India is one of the few countries that does not have a law for public procurement—and in the context of the scams that have occurred over the past 12 months, this cannot go unnoticed
It is great to have the debate on Lokpal and to be able to get a strong Lokpal to tackle corruption. What Annaji and his colleagues have done in terms of trying to get a strong Lokpal is unparalleled. However, let us remember that having a strong Lokpal is just one part of the solution and many other changes would have to be made as I have already elaborated in a previous Moneylife article. (Read: 'Tackling multi-faceted corruption in India: Here are a few critical issues in establishing the Lokpal and Lokayuktas')
Apart from a strong and independent Lokpal, a range of aspects would have to be addressed to eradicate corruption in India. These include:
(a) Sound corruption-retarding policies relating to the use of natural resources such as land (and its acquisition), mining, underwater exploration, spectrum, and the like, for a variety of purposes. All of these sectors have been prone to scams.
(b) An appropriate public procurement Act relating to the sale/lease of natural (public) resources which have again seen the largest and biggest scams.
(c) Political reforms with transparent (state) funding of elections.
(d) Regulation of critical sectors like financial services, to prevent fraud and corruption in public/private enterprises so as to safeguard people's money (savings), avoid over-indebtedness and the like.
(e) Rationalisation of various taxes to incentivise tax payments and facilitate better tax collections.
(f) Creation of a citizen's grievance-redressal system that ensures all citizens gain access to all basic services at an appropriate cost and when in need of the same.
(g) And advocacy and awareness campaigns that ensure that citizens commit themselves to not engaging in corrupt practices such as payment of bribes, evasion of taxes, commission of frauds, and the like.
I start with public procurement as it is a very huge issue and yet, it has not been subject to sufficient regulation. In fact, India is one of the few countries that does not have a law for public procurement and in the context of the multi-faceted scams that have occurred over the past 12 months, this cannot go unnoticed. Let us remember that many of the scams that were unearthed during the past 12 months have centered on public procurement related to natural resources like land, water, mining, exploration, spectrum, and the like. This issue assumes greater importance when one considers the statement of the prime minister on 25th August in which he emphasised the need for a public procurement law to end corruption. He mentioned this in June 2011i and he has said it now again—a very valid point indeed. Given this, it would not be naïve to assume that such a law would soon become a reality in India.
While a Public Procurement Act in India is something that is overdue, what should such a law containii in order to be effective in checking corruption on the ground? I outline some fundamental issues that should be considered while drafting such a public procurement law. I will discuss these in detail later, in a three-part article.
The first deals with transparency in public procurement. The law must ensure that there is an adequate degree of transparency in the whole (public) procurement cycle so as to facilitate fair and equitable treatment for all potential suppliers. Transparency must be maximised in competitive tendering and precautionary measures must be in place to enhance integrity, for (any) exceptions made to competitive tendering (in case of urgency and/or national security).
Among other things, the law would also have to ensure the following aspects.
1. All potential suppliers/contractors must have clear and consistent information with regard to the whole procurement process and understand it well.
2. Where required, the degree of transparency may be adapted according to the recipient of information and the stage of the cycle. In other words, confidential information (trade secrets) would need to be protected to ensure a level playing field for potential suppliers, and also prevent possible collusion among stakeholders.
3. The public procurement process is applied equitably/fairly across the entire cycle by all stakeholders and is perceived to be fair and equitable.
4. The drive for transparency does not create unnecessary 'red tape' and inefficiency in the public procurement system, thereby causing unnecessary and huge delays.
5. Key decisions made on public procurement are well-documented and easily accessible for examination by various stakeholders, as appropriate.
6. Relevant stakeholders (including auditors) are able to check and determine whether specifications are unbiased and/or award decisions based on fair grounds.
7. Clear rules and concrete guidance must exist with regard to the choice of the procurement method and on exceptions to competitive tendering (if any).
All of this suggests that good procurement regulation and systems must not be unnecessarily complex, costly and/or time-consuming, as they could then cause huge delays (in the procurement) and discourage participation, especially by micro, small and medium enterprises (MSMEs).
In fact, excessive red tape in such public procurement regulation may create significant opportunities for (fresh) corruption and this would surely result in the whole purpose of enacting the legislation becoming counter-productive.
