‘Undemocratic’ and ‘unconstitutional’ are two words you will hear often when Anna Hazare’s drive against corruption has been talked about. Following which, the argument will talk about Irom Sharmila and how corruption can never be solved by a ‘magic wand’. Following which, the erudite will never give an alternative to fighting corruption, except, let us use ‘parliamentary debate’ to fight corruption. Or my personal favourite, ‘the cause is bigger than the man’. I have answered all these questions in my earlier post that can be found here and here.
In light of the new government version of the bill and the ‘civil society’ version, I’ve decided to write another article on the conflicting points.
To start with, Anna Hazare is merely a man who represents the face against this crusade. Everybody hates corruption. This point is well articulated and clear. The differences lie in the manner in which corruption has to be combated. Anna has emerged as a voice of the people. It could be anybody. But, fact is, Anna has emerged as the rallying point. Let us not discount his efforts here. Hazare has brought the Ombudsman bill from the dusty coffers to the public forefront. Introduced by the erstwhile Janta Party civil servant, Shanti Bhushan in 1969, the bill continues to be a dream because of political parochialism and ineptitude. Today we all know about the Ombudsman bill because of ONE man. Make no mistake about it. His name is Anna Hazare. He does not hold political office, wishes not to contest elections. Despite all the comparisons of him being the modern Mahatma Gandhi, I would like to think of him as someone in the mould of Jayaprakash narayan. Ther parallels are uncanny; Jail Bharo Andolan, Purna Swanthikari and an almost emergency like situation. However, I digress from the issue in hand.
Attempts to discredit 'civil society' :
There have also been numerous attempts to discredit Shanti Bhushan and his son Prashant Bhushan. Shanti Bushan has held the cabinet portfolio for Law, under the first ever non-Congress government in 1977. After Indira Gandhi’s disastrous emergency, it became imperative for the Desai government to rectify the constitution. Shanti Bhushan was the chief orchestrator in ensuring the constitution is upheld, particularly Amendment 42 and the rephrasing of ‘internal disturbance’ to ‘armed rebellion’, thereby omitting the notorious Article 360. This was an Article used by Congress governments, even in Nehru’s tenure, to destabilize legitimately elected governments. Democratic, that is.
Shanti Bhushan was also the man who represented the socialist, Raj Narain in his petition in the Allahabad high court, which nullified Indira Gandhi’s election to the Rae Bareli constituency in 1971. It is largely belived that the Justice Sinha verdict sent Ms. Gandhi into a tailspin, which eventually led to the proclamation of the emergency.
To question Shanti Bhushan’s motives and discredit him hurling allegations is a cheap Congress tactic. And it failed. An important point to be noted; The INC has scant respect for democratic governance.
Numerous attempts were made by Congress party spokespersons, Digvijay Singh cabinet members, Kapil Sibal, Ambika Soni and many others, claiming that Anna himself is involved in corruption. Absurd, to say the least! Other methods were tried and tested when Anna hailed Gujarat’s economic prosperity. Communalization of the movement, many in the Congress believed, would de-legitimize the cause. Needless to say, it all failed.
A detailed narrative on the failed CVC and the 'organisation of the ruling government', CBI, has been explained in my earlier posts. It can be read here and here. I won’t get into the details of two defunct bodies.
The Lokayukta is a similar Ombudsman body, which recently prepared a detailed report on the illegal mining in Karnataka. Headed by Satosh Hegde, the report was instrumental in the stepping down of former Chief Minister, Mr. B.S. Yeddyurappa. The Lokayukta has the power to conduct raids and is also a centralized authoritative body that aims to tackle corruption amongst politicians. It is surprising why the media has not drawn parallels with the Lokpal bill and the Lokayukta.
Nuances of the bill;
Article 6 (2) of UNCAC (united Nations Convention Against Corruption) provides that “each state party shall grant the body (anti corruption institution) or bodies, the necessary independence, in accordance with the fundamental principles of its legal system, to enable the body or bodies to carry out its or their functions effectively and free from any undue influence. The necessary material resources and specialized tasks, as well as the training that such staff may require to carry out their functions should be provided”.
According to the UNCAC the Lokpal bill is within the democratic edifice and has to be ‘grant(ed)’ by the ruling party. It should also help in aiding the body and ‘carry out its functions’ with the sole aim of tackling corruption. The legitimacy of the Jan Lokpal is clear with the following lines.
