Opinion Lessons for Lokpal,from Lokayukta

The need to establish a strong Lokpal that initiates criminal investigation and process has been a key demand in the current debate. The Karnataka Lokayukta had the power,under the Prevention of Corruption Act,1988,to investigate cases of corruption and was recently endowed with suo motu powers to initiate criminal investigation. However,between 1995 and 2011,Karnataka’s Lokayukta carried out only 357 suo motu raids against individual officials but received and responded to over 2,159 complaints against 2,681 officials (and 59 private persons). In other words,for every six cases investigated in response to citizen complaints,only one is initiated by the department suo motu. Further,the percentage of raid cases in the case docket has decreased over the years. Hence,the legal power to initiate action does not determine whether we have a proactive anti-corruption agency. The incentives for administrative action seem to lie elsewhere. Institutional leadership is seen to have a significant impact on the agency’s performance as more than 66 per cent of the raid cases were initiated between 2006 and 2011,when Justice Santosh Hegde was the Lokayukta.

There have been several estimates (through public perception surveys or by public disclosure websites) of the departmental distribution of corruption in India. A department-wise analysis of prosecution of corruption by the Karnataka Lokayukta reveals that more than 80 per cent of the trap cases are related to four essential functions of government: local government (24.06 per cent),administration (37.65 per cent),welfare (17.61 per cent) and regulation (2.54 per cent). The rest of the cases are divided between agriculture and irrigation (3.76 per cent) and economic activities (12.75 per cent). Analysis of raid cases reveals a similar departmental distribution. This distribution suggests that the withdrawal of the state from non-core activities is not a structural solution to eliminate corruption.

The distinction between petty and grand corruption is a well-established one in the academic literature on corruption. Further,it is a contentious issue in the Lokpal debate with respect to the inclusion of Group C and D officials. In Karnataka,nearly half of the officials against whom Lokayukta has proceeded against are officials in the lower bureaucratic scale while about 10 per cent are senior officials. Only 0.8 per cent belong to the IAS,IPS,IFS and KAS cadres. So it is likely that the case docket of a Lokpal that includes officers of all categories will be overwhelmed by cases against the lower bureaucracy. While the current debate seeks to emphasise the equal blameworthiness and legal culpability of petty and grand corruption,the institutional impact on the allocation of scarce prosecutorial resources will be a serious one.

The creation of a strong investigation and prosecution arm has been central to the Indian debate on the Lokpal. It is suggested that either refusal of sanction for prosecution or the failure of the agency to complete investigations are the key problems that a Lokpal should be designed to avoid. In Karnataka,our analysis leads to the conclusion that neither of these problems are the core problems for the anti-corruption agency. In about 80.5 (52.2) per cent of the trap (raid) cases investigation has been completed and this does not vary significantly depending on the rank of official being investigated. This high investigation rate is particularly impressive when we consider that the cases pending investigation are on an average about one year old. Further,about 95 per cent of all investigated cases have received sanction for prosecution. Hence,the government’s sanction for prosecution has not operated as a significant limit to the Lokayukta’s functions. Charge sheets have been filed in over 97 per cent of the cases in which sanction for prosecution has been obtained. This processing rate compares favourably with the rate at which criminal cases in general are processed in India. Hence,the legal and administrative model of the Karnataka Lokayukta for the complaint and investigation stage satisfactorily resolves most of the issues that have dominated the Lokpal debate.

The core of the problem for the Karnataka Lokayukta is the criminal trial,over which it has little control. Over 95 per cent of the cases in which charge sheets have been filed are under trial. The cases under trial are,on an average,more than five years old. In any event,only 16 cases overall have resulted in convictions. This is a conviction rate of 20 per cent 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 per cent. Hence,the key problem at the core of a criminal conviction model for tackling corruption in India is the trial stage.

The choice of a criminal conviction model as the best anti-corruption strategy is at the core of the Lokpal Bill. We learn from the Karnataka Lokayukta’s experience that it is condemned to fail to achieve its primary purpose: the criminal conviction of corrupt officials. Unless we radically reform the criminal justice system,a strong Lokpal will only assuage public anger and satiate our urge for vengeance.

Narayana A.,Sudhir Krishnaswamy and Vikas Kumar are faculty at Azim Premji University,Bangalore