Many Questions, Few Answers

Governance  | 15 April 2011  | print

The Lokpal should be the scourge of our Constitution, not the hammer of God

It isn’t a good feeling, this confusion and sense of conflict of the past week or ten days. Yes, we understand what everybody and his uncle have been saying (mea culpa): the Jan Lokpal Bill, or People’s Bill, is undemocratic, dangerous, Draconian. It puts too much power in a few hands, and it hasn’t got enough controls on the use of that power. I suspect we’re also more than a little fed up of the potshots at Anna Hazare: he supports NaMo; undermines democracy; trashes ‘civil society’; doubts the electorate’s intelligence; has skeletons in his almirah; lacks the moral authority to Fast Until Death (FUD); he’s just another clueless FUDdy daddy. The flakes don’t help: Anupam Kher saying we need to change the Constitution just like we change gas cylinders. And Baba Ramdev’s paternity claims to the agitation make many of us very uncomfortable. Of all these, the most disturbing statement from Hazare is his contempt for the voters. This one assertion speaks of a man who hasn’t the foggiest notion of how democracies work. After every election, people get the government they deserve; it’s as simple as that. And it’s not for Anna Hazare, Kiran Bedi, Arvind Kejriwal or, god forbid, the yogi-who-would-be-king to tell us what is right and thereby trump the electorate.

But many of us do want a Lokpal, and a Lokpal bill because we see how deep the rot has gone, corrupting all our political, social, and administrative systems. The intention of this initiative (‘movement’ has a strangely familiar bad smell now) is one that appeals to everyone. No one suggests that it’s acceptable to continue wallowing in the sewage of our civic governance.

The battle hymn of our republic is a song aux fines verbs: we must “root out”, “weed out”, “eradicate”, extirpate, exterminate, defenestrate and otherwise verbify ourselves into a corruption-free society. Is that even plausible? There’s simply no such thing. Corruption exists everywhere. It always has.

What is this ‘corruption’ we talk about? It’s not corruption in financial markets, or moral and intellectual dishonesty. Corruption is one of a host of problems we face; perhaps it is, today, the most important one. It’s certainly not the only one. And corruption takes many forms, not just monetary: back-scratching and nepotism, for instance, or intellectual corruption. Yet we have chosen to address ourselves only to monetary corruption in public life. Corruption is perhaps only the symptom. Over the past 20 years, our economic and soical policies have been directed to making the rich richer and ignoring the poor in all but name. The inevitable by-product of that situation is corruption.

Who are the corrupt we hope to bring to book? Is it only about the big fish? What about the rest of us? In a number of little ways that finally add up to something very big, we all encourage corruption daily. Is this about changing the civic mindset that says it’s okay to pay a bribe to a traffic cop or for a water line? To be corrupt so long as it’s at the level of a small scale industry? Is this about making examples of a few or an attempt to change the moral fibre of an entire nation? An attempt to move from individual selfishness to a collective selflessness? Should we target the impossible or aim for effective systems of detection and punishment? Corruption is inversely proportional to enforcement. We already have statutory legal consequences. Surely what we need are ways to render them, quickly and without exception; to weave in, not weed out?

The trouble is there doesn’t seem to be a consensus on what we’re going to address and how and already they’re into the detailing. Drafting a statute is like building a house. You must first define precisely what you want and then add the rooms and verandahs. Here, it seems that everyone is insisting on putting in the room of his choice without care for the consequences. The result is confusion and uncertainty, and these are last things we need, for they are corruption’s fodder.

How do we deal with frivolous complaints? The government wants heavy punishment—jail and fine. The bill’s proponents say fines are adequate. Are they? Wouldn’t there be a flood of complaints? Every losing litigant and every unsuccessful bidder is a potential complainant. What if his complaint is vengeful, motivated, frivolous?

What manner of creature is this Lokpal? Everyone says he’s an ombudsman and point to Scandinavia and Old Norse but our Lokpal now seems to be something very different. The concept has its roots in Roman law. In the last years of the 5th Century BCE, plebian soldiers defied the orders to march to war issued by their Patrician masters and seceded to the Aventine Hill. Rome was at war. Without the soldiers, it was threatened. In a desperation very like what we see today, the patrician government gave in and allowed them to elect their own tribunes; hence tribuni plebis; tribunes of the people. They were there to protect ordinary citizens from the arbitrary exercise of state power. They could issue writs of habeas corpus and veto elections, laws and senate decrees. They were elected by the people; and only an ordinary freeman (not a patrician) could ever be tribune. The sweep of power was so extraordinary that it was finally undermined, the tribunes reduced to irrelevance, when Roman emperors, starting with Augustus, were invested with the tribunes’ powers.

The Lokpal we are to have is more tribune than ombudsman. Typically, an ombudsman has no direct enforcement powers. His role is recommendatory but carries great moral authority. But our experience suggests that mere recommendations will be ignored. How do we work around this? Suppose, for instance, you were to say that a recommendation of the Lokpal will be enforced by the government unless the Supreme Court, by a majority of at least 5-2 feels otherwise? That is, of a bench of seven Supreme Court judges, at least five feel it should not be enforced. Would that not be enough?

The present version of the People’s bill has a reward (not exceeding 10% of the value of the confiscated property) as an ‘incentive’ to make complaints. Does fighting corruption need financial reward? Doesn’t this put a bounty on the head of every public servant, judge and bureaucrat?¹

Should judges of the higher judiciary be brought under the Bill? Bhushan pere et fils say yes. They have been fighting corruption in the judiciary for the longest time, so this is understandable. But other judges and lawyers disagree, and their reasons are good. Doesn’t letting the Lokpal judge our judges undermine something fundamental to our Constitution? Of course, we have corrupt judges — but we find those everywhere, from the Bible onwards; and there is another bill aiming to correct precisely that. Do we need a wholly unaccountable outside body to judge our judges?

Prior sanction for prosecuting government officers is seldom given, and perhaps this provision is essential. But what is the likely backlash in administration? Especially without sufficient deterrent against frivolous complaints?

What is the cumulative effect of a parallel judiciary and police force rolled into one? Judges don’t have police powers, and police don’t function as judges. In the Jan Lokpal Bill, the Lokpal’s proceedings are deemed to be judicial proceedings² and the Lokpal is to have all the powers of a civil court³ plus all the powers of the police⁴ plus special investigation teams⁵ and the powers to the compel performance of its orders.⁶ Yet the Lokpal is largely unaccountable. It even has its own fund.⁷ Should such power be vested in any one body, ever? Power once given is almost impossible to take away, and lends itself to enormous abuse; which is why, as Pratap Bhanu Mehta says, divided power is the most powerful regulatory tool in any democracy.

Are the appointment procedures and qualifications safe enough, given the nature of the powers? In matters like these, surely powers should define qualifications. The Jan Lokpal Bill says the Chairman (and staff) should have “demonstrated their resolve to fight corruption in the past”.⁸ How? That seems to reduce the pool to the handful at the core of this agitation.

And this one is really scary:

1. This Act shall override the provisions of all other laws.

There was a time, not long ago, when trains ran on schedule and people did their jobs without expecting bribes, when corruption had been ‘eradicated’ and the head of the government then had very wide powers too. We called it the Emergency.

We all want the Lokpal bill to work, but in a way that is meaningful and just. It’s not just about corruption, whatever the definition. It’s about the one thing we seem to have left by the wayside a long time ago: social justice. We need a Lokpal who is not the hammer of God but the scourge of our Constitution.