Saturday, 26 February, 2011

Bribeless In Bihar

Bureaucrats in India’s most corrupt state are facing the heat from their own chief minister

by K.P. Narayana Kumar

Raghuvansh Kunwar could not believe it. For the motor vehicle inspector based in the Aurangabad district of Bihar, the news item in the Hindi daily was more chilling than the December morning. The government was going to throw him out of his
house and start a school there. The announcement was made by Bihar’s human resources development minister, P.K. Sahi,
at a public meeting.

“I was shocked to read the news item,’’ says Kunwar in a tone that barely conceals fear. “I have lived in this house for 20 years
with my wife, children and three brothers and suddenly I was being told to hand over my house.”

The vehicle inspector did not realise then that he was the first prey caught in a new anti-corruption drop-trap devised by
the state government and hailed as a model for other states to follow. Kunwar had been booked under a new law allowing
for summary confiscation of property of government officials found to be having more assets than their income justified.

The state vigilance department, the government’s internal watchdog, had found in 2008 that Kunwar owned property
worth Rs. 54 lakh but was unable to explain how he could afford it. The department has lined up 18 more such cases to
confiscate property valued at Rs. 21 crore before the special courts created under the new legislation, the Special Courts
Act 2009. It is reviewing another 87 cases for possible confiscation of assets.

Kunwar’s case was the first headline-grabber from the Nitish Kumar regime that returned to power with a resounding
mandate that many say was an endorsement of the chief minister’s reputation as a leader with a cause. In its first innings, the administration locked up 54,000 people in a bid to break the criminal-politician nexus that had plunged Bihar into such an anarchic mess — a place that everybody knew where it was but nobody wanted to go, even those who had fled from their ‘native place’ for greener pastures. The third axis in the unholy nexus was the government official for whom the general public is the golden goose.

Blunt Axe No Good

It was not that Nitish Kumar avoided them in his first term. His attempt was to hit all three simultaneously, though the
babudom — cocooned in rules and procedures — turned out to be the most resilient. Kumar set up a Special Vigilance Unit (
SVU) in 2006 to go after the big fish in the government. It was a crack team of former Central Bureau of Investigation (CBI)
officials with a separate headquarters on the rather quirkily named Serpentine Road. The unit soon made headlines as it caught several senior government officials such as a police chief Narayan Mishra and state drug controller Y.K. Jaiswal, with enough wealth to finance the annual budgets of entire villages. State vigilance squads trapped about 400 government officials in the next four years. However, much of it came to nothing as only two of them have been convicted so far. News reports suggest that even the elite SVU managed to file only five First Information Reports (FIRs) in four years.


Meanwhile, Nitish Kumar was regularly besieged by villagers with tales of corruption on his frequent countryside tours. In
Bihar, big ticket deals are few. The corruption that is endemic is petty. For the general public, it is difficult to get government
certificates and entitlement documents without paying touts. Unlike big deals where money is often received and stashed in
numbered accounts in safe havens or as stocks and bonds, in Bihar the nature of corruption is localised. Ill-gotten money
hardly leaves the country and is invested mostly in real estate or gold. That means empowered officers can easily help track it
down. A vigilance officer pointed out the case of a milk-vendor in Patna. The man is said to own a dozen cars, wealth that he
acquired by laundering money for government officers and politicians. “Most government departments have their own
paan-wallahs, ice-cream vendors and traders who act as collectors for the babus,” says the officer who did not wish to be
identified.

Bureaucrats who own black money typically invest it in real estate projects outside Bihar; Bangalore and Noida are particular favourites. But junior level officers such as block development officers, panchayat members and clerks keep their cash in bank accounts and lockers apart from building houses in their village. Having cash stashed in the mattresses also helped if they got caught. They could use the same money to pay off investigators and the game could go on.

It was clear to Nitish Kumar that merely catching a culprit was not enough. A major handicap was that under the Prevention of
Corruption Act, vigilance officials had to get clearance to prosecute an errant bureaucrat from his own department. That took time. He realised that the only way to deter corruption was to take away the wealth itself — ASAP. Kumar put his then attorney general P.K. Sahi on the job. (Sahi would go on to become Nitish Kumar’s minister in the second term).After consulting experts and studying the provisions of the Prevention of Corruption Act, Sahi prepared a draft bill by the end of 2008 and it was passed by the Bihar Assembly in February 2009. It then languished in the union home and law ministries for a year. The delay often prompted Bihar politicians to snigger that the Centre did not want Nitish Kumar to have one more feather in his cap. “The Centre kept asking for one clarification after the other. The delay meant that we could not swing into action before the state elections and the CM himself had to repeatedly follow-up with the Centre,’’ says Sahi. The Bihar Special Courts Act, 2009, was eventually signed into law by the President in March 2010.




