DECEMBER 02, 2014

By Naresh Minocha, Our Consulting Editor

IT is a tale of two different perceptions about corruption in India. Many citizens are eagerly awaiting Transparency International's Corruption Perception Index (CPI) 2014 slated for release on 3rd December to know whether the country has slipped a few notches below its present 94th rank (with a paltry score of 36 out of 100) in the global clean ranking of 177 countries. The two most perceived clean countries perched atop scored 91 marks each under CPI 2013.

There are, on the other hand, no takers for the Indian Government's maiden self-assessment report (SAR) on compliance with certain provisions of United Nations Convention Against Corruption (UNCAC). SAR was prepared during the corruption-tainted UPA regime.

Without seeing the report, one can safely conclude that SAR would be a muted attempt to describe the endemic and institutionalized corruption that thrives in the country. SAR should be accepted with a pinch of salt as it has been written by the Department of Personnel and Training (DOPT), which serves as the nodal agency for Indian operations under UNCAC.

DOPT had earlier failed to attract adequate number of reputed consultancy agencies and NGOs to undertake SAR study on its behalf, though it twice solicited bids for the study.

SAR should have been conducted by Central Vigilance Commission (CVC). It should be made the nodal agency for anti-bribery initiatives pending constitution of Lok Pal.

In January 2014, the Government submitted SAR to United Nation's Office on Drugs and Crime (UNODC), which serves as a Secretariat for UNCAC. Neither PIL entities nor RTI activists have got hold of SAR for putting it in public domain. Nor has NDA made the report public. Nor has it disowned SAR as a white-wash job of UPA. After all, perception about corruption is as important as corruption.
SAR's non-disclosure is at variance with United Nations' expectation from UNCAC signatories to make reports public and place them in Parliament for a discussion on anti-corruption initiatives.

In a communication to the recently held G20 Summit in which Prime Minister Narendra Modi participated, the Government disclosed: "Self Assessment Report has not been published. Civil Society/business was engaged during the review process and they were consulted before finalizing the Report for which meetings were held on 29.10.2013 and 30.10.2013. Country visits have been allowed however, country visits have not been held so far to review India."

Modi Government has thus so far overlooked BJP's Lok Sabha Manifesto that promises 'Open Government and Accountable Administration.'

It should consider advising UNODC to upgrade the proposed 'peer review' of SAR by Uganda and Kazakhstan into a full-fledged national report on compliance with all provisions of UNCAC.

The Modi Government has nothing to fear from the comprehensive review of India's anti-corruption legal, regulatory and implementation mechanism. In any case, the country's image has been sullied over the years by several global indices including the ease of doing business index published annually by the World Bank group.

Requesting for a scale-up of peer review into a national report on UNCAC compliance would be an opportunity for the Government to prove its commitment to fight corruption. It can later use the national report as the benchmark to unveil a new anti-corruption strategy.

Mr. Modi, who has articulated his aversion towards graft, might like to reflect on a pertinent observation made by United Nations Development Programme (UNDP) in its 'Guidance Note: UNCAC Self-Assessments - Going Beyond the Minimum'

It says: "Strong political will is undoubtedly the most critical success factor if an UNCAC Self-Assessment is to be useful as a reform tool. Being self-critical is not easy. It requires strong and courageous leadership to acknowledge and publicly identify weaknesses in national legislation, institutions and/or enforcement efforts. Such leadership needs to come from national leaders, both at the political and technical levels."

Can there be a more courageous leader than Mr. Modi among the present lot of politicians? Certainly not.

Time is thus ripe and appropriate for Mr. Modi to extend the Swachh Bharat Mission from the civic domain to the governance domain. He ought not to wait for pinpricks by Anna Hazare. He should be on the guard against a new sting operation from rookie politician Arvind Kejriwal.

As put by UNDP, "States Parties (signatory countries) are invited to go beyond the minimum and conduct comprehensive UNCAC self-assessments in order to promote national reforms and to prepare for an eventual review under the Review Mechanism."

Before analyzing STR and NDA's failure to take decisive steps against bribery during the first six months of its tenure, a bit of background about STR is required.
The need for STR arose from ratification of UNCAC by India in May 2011 after five-and-a-half years' delay. UNCAC was adopted by the UN General Assembly in October 2003 and made effective in December 2005.

India's compliance with UNCAC is being studied in two cycles. The present STR thus relates to compliance with UNCAC's Chapters III (Criminalization and law enforcement) and IV (International Cooperation). The country's compliance with Chapter II (Preventive Measures) and Chapter IV (Asset Recovery) would be assessed under the 2nd cycle. Each SAR is reviewed by two other countries. Both the selection of the countries for SAR and for peer review is done through draw of lots by UNODC.

In reply to a 32-page questionnaire put by G20's Anti-corruption working group, the Government has admitted that it has to amend the Prevention of Corruption Act 1988 to meet UNCAC standards by providing "more specific language criminalizing the international offering, promising or giving of a bribe whether directly or indirectly".

It says: "Using a general offence of abetment/attempt to cover giving /offering/promising/soliciting a bribe is incompatible with international standards."

It continues: "The UNCAC enjoins that the promise, offering or giving, to a public official, directly or indirectly, of an undue advantage, for the official himself or herself or another person or entity, in order that the official Act or refrain from acting in the exercise of his or her official duties, be made a criminal offence."

It adds: "Accordingly, to meet the said obligation it is proposed to substitute a new Section 8 in the Prevention of Corruption (Amendment) Act, 2013. With the above proposed new definitions of bribery both as regards the solicitation and acceptance of undue advantage and as regards the promise, offering or giving to a public official, directly or indirectly, of an undue advantage are found to be comprehensive enough to cover all offences of bribery as defined in UNCAC."

The Ministry of Personnel, Public Grievances and Pensions' believes that most Indian laws are "substantially compliant" with most of the mandatory provisions of UNCAC.

In its annual report for 2013-14, the Ministry has, however, noted: " the existing laws have been found to be deficient in relation to - (a) the requirement relating to criminalization of bribery of foreign public officials; (b) the requirement relating to criminalization of private sector bribery; and (c) the requirement relating to criminalization of bribe-giving (supply side of bribery)."

Modi Government thus must overcome this governance deficit. It must translate BJP Manifesto's anti-corruption commitment into action by fast-forwarding enactment of two anti-bribery lapsed bills - Foreign Public Officials and Officials of Public International Organisations Bill, 2011 and The Public Procurement Bill, 2012.

The latter bill is crucial in the battle against corruption under Public Private Partnership (PPP) projects. The scope for improvement in The Public Procurement Bill, 2012 has been elaborated by UNODC's in its report 'India: Probity in Public Procurement'.

It is anybody's guess whether these lapsed bills would be fine-tuned or introduced as such in Parliament. NDA has not yet indicated when it would re-introduce the lapsed bills in Parliament.

In addition to these legislations, the Government should unveil draft bill to amend Indian Penal Code for preventing and penalizing rampant corruption in the private sector.

The Government should also enforce Whistleblowers Protect Act 2011 that was notified in May 2014. The enforcement has reportedly been delayed by NDA Government's justifiable desire to keep information relating to national security out of the purview of this law.

Yet another important issue crying for attention is the strengthening of lame-duck CVC. It has been reduced by NDA to a one-member panel due to delay in filling the two vacancies.

NDA should also embrace and implement CVC's draft National Anti-Corruption Strategy (NACS) that was issued in August 2010. Scams tainted-UPA slept over it for obvious reasons. Can NDA afford to behave like UPA?

It should act fast to honour BJP Manifesto's anti-bribery commitment to the Nation - "We will establish a system, which eliminates the scope for corruption."