or Member of State Legislature shall resign his office and if he is any other non-official shall be deemed to have vacated his office, and, if a bureaucrat or official, shall be deemed to have been kept under suspension, with effect from the date of the declaration made by State Chief Vigilance Commissioner till such time the court pronounces the judgment in the case.
8. A Special Fast Track Court on Corruption has to be instituted and attached to the commission to initiate prosecution based on charge sheet filed by the commission The court shall give decision within three months and initiate recovery of all money and losses incurred from the corruption. To help in prosecution, the commission shall employ its own team of lawyers.
9. The format of complaint procedures should be simple. The commission shall provide secrecy and protection to whistleblowers who want to make complaints of corruption.
10. This commission would also maintain an asset register for the public servants that will be updated annually. This would ensure that all instances of disproportionate asset could be quickly identified. Politicians at least have to declare their assets before elections, but the bureau(merito)crats seem to be curiously exempt from this.
11. This commission shall initiate regular social audits of every government scheme, which will mean that citizens can nip the corruption at the source itself.
12. The Commission should be a multi-member commission and the Commissioners should get only one term as commissioners.
13. The Selection process should be at two levels – (a) There should be a Screening Committee consisting of persons from society who have a reputation of having integrity, distinction and who have contributed to society. The screening committee will put up potential names of persons to be considered for the Commission. This list will then be widely publicized giving the public an opportunity to file claims and objections, only after which the names will be finalized. (b) After the Screening Committee puts up names, a Selection Committee consisting of the Chief Minister, Leader of the Opposition and 2 other independent persons from the Society will select from among the nominees.
14. The Commissioners will not hold any other office while they are commissioners. They shall not be or have been a member of the Parliament or be a member of the Legislature, District Councils and shall not hold any office or trust or profit (other than his office as State Chief Vigilance Commissioner or State Chief Vigilance Commissioner) or be connected with any political party in any form. Before s/he enters upon his office, s/he would stop carrying any business or practice any profession. After their term is over the Commissioners shall be ineligible for any state government assignment or appointment that is required by law to be made by the Governor. They shall also not be allowed to seek any further employment to any office under the Government and Private Sector.
15. And finally, how will this commission be funded? Take 5% of all government schemes and put it for running this commission. By stopping the corruption and saving the money in implementation of these schemes, 5% will in no time pay for itself.
We are sure that our wish-list for the commission leaves many important features unlisted, but then we hope that citizens who know better and are more imaginative than any committee or thinktank will add to this discussion and let the political class know it. This is what democratic participation means, not tyranny of experts.
(We wish to thank friends from Meghalaya Right to Information Movement, especially Michael Syiem, Elegius Sawian, Sadon Blah and Shekhar Singh of National Campaign for People’s Right to Information, for contributing ideas for this essay)