The Jan Lokpal Bill is predicated on faulty assumptions and seeks powers far too wide with far too few controls
Just days after the crowds of the World Cup frenzy, it seems strange that another type of crowd should gather so quickly, one that seems to involve every one of us. At the centre of the storm is an unlikely icon, a lone man whose diminutive build belies the enormity of his moral stature.
His cause is deceptively simple: he wants to rid India of corruption. The Jan Lokpal Bill is his vehicle. Across the country, all manner of people, from students to corporates and film actors, have joined his cause and climbed aboard: emails, sms messages, every manner of communication is being used. Whether Anna Hazare’s chosen means of protest—the fast to death—is right or wrong is irrelevant in the present context; that debate has no easy resolution. It is true that being prepared to die for a cause does not of itself make the cause just; it merely shows fixity of purpose, not legitimacy.
The one thing the protest and fast do is to send a message to the government: the people of India will no longer tolerate the continued venality that now pervades public life. The people’s anger is enormous, the frustration deep. The government needs to listen, and listen closely. Hazare is not some irrelevant eccentric who can be ignored; and this outpouring is something real, something tangible. It is a fire, it is spreading and it will not be easily put out. Whatever your view on Anna Hazare’s protest method, there is no doubt that he has caught the imagination of the country in a manner we have not seen perhaps since the Emergency.
There are things yet that can be achieved. Ducking the question won’t work. Nor will the usual UPA-II-cha-cha-cha (first, go on television and blame everyone else; then dig your head in the sand and pretend the problem doesn’t exist). People everywhere are fed up of the self-serving, self-righteous, smug and complacent Congress-led government with its apparently inexhaustible capacity for corruption. Yes, the movement needs the widest possible support; no, government vacillations will not do.
But we should be cautious, lest we be branded the fools who rushed in. What is it precisely that the country seeks? At its simplest (and most simplistic), the demand is for greater accountability in public and civic affairs and an institutionalised redressal mechanism for corruption. There can be no argument with that.
Essentially, the demand is for an ombudsman. The word is of Scandinavian origin, from the Old Norse, and refers to an official whose job it is to investigate complaints from the public against government officers. What the movement demands is several things all at once, a sort of governance bhelpuri. First, that the bill be re-drafted with 50% of the contributors drawn from civil society. Whether this is possible or even practical is another matter. Despite all appearances to the contrary in some of our latter-day laws, drafting a statute takes some special skill.
Second, the movement’s current leadership seeks sweeping powers for the Lokpal: the power to prosecute, police powers, an omnibus jurisdiction over all limbs of government, including the judiciary, complete independence, even from the Supreme Court; the right to investigate all kinds of government spending; and even its own fund. These are the waters that are treacherous.
The suggestion is that the Lokpal will be the guardian, the conscience-keeper of the nation. The Lokpal will be pure of heart and beyond all reproach. Who will choose him? Not, as in Scandinavia, the government, but retired judges and, as one draft suggested, recent international award winners. But Nobel prizes and Magsaysay awards are no guarantees of incorruptibility. The entire movement is predicated on a single faulty assumption: that there is no one in government, the executive, the bureaucracy and the judiciary who can be trusted. Therefore, what this model envisages is the creation of an extra-Constitutional fourth super-limb of government, one to which all other limbs are subject. What the model implies is dysfunction: no judge, no bureaucrat and no minister ever able to work without fear of some disgruntled citizen (of which we have no shortage) making a complaint. The PM and the CJI are subject to the Lokpal’s whip; and the Supreme Court is sought to be strait-jacketed in matters relating to the Lokpal. The so-called “people’s Bill” isn’t just disingenuous; it is downright batty.
It also raises a very disturbing question, one that features in the Platonic ideal of the perfect society with its four classes of laborers, slaves and tradesmen and guardians. The guardians protect the city. Socrates is asked the question that was later pithily phrased by the Roman poet Juvenal in his versified social history: quis custodiet ipsos custodes? Who will guard the guardians? The answer is that in a civilized society, there is no need to guard the guardians who will guard themselves against themselves. Why? Because these are the best, and it is their duty to protect the weak; and because they live this “noble lie” without taste for power or privilege.
Is such a thing even possible? Yet the Jan Lokpal bill suggests precisely this, and has no answer to this fundamental question. Version 2.1 of the Jan Lokpal Bill seems to contain no safeguards in this direction. What it does have are provisions that are frightening in their sweep:
19A. Punishments for offences: For offences mentioned in Chapter III of the Prevention of Corruption Act, the proviso to section 2(4) of this Act and section 28A of this Act, the punishment shall not be less than two years of rigorous imprisonment and may extend upto life imprisonment.
Provided that if the accused is an officer of the rank of Joint Secretary or above or a Minister, a member or Chairperson of the Lokpal, the punishment shall not be less than ten years of imprisonment.
