[Reader-list] 'Radical idea' for Lokpal bill

[A. Mani]

http://www.thehindu.com/opinion/columns/sainath/article1712689.ece
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Bribes: a small but radical idea

P. Sainath

To ask a people burdened with systemic bribery to accept bribe-giving
as legal is to demand they accept corruption and the existing
structures of power and inequity it flows from.

Let's get this right. The Chief Economic Adviser to the Ministry of
Finance, Government of India, wants a certain class of bribes
legalised? And says so in a paper titled “Why, for a Class of Bribes,
the Act of Giving a Bribe Should be Treated as Legal.” The paper is up
on the Finance Ministry's website:
http://finmin.nic.in/WorkingPaper/Act_Giving_Bribe_Legal.pdf

And the author, Kaushik Basu, modestly describes his contribution as
“a small but novel idea.” And again, as “a small but fairly radical
idea.”

The timing is radical. Something like a plan to make sailing less
risky issued by the Chief Officer of the Titanic between the first and
the second icebergs. (The Skipper being too busy trying to stay afloat
in all that gushing floodwater from CWG, CVC, CAG, 2G, DB, Radia,
cash-for-votes, WikiLeaks, illicit funds overseas, Supreme Court
censures and more.) And with the country sick of corruption — a giant
issue in the polls in States like Tamil Nadu.

There are “harassment bribes” and there are “non-harassment bribes,”
says Dr. Basu. He is mainly concerned with the former. Consider an
exporter who has fulfilled all formalities but “is asked to make an
illegal payment before getting a customs clearance.” Or the bribe
someone gives an income tax officer to get one's tax refund cleared.
All these are “harassment bribes.”

Dr. Basu's solution? “The central message of this paper is that we
should declare the act of giving a bribe in all such cases as
legitimate activity. In other words, the giver of a harassment bribe
should have full immunity from any punitive action by the state.” He
does clarify that the “act of bribery is still being considered
illegal.” But he is suggesting a change in law. He argues that the
“entire punishment should be heaped on the bribe taker and the bribe
giver should not be penalised at all, at least not for the act of
offering or giving the bribe.”

The Chief Economic Adviser even says where bribery is proved in court,
the bribe should be returned to the giver. At present, the bribe giver
and taker share a “collusive bond” since both have violated the law.
Giving the former immunity, he says, will break that nexus. In his
view, the changed law would incentivise the bribe giver to rat on the
bribe taker, since he himself faces no punishment. Presto! A ‘dramatic
drop in the incidence of bribery.' As Dr. Basu proudly says: “The
reasoning is simple.” It is, actually, simple-minded.

The Chief Economic Adviser dresses up these arguments for middle
classes forced to make payoffs. For instance when a person allotted
subsidised government land “goes to get her paperwork done ... she is
asked to pay a hefty bribe.” Yet, his law will in no way curb bribery
where scarcity exists. For instance putting a child into school where
seats are hard to get. Or even getting that flat or the land he speaks
of, allotted. Raising the stakes Dr. Basu's way could mean the victims
face heavier demands. After all, the bribe taker needs to be
compensated for the higher risk he now runs. And there is no focus at
all on government failures that lead to scarcity. Nor on priorities
that gift the corporate sector over $103 billion in write-offs in just
this budget. Nor on spending policies that cut food subsidies and
punish the poor.

The idea of legitimising this culture is an obscene one. Bribery is
systemic. To ask a people burdened with it to accept bribe-giving as
legal is to demand they accept both corruption and the existing
structures of power and inequity it flows from. This is a perverse
idea. And it is nowhere as “novel” as he makes it out to be. As early
as the 1960s, Gunnar Myrdal trashed such claptrap for seeking to
create “resignation and fatalism” amongst the poor and less
privileged. And for projecting such “asocial behaviour” as normal.
Decades ago, debates on this idea ended up acknowledging how morally
corroding such practices were. But I guess with a government as
embroiled in corruption as the one he advises, there's a need to
exhume the corpse of that argument and dress it up as “novel.” Dr.
Basu dolls up corruption — for that is what bribery is — at precisely
the time the Indian people are showing their revulsion to it.

