By Chandrahas Choudhury
Can political corruption in India be addressed by reforming the institutions currently assigned to check it, or does the country need a new vigilance institution to help restore trust in its corruption-blotted democracy? Has the Indian Parliament reneged on its primary function, which is to debate and pass laws? And if so, can citizens’ groups, or “civil society,” come up with draft bills of laws, or would such a step be extra-constitutional?
Should the position of an ombudsman, or “Lokpal” -- from the Sanskrit roots "lok" (people) and "pal" (protector) -- be set up to investigate corruption and maladministration at the highest level? What kinds of checks and balances would be placed upon the office of the Lokpal itself? And would its powers of investigation extend to the highest office in the land -- the prime minister -- and to the judiciary? More widely, are hunger strikes to the death a legitimate method of exerting pressure on the government to address the issue? And wider still, what are the duties and responsibilities of citizenship in a democracy and have Indian citizens been remiss in fulfilling them?
All these questions have been widely debated by Indian citizens over the last three months and in New Delhi's North Block in the last week, as a ten-member committee made up of five ministers and five representatives of civil society sat down to thrash out their differences and ready a draft of the Lokpal Bill by the end of the month. The civil society group included four members of the campaign India Against Corruption, which earlier this year began a nationwide protest that was seen by some commentators as India’s own version of Egypt's Tahrir Square movement, a spontaneous mass uprising against longstanding governmental apathy. Others perceived it as an emotive and misguided attempt to promote a utopian one-step solution to corruption.
Indian citizens have a right to be skeptical of the government’s interest in getting the bill through Parliament, as the draft legislation has been bouncing between the two houses of the legislature, the Lok Sabha and the Rajya Sabha, for more than four decades. As the journalist Pradeep Baisakh explained a few years ago in a piece on the history of the bill:
The Lokpal Bill was for the first time presented during the fourth Lok Sabha in 1968, and was passed there in 1969. However, while it was pending in the Rajya Sabha, the Lok Sabha was dissolved, resulting [in] the first death of the bill. The bill was revived in 1971, 1977, 1985, 1989, 1996, 1998 and most recently in 2001. Each time, after the bill was introduced to the house, it was referred to some committee for improvements -- a joint committee of parliament, or a departmental standing committee of the Home Ministry -- and before the government could take a final stand on the issue the house was dissolved.
Anna Hazare, a veteran social activist who in April had begun a fast unto death to force the government to table a bill guaranteeing comprehensive and not cosmetic powers to the proposed Lokpal, was among those on the Joint Drafting Committee. The two halves of the panel sparred all week over a final version of the bill that melded the government’s own draft with the one prepared by India Against Corruption (called the “Jan Lokpal Bill”, or “The Lokpal Bill of the People”). Each side made derisive remarks about the other in the press. Arvind Kejriwal, one of the members on the civil-society side, devised the pun “Jokepal Bill” to mock the draft favored by the government side; Kapil Sibal, one of the ministers on the committee, said Hazare was "like the Pied Piper of Hamlin," (an analogy with very low recognition value in India). The committee's last meeting was June 20, and its resolutions were reported the next day by The Indian Express in a piece titled "In Final Lap, Rush To Reconcile":
After the heated exchanges of last week, Team Anna and government representatives got back together to cover substantial ground on the Lokpal Bill today. The two sides agreed on several issues, including a 10-year maximum sentence for corruption and a large corpus to fund the Lokpal.
But the larger issue of control over the bureaucracy and the extent of the Lokpal’s powers remained unresolved. Government representatives strongly resisted the bid by Team Anna to include clauses with a potential to weaken the political executive and create a possibly counterproductive superstructure.
Each side will now present its own draft of the Bill at the final meeting of the committee tomorrow evening, where an attempt will be made to merge them into a common draft for Cabinet and, subsequently, Parliament approval.
In a piece in the Hindustan Times called “Who’s Afraid of the Lokpal Bill?,” Jagdeep Chhokar played down fears that the bill would supply the Lokpal with draconian powers and an impossible roster of responsibilities, and concluded by saying:
The Jan Lokpal Bill, if it comes into force, will not eradicate corruption or its root causes from society. Only large-scale social change impacting basic values of society can do that.
The Jan Lokpal can only put obstacles in the path of and fear of the law into the minds of the potentially corrupt. It is not a panacea for all of Indian social ills. Nothing can be. But it certainly is a good and necessary step in a long journey.
In an acute piece in The Telegraph on Anna Hazare's fast in April, and his threat to begin another fast unto death Aug. 16 if a diluted bill was presented to Parliament, the academic Prabhat Patnaik made several telling points. He argued that, contrary to popular perception, Hazare's fasts were not "Gandhian," since Gandhi always used the practice of fasts not to sway governments but instead in opposition to the people. The difference between the two, Patnaik argued, was the difference between violence and non-violence:
[Gandhi's] fasts-unto-death were directed at the people, not so much at an institution or government, with the objective of uniting them against violence. Even if any such fast-unto-death had claimed Gandhiji’s life, this would have had no fallout by way of popular anger against any person or institution and hence no visitation of violence against such a target; what it would have produced is a general sense of shock that would have shamed people precisely into the kind of behaviour that Gandhiji had wanted when he undertook the fast in the first place.
It follows that there are fasts-unto-death and fasts-unto-death. There are fasts-unto-death whose objective is to extract some specific concession from an adversary, and which by nature, therefore, are coercive and entail an implicit threat of violence; and there are fasts-unto-death which are not directed against any particular adversary, which seek to unite the people, and which, therefore, entail no threat of violence. Anna Hazare’s and Baba Ramdev’s fasts fall into the former category; Gandhiji’s fell into the latter.