Provided further that if the offence is of the nature mentioned in the proviso to section 2(4) of this Act and if the beneficiary is a business entity, in addition to other punishments mentioned in this Act and under the Prevention of Corruption Act, a fine amounting to five times the loss caused to the public shall be recovered from the accused and the recovery may be done from the assets of the business entity and from the personal assets of all its Directors, if the assets of the accused are inadequate.
Read this with Clause 27(2):
(2) No proceedings of the Lokpal shall be held to be bad for want of form and except on the ground of jurisdiction, no proceedings or decision of the Lokpal shall be liable to be challenged, reviewed, quashed or called in question in any court of ordinary Civil Jurisdiction.
Other than an internal appellate procedure, there is no further recourse to a court of justice. Clause 26 is a half-hearted attempt to provide for complaints against officers or employees of the Lokpal. All these are to be decided by the Lokpal itself. Clause 7 says that the Chairman of the Lokpal can only be removed by filing a petition before the Supreme Court; and here the Supreme Court is sought to be tied down hand and foot as to what it can and cannot do (including a ban on the Supreme Court dismissing the petition at the threshold). These petitions must be heard by a 5-judge bench of the Supreme Court. Why this should be, we are not told. And Clause 19B allows the Chairperson of the Lokpal to investigate any allegation of corruption against a sitting judge of any High Court or the Supreme Court and even to launch a prosecution. But High Court and Supreme Court judges are appointed under the Constitution and can only be impeached by Parliament. So this bill allows a prosecution of a sitting judge, but cannot remove him, so he continues to function until impeached while his prosecution is going on. And, of course, the ‘prosecution’ will be in regular courts, where appeals will be taken up in the normal channels. This is a nightmare straight out of Kafka. How will any of this work? The Lokpal is super-cop, super-judge, super-parliamentarian. Idealism has its place, but untempered by reality it makes for dangerous games. When we vest such terrible power in the hands of a select few, we should be afraid. We might wind up unleashing a monster, one not easily caged.
Yes, we need guardians and conscience-keepers; but they, too, must be subjected to the scrutiny as everyone else. Consider the alternative of having guardians without accountability. History provides us with many names that fit this description. The list is long, from Caligula to Pinochet and Eichmann and beyond, and it is not pretty. Because of who the guardians are, or will become, we must retain the means to guard against the guards themselves, to prevent them from becoming despots and tyrants, corrupted by such absolute power.
We do have a way to do this and it is called judicial review. This is the rudder that keeps the ship of state on an even keel; in law, it is as old as the hills; and in sum and substance this is what the Jan Lokpal bill tries to dislodge. The Jan Lokpal Bill is necessary; just not in the present form. That is not the road to salvation; it is the path to anarchy, despotism and finally perdition.
Postscript
This piece generated a fair amount of comments over on Facebook, and what seems to have emerged is that there is a an overwhelming sense that half-measures or moderation will no longer work. There is, too, a recognition that corruption is not any longer isolated aberrations; it is systemic, and has become a way of life. The feeling is that every politician and bureaucrat is corrupt, whether by involvement, acquiescence or abetment; and no one is exempt. People go into politics because they can make money in corrupt ways and get away with it; ergo, we need radical solutions. I still believe there is a need for circumspection; that the cure shouldn’t be worse than the ailment; that systems of checks on the Lokpal are essential. I do not claim to have solutions or answers, but there is great merit in keeping power divided and an equal or greater danger in concentrating so much power in a single body.
The morality of fasting unto death for a political cause in a constitutional democracy has always been a tricky issue. There is something deeply coercive about fasting unto death. When it is tied to an unparalleled moral eminence, as it is in the case of Anna Hazare, it amounts to blackmail. There may be circumstances, where the tyranny of government is so oppressive, or the moral cause at stake so vital that some such method of protest is called for. But in a functioning constitutional democracy, not having one’s preferred institutional solution to a problem accepted, does not constitute a sufficient reason for the exercise of such coercive moral power. This is not the place to debate when a fast-unto-death is appropriate. But B.R. Ambedkar was surely right, in one of his greatest speeches, to warn that recourse to such methods was opening up a democracy to the “grammar of anarchy”.
Corruption is a challenge. And public agitation is required to shame government. But it is possible to maintain, in reasonable good faith, that the Jan Lokpal Bill is not necessarily the best, or the only solution to the corruption challenge. We should not turn a complex institutional question into a simplistic moral imperative. Many of the people in the movement for the Jan Lokpal Bill have set examples of sacrifice and integrity that lesser mortals can scarcely hope to emulate. But it is the high vantage point of virtue that has occluded from view certain uncomfortable truths about institutions.