The government version of the Lokpal does not want to include the Prime Minister under its purview. Why? Does that mean the Prime Minister of this country is exempt from Corruption? India has been notorious for its corrupt PM’s. Every PM other than Nehru, has been involved in nepotism at some stage. This is directly against the UNCAC Article when the INC is removing the ‘sting’ of the Lokpal bill. Kapil Sibal, the man who tried miserably to con the nation by stating that there was no 2G scam, is now introducing a government version that has no powers. Another CVC or CBI, is not what the Jan Lokpal is.
What if the Lokpal, due to its authoritative powers, becomes a dictatorial menace?
The integrity of the authority and the anti-corruption/vigilance machinery under its control is sought to be achieved by mandating transparency in its functioning and public participation, wherever possible. The accountability of the Lokpal itself would be to the Supreme Court, which would have the authority to enquire into and order the removal of members of the Lokpal. The officials under the Lokpal will be accountable to independent complaints authorities apart from the Lokpal itself. Judicial review over the actions of the Lokpal by the High Courts under Article 226 and the Supreme Court under Article 32 and 136 would further ensure the accountability of the Lokpal.
Chapter 1, Point 2(m) provides protection for ‘whistleblowers’. The lokpal also aims to induct The Whistleblowers Act which, may I remind, is still a dream bill, resting in the dusty coffers of the Lok Sabha.
Chapter 2, Point 4(1) establishes the key feature of the Lokpal, “administrative, financial and functional independence from the government.” It is the independence which gives the Lokpal, the necessary tools to prosecute corrupt politicians. If this independence is ‘undemocratic’ or ‘unconstitutional’, not just the Lokpal, but no democratic body can combat the rampage of corruption in India. Such is the power of politicians and authorities, that a legislation that separates the tentacles of the power polity, is the only means to combat its growing and all encompassing influence.
Civil Soiety is not ready to Co-Operate?
After much criticism of the Selection committee, the Hazare team has revised the selection panel under Chapter 2 (4)(6) to;
The Selection Committee shall consist of the following:-
(i) The Prime Minister of India, who will be the Chairperson of the Selection Committee.
(ii) The Leader of the Opposition in the Lok Sabha
(iii) Two judges of Supreme Court of India and two permanent Chief Justices of the High Courts selected by collegium of all Supreme Court judges
(v) The Chief Election Commissioner of India
(vi) The Comptroller & Auditor General of India
(vii) All previous Chairpersons of Lokpal.
This change was due to the persistence of the government during the discussions. To say that Team Anna has completely blocked negotiations and is not prepared to introduce changes in the Lokpal bill is, in blunt terms, a lie.
Point (7)(4) deals with one of the most fundamental problems encountered even by RTI activists. The Lokpal bill aims to tackle this;
A Lokpal bench may punish a public servant with imprisonment up to 6 months or with fine or both, if he fails to comply with its order for ensuring their compliance.
In simple words, if the necessary documents are not filed within time, the Lokpal has authority to prosecute the public servant for attempting to hide crucial details pertaining to the investigation.
Under Chapter (5) Point (12) appeals can be made against the Lokpal. Point (13) provides for the Auidt of the Lokpal, which is carried out by the Comptroller Auitor General of India. These inclusions in the bill are crucial in ensuring that the Lokpal is not a dictatorial body superseding the law of the country. Transperency is also improved by posting the proceedings and other details in the Lokpal website.
I can quote from nearly every provision in the bill that improves the efficiency of the system and brings in accountability. I strictly recommend pessimists, and our ‘fashionable’ Indians to read the bill before calling it unconstitutional. There is even a provision to help the person gain immunity in cases where he informs the Lokpal about the bribe in advance, so as to catch the culprit in the act.
To give you a rough understanding of what the government draft looks like, I’ll present a simple point to moot on.
Only the speaker of the Lok Sabha or the Chairman of the Lok Sabha can probe complaints. This ultimately means that no ordinary citizen has the power to initiate action. The authority vests with the speaker of the house. (Presently it is Meira Kumari, whose father is from the Congress party; the infamous Jagjivan Ram). Such flimsy legislation only questions the government’s resolve in tackling corruption. There is no seriousness to tackle the issue.
The next time you tell us why you are against Anna, please have a list of points as to why you are against the man, and his movement. Not a single person will give you reasons as to why he opposes the bill. Why? Simply because nobody has read it! A few TV reports, a few half baked articles are enough to have an ‘informed’ opinion that seems well researched.