At a mid-April public discussion on the proposal for a tough new statute to deal with corruption, J.S. Verma, former Chief Justice of India, raised a red flag. Certain of the ambitions of the draft bill to create a Lokpal, or ombudsman, with wide-ranging powers of scrutiny and sanction, were simply out of order. Indeed, the draft bill in circulation, he feared, would likely impinge on features held to be part of the “basic structure” of the Indian Constitution.
Since these words of caution came from a jurist of high standing, the media paused briefly, took note and then moved on. There was little reward in unravelling a complex question of constitutional practice, when quick and easy entertainment was available elsewhere. An accomplished political blackmailer had launched a smear campaign against another eminent jurist, Shanti Bhushan. And that was where eyeballs were more likely to focus.
A later public consultation came out with the definitive suggestion to keep the higher judiciary outside the Lokpal jurisdiction. Alongside J.S. Verma, another former Chief Justice, M.N. Venkatachalliah, was party to this proposal, which came with the explicit recommendation that a tough new mechanism of accountability be instituted for the judiciary, though one mindful of its autonomy. Despite this caveat, the cyber-space and blogosphere, which have been major arenas of mobilisation on the Lokpal bill, were soon suffused with chatter about how judges were intent on remaining above scrutiny.
Impatience and a degree of intolerance are dominant moods of the current phase of anti-corruption activism. It is a mood that induces a certain disregard of democratic proprieties. The favoured metaphor of the flock gathered around Anna Hazare during his five-day fast, was of corruption as a “cancer” eating into the core of the democratic process. Radical remedies were called for, even at possible risk to basic principles of democratic governance.
For the corporate media, public accountability stood triumphant the moment the government gave into Hazare’s demands. Others who have been engaged in democratic accountability as a grassroots cause, worried about the prospect of imminent defeat.
As conceived in the most current draft of the bill, the Lokpal will be an agency with powers of investigation and prosecution. It would also in certain respects – as in issuing sanction for contempt – have the powers of a court of law. In prosecuting alleged cases of corruption, the Lokpal would have the authority to determine how many special courts should be constituted to fast-track the trial process. In setting up these special courts, the government would be obliged to submit a potential list of presiding judges to the Lokpal, which would determine who among them meets the standards of integrity required.
It does not take great legal acumen to see that these clauses between them, violate the principle of the separation of powers, held to be a “basic feature” of the Indian Constitution. And in its haste to gather these powers within one institution, the Lokpal campaign seems willing to blithely trample over another basic principle of the rule of law: the presumption of innocence.
The term “political class” has acquired a certain currency in recent times, pointing to a growing credibility gap for the practice of democracy in India. “Politics” has become the quasi-monopoly of a defined class. The electorate for all the belief and commitment it shows everytime it lines up at the polling stations to vote, has no real option outside a narrow slate of candidates – chosen through dynastic processes, or as part of a patronage transaction, for a cash consideration, or perhaps in recognition of services rendered well beyond borderlines of legality.
The Lokpal campaign has responded to this reality of Indian electoral politics with a proposal that effectively would suspend the presumption of innocence for the “political class”. Nobody would be spared the searching scrutiny of the Lokpal, not even the Prime Minister.
Earlier inquiries on ethics in governance have advised against bringing the Prime Minister under the jurisdiction of a watchdog, simply because the Westminster system of parliamentary democracy runs on a simple principle: that the Prime Minister is accountable to the people, through their elected representatives. If there is the slightest hint of a taint over his or her functioning – sufficient to invoke the scrutiny of an ombudsman – then Parliament would have the first right to insist on a prime ministerial resignation. Reasonable suspicion of wrongdoing – rather than conclusive proof -- is sufficient to trigger the resignation of a Prime Minister.
This is a principle that has often been lost in practice, pointing to yet another credibility gap in India’s democracy. But it is not clear that the solution proposed by the Lokpal campaign, with its distinctly authoritarian overtones, is best suited to this challenge.
Like it virtually discounts judicial reform as an autonomous possibility, the Lokpal campaign seems equally dismissive about the potential for overhauling the manner in which elected legislatures function.
A clause in the draft bill reserves for the Lokpal the right to prosecute legislators accused of receiving a monetary consideration for something done purportedly in an official capacity. This is seen as a long required antidote to the constitutional immunity that elected representatives enjoy, even for the most blatant acts of malfeasance. In the “cash for votes” scandal involving Jharkhand Mukti Morcha members of Parliament during P.V. Narasimha Rao’s term as Prime Minister, the Supreme Court held that the situation though far from happy, was the undeniable reality enjoined by the Constitution.
This patently unsatisfactory situation has led to at least some efforts to arrive at firm definitions of where parliamentary privilege ends and the abuse of power begins. Yet, as with the judicial reforms agenda, this debate is likely to get swept aside and submerged in the public fervour over the Lokpal as a magic wand that will banish the growing malaise in India’s system of governance.
Crystal-ball gazing is always a hazardous pursuit. But it seems fairly safe to predict that a Lokpal bill of the sort that is currently in circulation, is unlikely to make it to the floor of Parliament for even a preliminary debate.
In the remote eventuality that a bill embodying the spirit of the current draft is passed, a prolonged turf war is virtually foretold, with judiciary and executive leading the charge against the Lokpal. It is always wise to be prepared for remote possibilities. And if a bill of the sort that is currently in public discussion were to pass, it would be a monumental abdication of responsibility by Parliament, and a surrender to the populist mood.
A Lokpal bill, passed into law in the current shape, would be a tribute to the very same infirmities of the electoral process that the anti-corruption movement seeks to fight.
A paralysis of governance would be inevitable – an outcome that could be averted only if the Lokpal were to rapidly descend into the same swamp it seeks to retrieve other institutions from. The middle-class revolt that has fuelled the current mood of activism over corruption, could then assume different dimensions, potentially deeply corrosive of the basic principles and processes of representative democracy.