Saturday, April 28, 2012

Prosecuting corruption in India

Last year India witnessed heated debates between those who want a powerful national anti-corruption ombudsman and those who are in favour of reforming the current decentralised anti-corruption machinery.

Social activist Anna Hazare has resumed his campaign, which resulted in the lower house approving an anti-corruption legislation in December 2011. And with the upper house of Parliament also likely to resume the stalled debate about anti-corruption laws, there might be more good news on the anti-corruption front.
Yet the idea of a national anti-corruption ombudsman is not new: the first inconclusive parliamentary debate on this issue dates back to the mid-1960s, when laws for the formation of national vigilance and investigation agencies were enacted. Since then, half of India’s states have formed anti-corruption ombudsmen, or Lokayuktas, under provincial legislation. So, in 2012, the best case for establishing a national anti-corruption ombudsman would be to prove that most of the existing state ombudsmen are operating successfully. An assessment of their performance is necessary in any case, as it would help foster better legislation. But there has hardly been any systematic effort to evaluate the performance of the Lokayuktas, their institutional incentives to fight corruption or India’s loci of corruption.

Comprehensive data obtained under the Right to Information Act (2005) about cases handled by the Lokayukta of Karnataka in India’s southwest between 1995 and 2011 indicates that the Lokayukta received 2259 citizen complaints and conducted 355 raids against 357 officials. The citizen complaints resulted in 2680 cases against elected and unelected officials of state government bodies, and 60 cases against non-officials. So, for every raid there were more than six cases in response to citizen complaints. Moreover, the data reveal that the share of raids has decreased over the years, which indicates that the legal power to initiate action (that is, to conduct raids on officials suspected of corruption) does not provide the anti-corruption agency with sufficient incentives to be proactive.

The analysis also indicates that institutional leadership is important and that time in office is a relevant factor, as fewer cases were initiated during the middle years of chief ministers’ and Lokayuktas’s tenures. Also, more cases were initiated during years of state assembly elections. It follows that neither political nor executive leaders have sufficient incentives to combat corruption in a sustained manner.

A closer look at performance shows that of 3097 cases filed in about 16 years, so far Karnataka’s Lokayukta has secured only 16 convictions. Its conviction rate (20.5 per cent of the 78 cases in which trials could be completed) is much lower than the recent rate of convictions in criminal prosecutions in anti-corruption cases in India (34–40 per cent). Given the poor image of the government and bureaucracy, it is tempting to assume that either sanction for prosecution was not given by the government, or the agency failed to complete investigations — but the data tell a different story. Investigation has been completed in about 80 per cent of the cases, with the average age of cases pending investigation being about 1.3 years.

Sanction was granted in about 95 per cent of cases investigated, and the average age of cases in which sanction is yet to be given is 1.8 years. Similarly, charge sheets have been filed in about 96 per cent of the cases in which sanction was granted, and the average age of cases in which charge sheets are yet to be filed is 2.6 years. Delays in the Lokayukta’s processing times start happening after this stage: more than 95 per cent of cases in which a charge sheet has been filed are under trial and the average age of cases under trial is more than five years old. The conclusion here is unequivocal: India’s overburdened legal system is the real bottleneck. Pending cases accumulate in under-staffed and under-equipped courts governed by an archaic legal system that can be easily manipulated to slow down the trial.

Therefore, any legislation that presumes the existing criminal conviction model will come up against the same environmental limits that confront the Lokayukta in Karnataka: the efficacy of the criminal justice system.

Without highly contentious legal reforms, an extremely powerful agency demanded by the civil society led by Anna Hazare can at best marginally improve rates of investigation and the filing of charges, but without securing more convictions. The price for this marginal improvement is too high because an anti-corruption ombudsman armed with sweeping powers could disturb the precarious balance of power among different arms and tiers of the government. In any case, if the root cause of corruption — the structure of state machinery — is not dealt with, even the most powerful ombudsman can only deal with corruption after the fact. The figures from the Karnataka Lokayukta indicate that the four essential functions of government (local governance, administration, social welfare and regulation) account for about 80 per cent of corruption cases, whereas state-owned economic enterprises account for less than 13 per cent of cases.

To conclude, tackling corruption requires a fundamental restructure of both the state’s core administrative functions and the criminal legal system, which delays prosecution. The role of anti-corruption ombudsmen needs to be overhauled to encourage and reward a proactive stance against corruption. Unfortunately, none of these issues is receiving due attention in current debates. East Asia Forum

Vikas Kumar is Assistant Professor of Economics at Azim Premji University, Bangalore.
Poonam Mehra is Assistant Professor of Economics at National Institute of Securities Markets, Mumbai.

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