It is a bizarre coincidence that on the one side a section of the Indian civil society has locked horns with the government of India over the question of inclusion of the Prime Minister within the ambit of the Lokpal bill while the common populace of Italy are facing a similar situation of disappointment and dismay at the manner in which the trial of the Prime Minister Silvio Berlusconi is being conducted at a painfully slow pace.  It may be recalled that the Italian Prime Minister Silvio is embroiled in a series of legal battles facing numerous acquisitions of tax fraud, corruption, bribery, embezzlement and prostitution charges.  A parallel may also be drawn between the two countries to the extent that the criminal justice administration requires immediate and urgent reforms both in India and many other developing countries including Italy.  While trial against Italian Prime Minister is at least proceeding while he happens to be in office whereas the question is only being debated in India by the Government and a section of the civil society as to the inclusion or immunity to the prime Minister’s office under the Lokpal bill.  India has witnessed a series of attempts at reforming her political, administrative and judicial structures. Lokpal Bill has been in abeyance for the last more than three decades and has always been a battleground amongst the political elite, diverse sections of civil society and media over the past many years.  The question that is being thrown around is whether the Prime Minister should be in the ambit of the Lokpal bill or not.  The proposition appears to be naïve in light of the fact that our prime minister is already within the ambit of all the anticorruption laws by virtue of being a public servant. The question of the questions is what is being done about the enforcement of the existing anticorruption laws/mechanisms/institutions and their strict application to one and all, high and mighty including the Prime Minister.

While the question of  good governance and reforms has always been a burning question in the Indian context especially in view of the long-standing political, electoral and administrative reforms overdue In our country.  The people of India have long been waiting to see that their dreams of achieving social economic, political and cultural fulfilment as promised to them by the constitution is actually realised. This can be made possible when we have an effective, efficient and transparent mechanism in place to deliver justice to doorsteps of an ordinary citizen.  The delivery of justice and administration of laws in our country is extremely poor and lopsided. The institutions have deliberately been subverted and taken over by many a unscrupulous and criminal Mafiosi’s resulting in poor delivery of justice and rising frustration and disillusionment amongst the masses in general and youth in particular.  

 While it is also being viewed that the questions of immunity to the Prime Minister from lokpal bill is being debated needlessly as the Prime Minister is already within the ambit of the laws of the land.  While the real compulsion is to strengthen and enforce these existing laws which have the clear penal provisions of punishment to any public authority including the office of the Prime Minister.   The enforcement of the existing laws is possible through a strong political will which can be achieved largely through drastic and comprehensive electoral and political reforms?  As the maxim goes howsoever high you may be the law is always above you.  The pointless clamour for the inclusion of the Prime Minister in the ambit of Lokpal Bill is creating an undesirable impression on the minds of the people as though the Prime Minister is a higher soul compared with the ordinary folks of the country and he deserves special treatment in the application of laws and statutes enacted by our Parliament. Those who are raising the issue about this should realise that it is here only in our country that a former Prime Minister Shri P.V. Narsimha Rao was charge sheeted in the year 1997 along with 11 others for bribery and corruption. The court found him guilty and sentenced him to three years in prison though after he demitted his office. But no law prevents to punish a public servant in our country while in office.  Even the highest court in the country has unambiguously pronounced in many of its judgements that criminal laws of the land are equally applicable to one and all.   The very fact that the prime minister holds an extremely responsible position of power and authority and the role of a public servant should make him more accountable, answerable and liable for all his acts of omission and commission. The hollow rhetoric about the inclusion or exclusion of the Prime Minister is   may also be viewed as a red herring and a diversionary tactic to deflect the attention of the people from the real issues facing our nation today.   Merely that the prime minister occupies a political office does not accord him a license to  indulge in corrupt practices only because for a certain time he or she carries the title “Minister” or “Hon’ble  Prime Minister”. Westminster in UK functions on the unwritten norms of parliamentary democracy.  There is no written constitution and the members are expected to exhibit the highest standards of conduct being the honourable members of the House of Commons. Without even a written constitution, Westminister severely punished David Laws, a senior and prominent member of parliament for financial irregularities and it cost him his job as treasury’s Chief Secretary for wrongly claiming his expenses.  David Laws had to go in May 2010 as his name surfaced In the ‘Expenses Scandal’ in the Westminster.

