Rupees, Annas And Vice

Governance  | 18 August 2011  | print

If the present government has lost its moral, ethical and constitutional compass, the draftsmen of the Jan Lokpal Bill seem to have forgotten the grammar of liberty.

Civil society. A debate, anyone?

If there exists popular perception that this is a government with an embarrassment of vices — an inexhaustible capacity for corruption, inventive mendacity (the dementia defence), and, it now seems, even gross political ineptitude — the Congress-led UPA has only itself to blame. Arresting Anna Hazare, then offering to release him, imposing conditions on his right to protest and then launching personal attacks all tell of a rudderless government bent on committing political suicide by ritual disembowelment.

Its many kamikaze missions have fractured meaningful debate and delivered the country to the opposition. Among the government’s several robberies, the largest is of the space for a civil discourse: we are now reduced to black-and-white terms. The restrictions on Hazare and his arrest were probably illegal and unconstitutional. The correct response to these, of course, was one to which everybody else would have been driven: to approach a writ court. But what if the restraint orders were in fact lawful? By defying them, Mr Hazare invited the same action that would have been taken against anyone else. If a common man defies a police order, he faces consequences, and it is no answer to point to some moral superiority without first examining the legality of the police orders. Just as it now seems this government can do nothing right, Mr Hazare can do no wrong, and his moral stature is now a blanket that everybody around him uses. As a starting principle perhaps we might be better off never to trust men who feel the need to proclaim their honesty. Before we start claiming to be ‘honest’ and ‘against corruption’ we might want to answer the questions raised by this newspaper on its front page just yesterday.

Likening the police action to the Emergency or the popular sentiment to August Kranti does very grave injustice to the countless numbers who fought tyranny at both those times. This is nothing like either. The police action is not a clamp down on citizens across the country. We are not engaged in a battle for sovereign independence. We are demanding certain systemic changes within the sphere of our existing democratic freedom. Being unable or unwilling to distinguish between calls for change and struggles against despotic regimes or colonial powers is mindless, and the epithets being applied are just so much pap.

A not-so-civil society (click on the picture to view it full-size)

In Anna’s penumbra (click on the picture to view it full-size)

But the government’s actions have conflated these matters with the relative merits of the Government’s Lokpal Bill and its alternate, the Jan Lokpal Bill. It is now presumed that because the government acted as it did, it necessarily follows that the Jan Lokpal Bill is the one to have and that the government Lokpal Bill is a betrayal. You are either “for” Hazare or “against” him; and if you are not for him, then you must be corrupt. This is as imbecilic as saying that Hazare can deliver us from evil and rid the country of corruption. He cannot, and it is useless to pretend otherwise. Nobody who is “for” Hazare has stopped to consider what exactly his bill proposes, or what gives a handful of people with nothing very much between them the right to pretend to claim that they represent “civil society”. If the Jan Lokpal bill is the handiwork of a ‘civil society’, then it is a society to which many of us do not wish to belong.

The government’s repeated bleating about parliamentary supremacy in legislation is rightly criticized as hyper-technical tripe. Only a fool would deny that societal demands often force a law into being: labour laws, women’s rights, and the Right to Information act were all driven by social pressure. But all of these came into being after going through a legislature. Acknowledging that changing societies demand new laws is very different from saying that a mass movement will decide the frame of any particular law. That is a matter entirely within the province of Parliament, and Parliament is not meant to merely wink and nod at everyman’s stab at drafting legislation. It is simply not open to anyone to demand that Parliament must accept any particular version. This is a perversion, and it is central to Team Anna’s thinking: all of Parliament is corrupt; therefore, it is not qualified to legislate; therefore, the draft proposed by us, ‘civil society’ — who do not dare face an election — must be rammed through. Mr Hazare is within his rights to travel to every corner of the country to muster support for what he believes in. But he is not entitled to threaten wide civic unrest if his version is not made law. That is simply blackmail and it undermines the Constitution.