Therefore, ensuring an adequate level of transparency that enhances corruption control, while not impeding the efficiency and the effectiveness of the public procurement process, is a challenge that needs to be met by using the mantra of 'balanced enabling regulation'. I hope that the powers-that-be keep these aspects in mind while drafting the much-needed Public Procurement Act in India.
iiThis article draws on several resources including information from various civil society organisations, multi-lateral and bi-lateral agencies, international organisations like the Organisation for Economic Co-operation and Development (OECD) and other stakeholders. They are gratefully acknowledged.
(The writer has over two decades of grassroots and institutional experience in rural finance, MSME development, agriculture and rural livelihood systems, rural/urban development and urban poverty alleviation/governance. He has worked extensively in Asia, Africa, North America and Europe with a wide range of stakeholders, from the private sector and academia to governments).
A large part of the Fraud Investigation and Control Knowledge Summit held in the national capital last week focused on the ground-level frauds committed by people in corporate India, and provided guidance on what to do in such situations, whether it is the Rs200 travel voucher frauds, or the bigger Rs200 crore accounting frauds, and the huge Satyam-sized multi-thousand crore rupees scams
In a way, it is symptomatic of all that is happening in India now with the Jan Lokpal issue, that a seminar on the subject of fraud and risk in the corporate world passes unnoticed by the mainstream media, largely because this is one subject that is seldom brought out, unless it is reported after the act and during the investigation and prosecution stage. Even then, whenever there is a large corporate scam with numbers that make political scams look like time-pass, there is always a closing of ranks and shutdown in communications, as well as a lack of information sharing kind of approach, while the players regroup.
To give one simple example, the annual budget for the IPL cricket business far exceeds the five-yearly budget for India's general elections. But IPL-related scams appear to vanish like the summer rain, leaving no trace, not even a hint. And it is no longer a question of sports journalism only; this is, like any other industry, a simple pure commercial enterprise. But is there any chance of sustained action on frauds here?
Another example is the global narcotics economy that exceeds in turnover the oil economy plus the transportation economy. The numbers themselves are mind-boggling. But when you refer to the historical facts of how colonial empires sent gunboats into China to ensure that the opium traffic continued in the name of free trade and democracy then you get an idea of how it is business as usual, but with far bigger numbers. Some of our biggest and best corporate houses owe their continued existence to this simple association going back centuries, but you will not see this being called a fraud or investigated.
In trillions of dollars and euros, and it's all hunky-dory, as long as you wear swish suits and can deliver articulate power-point presentations in impeccable English to a hall full of people from a wide assortment of disciplines, all there to learn more about investigation and control of fraud in the corporate world.
As I have said already, the numbers make political scams look like piggy-bank thefts, but the way of the world has been to always ignore these in the name of "free trade". It also has to do with the fact that within the global scenario, the larger frauds being played out are ostensibly to benefit stakeholders, or tax-saving methods often by unnamed entities, hiding behind tax havens globally
On the other hand, impeccable standards of personal integrity and adherence to a vast variety of laws, rules, statutes and edicts globally, not to forget mandatory and regulatory filings, are expected of those on the frontlines all the way down to the base of the pyramid. There is a dichotomy here that comes out loud and clear at summits and seminars like this one, especially with the younger and more aware managers who ask these questions directly, far more now than it was in an age before the advent of the internet.
But this seminar was about corporate fraud and risk management at the modern workplace, mainly corporate. As defined. Sitting in for two days in a conference room full of mainly young people from various fields-banking, auditing, F&A, HR, law, NGOs, tech forensics, the private and the public sectors, investigators, ex-cops and more, and networking with them offline during the refreshment breaks, one could generate a book on the subject of corporate scams if required. From the personal finance viewpoint, which is the focus of Moneylife, many salient features emerge, some of which will be discussed in a separate article.
As far as this seminar, organised by the Mumbai-based ITP publishing group, is concerned, full marks for the concept and delivery. It was overdue and many interesting aspects never discussed otherwise in the open, came up. Here are a few.
# Technology driven frauds: We listened to Ajay Kumar Dhir of Lanco Infratech and his refreshingly frank discourse on his experiences, as well as ongoing learning curve, with reference to electronic communications. Alok Gupta of Pyramid Cyber Security & Forensic walked us through some case studies as well as forecasts on where cyber security was headed, as well as some basic steps on how to counter issues.
# Accounting driven frauds: Suveer Khanna of KPMG Forensic brought out the global viewpoint of his company, with examples of how to profile as well as tackle real-life scenarios, but largely of the downstream smaller corporate fraud sort. On the other hand, a panel of people from companies as diverse as Microsoft, Alcatel-Lucent, Standard Chartered Bank, HSBC and ICICI were far more forthcoming on larger frauds pushed by the number crunchers variously.