There is another view making rounds that the Prime Minister should be brought in the ambit of the Lokpal bill, but he could be proceeded against only after he demits his office. In the jargon of the criminal investigation, evidence is one of the most evaporative commodities. If anyone including the Prime Minister is allowed to function in the public office even after committing serious corruption, there is every possibility that he will tamper and destroy the evidence against him. The initial phases of investigation after the occurrence of a crime are critical and decide the future course of an honest and fair investigation. The course of any investigation shall largely be decided by the material evidence collected immediately after the occurrence of an offence which is a well-known principle of criminal investigation/inquiry or justice administration. The chances of offenders being punished will increasingly diminish if he is allowed to enjoy his power, privileges and the authority of his office.  This will amount to facilitating and abetting the offenders and criminals while hampering the job of an honest and fair investigation into serious crimes against society. There is no credible justification to act against an accused or offender conditionally only after he demits his office. It will only amount to encouragement to a crime that has been committed by the holders of high offices and will defeat ends of justice. It is like a thief being allowed to escape after having been caught in the middle of the act with the hope to catch and punish him after five years. The proposition appears not only to be absurd but also completely prejudiced to the established principles of justice.

While not undermining the importance of enactment of new laws with the changing socio economic and political environment, It is equally important to note that unless the existing laws are fairly and scrupulously enforced,   their strengths and shortcomings shall be difficult to be judged and it is only after examining their operational parameters that they could be taken up for further restructuring, remodelling and enhancements.. The focus instead should have been on the implementation and enforcement of existing laws than merely on the enactment of a new law.  This is not to suggest that new laws should not be ventured at all, they must be but not at the cost of replication of the existing legal structures.
  Tackling corruption in high places is an extremely sensitive and critical issue concerning all of us and it should not receive a perfunctory treatment as has been projected by a section of civil society and media in the context of the Lokpal Bill.  It is extremely significant that such bills having wider implications for society at large should be worked out in wider consultation with the people and diverse civil society groups in different parts of the country.  No one can claim exclusiveness and hegemony in the fight against corruption. The issues regarding malaise of corruption should not be seen with a certain prefabricated microscopic vision rather needs to be dealt wth holistically. The menace of corruption in high places requires a multi-pronged and multidimensional, Systematic and calibrated approach which requires a serious diagnosis of the entire gamut of issues connected with corruption in high places.  Political corruption is the fountainhead of all forms of corruption in the country and only comprehensive electoral and political reforms would provide a viable solution to an ever escalating incidence of criminalisation of politics and public institutions. It is only through meaningful electoral reforms that we can ensure barring the entry of criminals in politics which assumes higher priority than even enacting an anti-corruption law in the prevailing scenario in the country.  The enactment of an anti-graft law will is an extremely important and relevant issue but even more important perhaps is the enforcement and strengthening the existing laws coupled with immediate requirement for comprehensive political and electoral reforms in order to flush out criminal politicians.  Unless we have men of integrity heading our political and constitutional institutions, it shall be difficult to ensure the enactment of stringent anti-corruption laws, and if at all enacted through pressures groups may face impediments during their fair enforcement.   There are many legislative enactments fairly well intentioned but there is no political ill to enforce them.  One such act is The Benami Transactions Prohibition act of 1988 in respect of which even the rules have not been framed ever since its enactment.  The prevention of corruption act 1988 is also a fairly well-structured law but its enforcement is questionable due to lack of political will amongst the corrupt and criminalised political elite in the country. The income tax act of 1951 is equally well placed when it comes to its stringent provisions of criminal prosecution that can be launched under the Act in cases of wilful tax evasion but how often have these penal provisions been enforced remains a million dollar question. It is only after the laws are honestly and adequately enforced that they can be tested for their strengths and shortcomings. After the strengths and weaknesses are discerned, then only these laws can be further amended, enhanced, restructured or re-enacted. 

The history of exemptions to certain offices especially in matters related to taking measures or making laws for tackling corruption has proved counterproductive in our country. The provision of the single directive In the CVC act provides protection against prosecution to all officers of the rank above joint secretary charged with   corruption and serious frauds. Such exemptions have only led to an open licence to the public servants for committing more acts of bribery and corruption while enjoying the patronage, protection and ware withal of the high offices. India is already bleeding heavily under the increasing load of rampant corruption in almost all spheres of public life and cannot provide any more exceptions to exclude officials and public servants in high places including that of Prime Minister from application of anti-corruption laws such as Lokpal. If Italy can proceed to put a serving Prime Minister on trial in a court of law, why should India hesitate to enforce the rule of law on the big fish.  The question however is one of fair and free enforcement of existing laws and rejuvenation of existing institutions which seems a far cry without comprehensive electoral and political reforms.

(The author is a serving senior IPS officer and the views expressed here are purely his personal)