Slash And Burn

The Bihar law is not a pioneering one. That credit goes to Orissa, which passed a similar law in 2008 and also set up two special courts. However, it was challenged in court and until recently its validity was uncertain. In Bihar, the Act comes into play when investigating agencies are convinced that an official owns assets in excess of his known sources of income. Now, even as it pursues a corruption case against an official, the state separately seeks to take control of the assets owned by the person. Bihar
has set up six special courts that exclusively deal with this. The vigilance department files a declaration with a special
court that the target has amassed unexplained wealth. The special courts then conduct speedy trials and decide within six months whether the property should be confiscated or not. The property would be returned with interest (at 5 percent
annually) if the person is acquitted.

The Prevention of Corruption Act does not provide for attachment of property and instead has a provision enabling a judge to also impose a fine depending on the value of the ill-gotten property. Former CBI director Joginder Singh says the nation should follow Bihar. “If the property of the accused is confiscated in advance, it will make a huge difference. This will help serve as
a deterrent to officers and also ensure that the accused are not able to influence investigations using money,” says Singh, who has investigated several high-profile cases of corruption, including the fodder-scam in which Lalu Prasad Yadav was prosecuted. A.K. Chauhan, principal secretary, vigilance, says that he has not come across any instance of politicians or high-level officials trying to influence a case. “They know that we report to the CM. So there has not been any attempt so far,” says
Chauhan, who has earlier worked as secretary for co-ordination in the state cabinet and is considered to be someone who
enjoys the chief minister’s trust.

“MLAs have also been warned that they should not call up officers directly and try to influence these cases. The Chief
Minister has made it clear within his own party as well that he will not tolerate anyone trying to influence the officers,”
says Rajya Sabha member Ali Anwar, who is considered to be a close confidant of Nitish Kumar. The results are yet to
show, but the tremors are already being felt.Of course, the law has been challenged in court. Narayan Mishra, the police chief booked by the SVU and facing confiscation of property, has moved the High Court arguing that the law is unconstitutional. “It is a draconian rule with no regard for constitutional rights,” says Mishra. Lawyer Abhinav Shrivastava, who represents six officials
who have challenged the validity of the Act, says the main problem with the legislation is that there is no laid down
procedure to decide which cases under the Prevention of Corruption Act would be transferred to the special courts for attachment. “This would make the entire process subjective and arbitrary,” says the lawyer.A state bureaucrat, who spoke on condition of anonymity, said that there was palpable fear among officials after the government lined up cases for confiscation of property. “The officers are in fear of a crackdown and that is good for the health of the system,” he says.


Hindi daily Prabhat Khabar reported that over Rs. 100 crore had been withdrawn from banks in the capital, Patna, in the fortnight following the confiscation of Kunwar’s property. A top bank official confirmed that there has been an increase in
withdrawals from bank branches across the city but was unsure whether panic-driven officials were behind the trend.The state capital, which had acquired a reputation as a crime-hub during Lalu Prasad’s regime, also gained a reputation for scams and middlemen as Bihar led the list of corrupt states in almost every survey carried out between 2000 and 2005.


Renewed Growth


Nitish Kumar’s two terms, when he first re-established law and order and then began weeding out corruption, have brought
new hope to Biharis in the state and those living outside. For long, Patna seemed to be relatively untouched by India’s economic transformation. There are no glitzy malls or international brands that embellish the other cities. There are no hip eating joints or clubs. There is no evidence of any sort of nightlife or even entertainment for families.But the city is changing, slowly. Women move about fearlessly in areas where they would not have dared to venture out just a few years ago. People come out for
shopping and socialising. There is a clear buzz of a consumer economy blooming.The story of change is particularly evident in the new apartment buildings springing up across the city. Real estate developer Narendra Kumar says that property rates in
Patna are comparable to rates in Noida as there is a huge demand and there is shortage of land.“The boom is not entirely fuelled by black money and there is a genuine increase in demand,” says Kumar, who has built and sold over a dozen apartment complexes in the city in the past three years. He says most of the money coming into construction is from people of Bihari origin who live outside the state but are now beginning to hope for a prosperous Bihar. Academician Shaibal Gupta, considered an expert on governance in Bihar, says tough times are ahead for bureaucrats. Next the state is planning to enact a Right to
Services law to ensure efficient government service. Officials will be punished for failure to provide time-bound service.
“There is a lot of pressure on the bureaucracy now like never before,” says Gupta.

This article appeared in Forbes India Magazine of 11 February, 2011

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