# Other topics included whistleblower protection (still in a nascent stage in India), global corruption perceived with respect to India, in the context of sponsored benchmarking (as explained by Transparency International), and a very spirited discussion between a group of young lawyers on the legalities involved in corporate fraud and risk investigation. We also learned about aspects of HR and policies as well as best practices on what to do when fraudsters were caught, the benefits and downsides of going to the police, the issues of public perception and market-related aspects, and more.
In all, it wasn't as simple as setting traps, placing checks and balances, and then replacing the bad guys with the good guys. There are far deeper nuances of why these frauds happen, and more importantly, on what to do once things are detected.
The seminar was largely successful in what it set out to do, which was to provide participants and others with an idea of the tools and processes that could be used for and in case of detection of frauds. There was not enough attention, however, to the concept of pre-emptive steps and concepts of fraud prevention as an essential part of the holistic picture.
For example, some aspects of ATM fraud dealt with counterfeit notes and short delivery, which impacted the customer as well as the bank. Analysis of the ATM stuffing procedure reveals that, in India, a van goes to every ATM with huge bundles of currency notes and then the ATM is refilled, notes counted, recounted, handled, re-stuffed, by a variety of people at a variety of remote and secure locations, which leaves the process open to a wide range of possible frauds.
In most other countries, the ATM signals the central control room when it is running short of currency, at which point the van goes there, and simply replaces the existing cartridges with a sealed cartridge that has pre-counted and pre-checked currency notes in it. The almost depleted or empty cartridges are taken back to the secured area where they are handled under very controlled methods.
Likewise, the background check on employees is usually a tick-all-the-boxes-and-move-on kind of endeavour. More often than not, an unsecured email is sent to an HR department or college, and an equally unsecured email response is considered to be the foundation for a background check. How difficult is it to send a letter by registered post, a signed copy of the said email, and request the courtesy of a similar written response, even if it involves enclosing a reply-paid envelope or a pick-up from a reputed courier company?
However, there is not intention to detract from the value gained by many at the seminar. Also, it was visible that in the absence of the mainstream media, participants were more frank and open about their views and experiences. And, if their experiences are anything to go by, corporate fraud and risk investigation is only going to rise in the country, and very rapidly.
To read more details log on to the evocatively named website http://www.itp.net/events/fraudsummit/
When one digs deeper into why the Jan Lokpal Bill is not progressing, and tries to analyse the reason why the mainstream media appears to be stuck on the ‘small corruption’ angle, while the business media maintains a discreet silence on what is happening, one hits on huge numbers
Earlier yesterday we had the PAN-IIT group of young and old alumni from all the IITs across India, on stage with Arvind Kejriwal and Team Anna. This was, for all observers, one of the few organised groups of influential people who actually came on board and declared where they stand on the issue of corruption in India in no uncertain terms. By comparison, industries and industry bodies of repute who otherwise would not think twice about throwing glamorous functions on issues related to corruption and never fall short of suitable comments on the issue of corruption, have been absent from making or taking any coherent and cogent position on the issue.
# Now, the grapevine is rife with talk about how certain NRI and NRI-linked politicians, with British, European and US linkages, who have stacked funds abroad in tax havens allied to those countries, have been informed that certain tax deductions by the authorities abroad would now be applied to these funds before they can be released back. This includes Switzerland, which is already doing this in the case of the United Kingdom, and proposes to do so with countries in the European Union too. Look carefully, the body language is beginning to say it all.
# Some members of the electronic and print media were at an informal get-together, when one of the most influential 'perception-benders' or lobbyists-call him what you may-explained to them how the Jan Lokpal Bill would not only impact politicians and public servants, but also the media and industrialists. The tone of some of the TV channels and newspapers/magazines appears to be changing slowly, if you read carefully, between the lines. Looks like advertising support from the strangest of organisations, for example ESIC, which is sponsoring an automobile show on NEWSX television channel that is bleeding money since hardly anybody watches the channel, is perhaps influencing the rhetoric.
Globally, New Delhi is now increasingly seen as a gigantic hub of rent-seekers, and one reason for this is that over the past few decades, a whole new class of political-businessmen (and women) have perfected the art of converting outright lies and theft into legalese, by the simple expedient of getting them converted into, what else, that language of criminal whitewash, good English. And then monetizing this in ways which are increasingly blatant and vulgar, with little regard for probity or concern for whether they are being seen or not.