A coercive fast-unto-death is not only anti-Gandhian; it is anti-democratic in the context of independent India. And even when the objective it seeks to achieve is laudable, it is fraught with dangerous implications for our constitutional order. This order is not to be pooh-poohed, because it represents perhaps the biggest advance for the people in the last two millennia of our history.
A different, out-of-the-box approach to the intricate tangle of corruption, government, law enforcement, policy, democracy and discontent was taken recently by the lawyer Gautam Patel in the Economic and Political Weekly. In an essay called “What We Talk About When We Talk About Corruption,” he suggested that corruption might be thought of as existing not just on the level of financial malfeasance but at the very level of policy, and that the proposed bill would hand the Lokpal too much power. He wrote:
Hazare’s movement does nothing to address policy. It assumes that monetary corruption can be separated from policy, and that a skewed set of development priorities can peacefully coexist with complete and transparent financial honesty. This is a fundamental mistake. The studied policies and definitions of "development" of the past 20 years have been aimed at producing only visible artefacts of apparent development – glittering buildings, broad roads, shiny airports, expensive cars – but have done little to address issues of primary education, primary health, drinking water, nutrition, environmental protection and employment. The result is peculiar: in India with its 8-9% growth rate, the rich have become impossibly rich and the poor have been left to their own devices to catch up if they can, or be forever left behind. The gap between the rich and poor is larger now than ever before; in terms of policy, this is like the cup of Tantalus, forever out of reach.
The argument that civil society was trampling upon the dignity, legitimacy and sovereignty of Parliament in seeking to draft laws was vigorously contested by MG Vaidya, a former spokesperson for the Rashtriya Swayamsevak Sangh, who wrote an acerbic piece called "The Sovereign's Right" in the Indian Express last week:
In a few recent issues of The Indian Express, I find an extraordinary, incessant vehemence in criticising Anna Hazare’s and Baba Ramdev’s agitations. The principle underlining this criticism appears to underscore the sovereignty of the Parliament. But is that sovereignty absolute? No, it is relative. [...] The Constitution is superior to Parliament. And as for the Constitution, the people are superior to it. It is the people who have framed the Constitution. The very words that begin it are “We the People of India” have resolved to have this Constitution. People are supreme; and people constitute the nation. Actually the people are the nation. The Parliament as well as all other institutions of democratic polity are, in a way, subservient to the people.
If civil society drafts a bill, what is the harm in it? It does not become a law. Even this bill will have to be discussed and debated in Parliament. If Parliament passes it, then only can it become a law. Anna Hazare’s team that drafted the Jan Lokpal bill is denigrated as outsiders with no mandate to draft it. May I ask then about the National Advisory Council (NAC) drafting the Prevention of Communal and Targeted Violence bill? Which provision of the Constitution empowers the NAC to draft the Bill? If NAC can draft a bill, why not Anna’s team? A bill drafted by civil society neither usurps nor curtails the legislative powers of Parliament.
Analyzing the context in which popular discontent about political malfeasance had finally detonated in “a season of outrage,” the political scientist Sunil Khilnani, author of the book The Idea of India, wrote in an essay in the weekend paper Mint Lounge called “The Social Network” :
We have entered dangerous years in the life of our democracy. We can feel somewhat secure in the conduct of our elections; we have perfected the routines (by no means unimportant) of throwing the rogues out of office. But, once we vote a fresh lot into office, we are quite impotent in trying to make the new knaves honest. And they have little incentive, or perhaps even skills, to become good practising politicians.
In fact the problem may even be structural. Our electoral democracy and our economic growth have combined to place us in an awkward double bind, and suggest a vicious spiral. On the one hand, the fruits of liberalization fall not just to the private sector but also to government. As the overall economy grows, so too does the government’s disposable income. This makes the stakes of gaining access to the offices and patronage of government higher than ever. It necessarily leads to more electoral competition for office, and it requires competitors to devote more energy to honing the skills needed for electoral victory; skills that are not easily transferable to the different task of governing well.
On the other hand, precisely because government now has more disposable largesse, it requires effective governing. But the politicians who have managed to gain office are the ones who are best at winning competitive elections, with a different skill-set from that needed to govern effectively.
And in a further twist, electoral politics in an age of economic growth will also see a vast expansion in the opportunity for corruption. There just is more corruptible material all round. That’s precisely what we are seeing—what is rightly provoking a season of outrage. [...] In this sense, the current stand-off between government and those who profoundly dislike it is more significant that just an indictment of the performance of current office holders. It suggests something more endemic: a weakening in the legitimacy of our democracy, our constitutional pact, itself.
Khilnani's words were echoed by the columnist Tavleen Sing in a piece called "Postcard From A Private Club," which bemoaned the narrowing and the feudalization of Indian democracy:
It is through a democratic deviation of serious dimensions that nearly all our younger MPs are political heirs. These heirs collude, across party lines, in strengthening hereditary democracy because they know that they have got into Parliament on false pretences and would not have made it in the normal course of politics. [...] The problem is colossal and cannot be solved by a Lokpal. What is needed is a sweeping reduction of ministerial discretionary powers, vastly improved governance and mandatory inner party elections. Only when political parties start infusing new life into their crumbling edifices by bringing in better people through a process of elections, will things improve.
As long as we continue to tolerate heirs, their cohorts and their sycophants, we will continue to have democratic feudalism with corruption built into its foundations. If Anna and his team want something to chew on during his next fast unto death, let them think about why the unemployable progeny of our political leaders always find employment in politics.
Expect plenty more on the Lokpal Bill in this space in the months to come.
(Chandrahas Choudhury is the New Delhi correspondent for the World View blog. The opinions expressed are his own.)
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