Dr. Basu's “small but fairly radical idea” suits those who can pay.
And devastates those who cannot. Those who can and do make payoffs are
unlikely to upset a system that works for them. Where bribery is
systemic, the “collusive bond” of giver and taker will strengthen if
this dishonest idea becomes a law.

Take this assumption: “Under the new law, when a person gives a bribe,
she will try to keep evidence of the act of bribery — a secret photo
or jotting of the numbers on the currency notes handed over and so on
— so that immediately after the bribery she can turn informer and get
the bribe taker caught.” Poor people taking secret photos with hidden
cameras (available at the nearest malls) and subtle pens which mark
notes so the bribe taker won't know? How dumb an idea is that? The
assumption that bribe givers will ring the bell after the bribe
ignores the realities of power equations in our society and assumes
access to legal recourse. Where the giver is poor, Dr. Basu's law will
favour the taker. Where the giver is rich, it will favour the system
of bribery.

Consider these situations:

The perpetrators of the cash-for-votes scam that corruptly kept this
government in power would walk scot free in Dr. Basu's law. (Maybe
that's the intention?) Can you see them saying, ‘hey, these are the
MPs who took our cash?'

What if a 2G scamster says he felt legitimately entitled to spectrum
and paid “harassment bribes?”

It would be fine for candidates to buy off voters during elections.
After all, it is the takers who are to be punished, even if they turn
out to be a few million.

Will a person offering a bribe to a judge be punished if the latter
reports it? If the judge accepts the payoff, will the giver report it?

A bribe giver exploits the drug-abuse habit of an official. The drug
peddler has full immunity from any punitive action by the state?

An Indian agent of a foreign intelligence outfit successfully bribes
Defence Ministry officials. Would that agency then say ‘Aha! They
accepted kickbacks?' Great! We lynch the officials and congratulate
the espionage ring — which is also entitled to its money back.

These situations would be brushed off by Dr. Basu as “non-harassment
bribes.” He asks: “Should the bribe giver be given full immunity in
such cases? The simple answer to this is a — no.” Dr. Basu says, “A
full answer to how the law should treat such cases will have to await
further analysis.” However, he is “inclined to believe that even in
such [non-harassment] bribery cases ... the punishment meted out to
the bribe taker should be substantially greater than on the giver.”

Is he wanting a certain “class of bribes” to be legalised or is he
really asking for the bribes of a certain class to be okayed? It seems
the latter. The companies behind the 2G kickbacks will do fine in Dr.
Basu's law. Their conduct will have to “await further analysis.” Dr.
Basu half admits his scheme could leave public servants “vulnerable to
blackmail and false charges of bribe-taking.”

Interestingly, about half the references listed at the end of the
paper hark back either to other papers by the author himself; to
papers co-authored by Dr. Basu with others, to those by still others
in books he has edited: or to papers by yet others citing him in the
title. Modesty would surely be a small but novel idea here.

Other, clever ideas from Dr. Basu:

This year's Economic Survey of India (referred to by cloying TV
commentators as ‘Kaushik's Survey') links inflationary pressures to
financial inclusion of the poor. “This must not deter us from pursuing
financial inclusion ...” but we “need to be aware of all its
fallouts.”

In the middle of 2010, he favoured decontrolling of fuel prices —
which would, he argued, help tackle the price rise, even if it “might
raise inflation in the short-term.” (The Hindu, June 14, 2010). Again,
this came at a time when food price inflation was pushing past the 15
per cent mark. And even as the FAO was warning against rising food
prices worldwide and the immense hardship they would bring. (In
December 2010, the FAO's food price index touched a record high.) And
India since 2005-06 has seen possibly its worst five-year period in
terms of food price increases.

Much earlier, Dr. Basu wrote a piece in The New York Times (November
29, 1994) titled “The Poor Need Child Labour.” In it he explained,
among other things, why he had once continued to employ a 13-year-old
at his home. (Another small but novel idea?) Dr. Basu is also an
expert on ‘development' who has long argued against banning child
labour.

A ‘small but fairly radical idea' for this government: can we get
somebody who talks sense?


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A. Mani




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