As a matter of fact the more flagrant the criminalities, the brighter the lights used. And then, not just that, but a crass and commercial display of the acts themselves, which is why the term being used is "pornographic". At the finest and oldest clubs with memberships going past lifetimes, to the toniest of "membership by invitation only" lounges and reserved floors in the many 5-stars dotting the city, the word is out. If you've been able to stick it to the Great Indian Public Exchequer, then let the world know about it.
And then collect more rent on it too. Surrounded by fleets of "consultants" of all hues and numbers, safeguarded by fleets of private security guards, and usually finding cover under the term "NRI", the business ventures range from the old traditional narcotics and arms and then onwards, to the newer technologically perfect counterfeit currency and diamond transaction management. This is, of course, in addition to the mining, defence and real estate, and every other racket you can think of, very often covered under the all-encompassing term "PPP". Even good old infotech, the poster boy of development in India, is not immune.
The numbers are, to put it simply, huge. By one estimate, provided by the political and economic calculations of a particular High Commission that should know, the leakage is in the region of more than Rs1,200 crore a day. The thought itself is mind-boggling; what kind of theft generates this kind of numbers, even if it is to be reduced by half?
As a denizen of this city for the past 50 years and as one who has seen how it went on in other cities, globally, where the carpetbaggers reigned, one can well believe it. The spending patterns have gone ballistic in Delhi, especially over the past three-four years. Rs200crore-Rs300 crore for a wedding is the kind of number that a good MLA, or a middle-level "business person" spends lately, it seems.
So when one digs deeper into WHY the Jan Lokpal Bill is not progressing, and tries to analyse the reason why the mainstream media appears to be stuck on the "small corruption" angle, while the business media maintains a discreet silence on what is happening, one hits on huge numbers. For example, for every day that the progress can be delayed, the payout will be enormous. Goes without saying. And the risks taken, politically, suddenly become worth it. What's just the notional daily interest in an inflationary economy for these numbers? It will pay for any amount of free biscuits and bananas and ads on television, just to make sure that the focus remains on "small corruption", while the lobbyists take a short break.
Astonishing stories are sweeping this city. Some high-profile punters in the park-your-money-abroad game have apparently left town, leaving a good number of people with funds parked in tax havens abroad extremely worried. You can hardly go to the local police and complain about this. The average industrialist is up to here with local level corruption, and does not see how a Jan Lokpal will help him, so he is keeping his head down and just getting along with work in a recessionary market. And a friend who is a transporter has confirmed that he is trying to ensure that all his trucks and cargo on them are suitably "secured" every morning, staying off roads and highways during the day as much as possible.
In addition, as credible reports of sporadic rowdyism and violence start appearing from the India Gate and Vikas Marg areas, it becomes even more apparent that the foot-soldiers of those who are going to be impacted are beginning to realise just how deep the Jan Lokpal Bill can go to put an end to the whole pornography of elite corruption, and they are strong enough to ensure it will not happen. There is just too much rent at stake. A new breed of hooligans can be seen on the streets, and counter marches as well as protests are visible.
But yes, the pornography display, that can be scaled down. It will keep the mainstream media happy, too. After all, it is time to replace the lot that has been in jail for close to six months already for assorted Commonwealth Games and 2G scams. The same cells are required for the mining lot as well as the cash-for-votes guys.
To sum up, it is the lack of clarity, the hiding of facts, the reading between the lines, which provides the answers. The Jan Lokpal Bill will, if introduced, put at stake the very survival of many of those who benefit from the ongoing pornography of the elite. Not just that, it will also involve loss of face, tremendously.
The powers that run this country have been able to get the message across to those who perform on their behalf. Obviously, the elite corruption part will continue, but the blatant display of pornography may need to be curtailed, for some time at least.
And that's what will probably be the tactic to be adopted, as something drastic happens at Ramlila grounds and in the rest of the country in the next few hours, or day. The naked display of elite corruption may shift elsewhere for some time.
Which is how it was in the days of the British Raj, as well as the early years of Independence, remember? You stole what you wanted, but you kept a stiff upper lip as you just pretended to be cleaner than the natives-which is what the Jan Lokpal will in all likelihood achieve. Meanwhile, those who "collect tax on freehold" plan to continue to do so.
It will keep the natives in check. And that's the simple truth. The Brits taught us this.