Critics of the government bill say it excludes MPs. On a closer reading, it does no such thing. The government bill excludes the sitting Prime Minister and the judiciary;¹ and the inclusion or exclusion of both these is at least debatable. Contrary to what is being put out, the government bill does include past and present Union Ministers and members of both houses of Parliament, companies, trusts, directors and so on.² What it excludes is any action of a Minister of Parliament “in respect of anything said or a vote given by him in Parliament or any committee thereof covered under Article 105(2) of the Constitution”.³ That Article confers immunity on Parliamentarians on things said and votes cast in Parliament or any Parliamentary Committee.⁴ The government’s bill only keeps intact the Constitutional provision. For this, it is said to be a joke. But the real joke is that the Jan Lokpal Bill demands a wholesale elimination of this Article, without a Constitutional amendment as required by law, and it does so by including Parliamentarians’ speeches and votes in its definition of corruption:

2(e). Act of corruption” includes:—

i) anything made punishable under Chapter IX of the Indian Penal Code or under the Prevention of Corruption Act, 1988; which would also include any offence committed by an elected member of a house of legislature even in respect of his speech or vote inside the house.

There are many glaring holes in the government’s draft. One of these is its refusal to accept the role of what the other draft calls “whistleblowers”, people who, in the face of great odds, combat corruption. Instead of acknowledging the value of their contribution, the government bill provides only for severe penalties for making false complaints.⁵

Although it has wide powers of investigation, search and prosecution, the Lokpal remains recommendatory in the government bill.⁶ It does not say what is to be done in corruption cases involving a certain class of public servants or how the Lokpal’s recommendations are to be enforced, although the previous hindrance of needing prior sanction for prosecution has been removed.⁷ The bill is very unsatisfactory, but to argue that its failures cannot be corrected after following an established, constitutionally mandated parliamentary process returns us to the starting presumption, that all of Parliament is corrupt. If that is to be accepted, then what is at stake here is our Constitution itself.

On the other hand, in its essential woolliness, the Jan Lokpal Bill is a bubble-and-squeak legislation, full of yesterday’s leftovers. It still speaks of nominees being “persons with impeccable integrity and a record of public service particularly in the field of fighting corruption.”⁸ Fighting corruption is not a “field” of endeavour, an occupation or a profession (or it might be subjected to service tax). And who would these persons be, and where might we find them? Would they include hirsute yogis with a penchant for cross-dressing?

It is also a truly frightening document. Not only does it demand, as a matter of statutory entitlement, a budget of not less than 0.25% of India’s revenue⁹ — to my mind, itself sufficient distortion to qualify as corruption — but it arrogates to the Lokpal all manner of powers, investigative, prosecutorial and punitive against everyone in public life, from the Prime Minister and judges of the High Court and the Supreme Court to your neighbourhood beat cop. The CBI answers to the Lokpal, and its anti-corruption wing is merged into the Lokpal.¹⁰ The Lokpal can investigate. It can prosecute. And it can impose penalties directly — including life imprisonment.¹¹ To give an idea of the kind of power the People’s bill demands, look at Section 8:

1. For the purposes of investigation of offences related to acts of corruption, the appropriate Bench of the Lokpal shall be deemed to be designated authority under Section 5 of the Indian Telegraph Act empowered to approve interception and monitoring of messages of data or voice transmitted through telephones, internet or any other medium as covered under the Indian Telegraph Act read with Information and Technology Act 2000 and as per rules and regulations made under the Indian Telegraph Act 1885.

In other words, the Lokpal is the authority to approve all telephone and internet tapping against everyone everywhere. This is the bill demanded by ‘civil society’? Somehow, I think not.

If the present government has lost its moral, ethical and constitutional compass, the draftsmen of the Jan Lokpal Bill seem to have forgotten the grammar of liberty. However noble their cause, we should beware the men who would be Caesar. We should be careful what we wish for. We might get it.