But the claim that the “people” are not represented by elected representatives, but are represented by their self-appointed guardians is disturbing. In a democracy, one ought to freely express views. But anyone who claims to be the “authentic” voice of the people is treading on very thin ice indeed. It is a form of Jacobinism that is intoxicated with its own certainties about the people. It is not willing to subject itself to an accountability, least of all to the only mechanism we know of designating representatives: elections. The demand that a Jan Lokpal Bill be drafted jointly by the government and a self-appointed committee of public virtue is absurd. Most of us sharply disagree with elected government on matters even more important than corruption. But no matter how cogent our arguments, it does not give us the right to say that our virtue entitles us to dictate policy to a representative process.
The danger is that such passive-aggressive tactics as a fast to cast a demand as that of civil society’s subverts the constitutional framework. Can the few gathered at Jantar Mantar, their voice amplified by saturation television coverage, really make demands on behalf of “civil society”? Can they, even as they keep the capital’s arena for free association clear of politicians, coerce a democratic system to set aside due procedure and cave in? A sound Lokpal bill is crucial, but what’s happening at Jantar Mantar is less about the bill than the assertion of a very few to represent the majority.
What connects this crowd of ex-servicemen, yoga enthusiasts, autorickshaw unions, candle-light vigilantes, actors and corporate big shots and students? That they all feel let down, in different ways, by the political apparatus, and they are mad as hell. And it is indeed satisfying for them to wrest compromise from the government, force it to correct some flaws in the draft of the Lokpal bill.
There is a clear rationale for tough measures on corruption. And it is difficult to deny that over the years governments have made the rules and made sure that they go unpunished. But this movement dissipates its own case with its thoughtlessness and its vaulting demands. What, after all, is civil society, and what privileges one group over another to speak for the nation? The only irrefutable proof that you represent the people is that they have voted you in, through a free election. If we have an imperfect democracy, popular energies must be directed to making it better, not rejecting it and replacing genuine political representatives with a coalition of self-appointed spokespeople.
I have studied the draft Jan Lokpal Bill carefully and I find some of its features are deeply disturbing. I want to take some time to think through why this appears disturbing to me.
The Jan Lokpal bill Lokpal will become one of the most powerful institutions of state that India has ever known. It will combine in itself the powers of making law, implementing the law, and punishing those who break the law. A lokpal will be ‘deemed a police officer’ and can ‘While investigating any offence under Prevention of Corruption Act 1988, they shall be competent to investigate any offence under any other law in the same case.’
The appointment of the Lokpal will be done by a collegium consisting of several different kinds of people - Bharat Ratna awardees, Nobel prize winners of Indian origin, Magasaysay award winners, Senior Judges of Supreme and High Courts, The Chairperson of the National Human Rights Commission, The Comptroller and Auditor General of India, The Chief Election Commissioner, and members of the outgoing Lokpal board and the Chairpersons of both houses of Parliament. It may be noticed that in this entire body, only one person, the chairperson of the Lok Sabha, is a democratically elected person. No other person on this panel is accountable to the public in any way. As for ‘Nobel Prize Winners of Indian Origin’ they need not even be Indian citizens. The removal of the Lokpal from office is also not something amenable to a democratic process. Complaints will be investigated by a panel of supreme court judges.
This is middle class India’s dream of subverting the ‘messiness’ of democracy come delightfully true. So, now you have to imagine that Lata Mangeshkar (who is a Bharat Ratna), APJ Abul Kalam (Bharat Ratna, ex-President and Nuclear Weapons Hawk) V.S. Naipaul (Who is a Nobel Prize Winner of Indian Origin) and spectrum of the kinds of people who take their morning walks in Lodhi Garden — Supreme Court Judges, Election Commissioners, Comptroller & Auditor Generals, NHRC chiefs and Rajya Sabha chairmen will basically elect the person who will run what may well become the most powerful institution in India.
This is a classic case of a priviledged elite selecting how it will run its show without any restraint. It sets the precedent for the making of an un accountable ‘council of guardians’ something like the institution of the ‘Velayat e Faqih’ — a self-selected body of clerics — in Iran who act as a super-state body, unrestrained by any democratic norms or procedures. I do not understand what qualifies Lata Mangeshkar and V.S. Naipaul (whose deeply reactionary views are well known) to take decisions about the future of all those who live in india.
The setting up of the institution of the Lokpal (as it is envisioned in what is held out as the draft Jan Lokpal Bill) needs to be seen, not as the deepening, but as the profound erosion of democracy.
Just days after the crowds of the World Cup frenzy, it seems strange that another type of crowd should gather so quickly, one that seems to involve every one of us. At the centre of the storm is [an unlikely icon][1], a lone man whose diminutive build belies the enormity of his moral stature.
[1]: http://www.hindu.com/2011/04/06/stories/2011040653261300.htm "'Anna Hazare begins fast-unto-death', Jiby Kattakayam, The Hindu, 6 April 2011"
