Thursday, August 25, 2011

Vaulting Ambition, Sloppy Thinking: Why the Jan Lok Pal Bill is a Dud

Corruption is the central concern. It is almost a theological concept. It is also a term – along with the linked adjective, “corrupt” – that recurs at frequent intervals through the text of the Jan Lok Pal (JLP) bill.

This bill has gone through thirteen iterations and in its current form is, according to the social campaigner Anna Hazare and his core group of associates (Team Anna) ready for adoption by Parliament. As an elected body representing all the people, Parliament, says India Against Corruption (IAC) -- the larger civil society grouping that Team Anna takes its mandate from -- has the right to enact laws for all the country. But prolonged default on a matter of urgent public importance cannot be tolerated. Parliament has no option than the adoption of a bill cooked up by the IAC. This would be the first step, necessary, though not yet sufficient, towards dealing with the ongoing plague of corruption.

If the frequency with which a word is used indicates how serious is the intent, then the JLP draft, in its most recent variant, scores heavily over the Prevention of Corruption Act, 1988 (PCA) and the Central Vigilance Commission Act, 2003 (CVCA). These are the two most proximate enactments which share the objective of combating corruption. And they are both rather spare in their use of the two words. Maybe this indicates a far greater sense of focus and moral purpose in the JLP than in all earlier laws. Maybe it shows that the earlier enactments paid little attention, or chose willingly to be oblivious, to the magnitude of the task they were intended to address.

A moral dimension is apparent in other respects too. Through the text of the JLP draft, the word “integrity” occurs four times and “impeccable” twice. “Evil” is used once in the preamble, in a quote from a former Secretary-General of the United Nations, and “eminent” is the term of art chosen to characterise somebody who would have the credentials to be on the “search committee” for appointing the JLP.

Ordinary citizens who have tried to understand the arcane processes of the law may often wish that legal texts could show some sparks of life, that there was some way of rendering legalese into a comprehensible idiom. Terms such as “impeccable” and all the rest that the JLP draft scatters liberally around, may seem self-evident in terms of their import to all who suffer the daily scourge of corruption. “Impeccable” to most would be the opposite of what they see in their public servants. But then, to be “impeccable” and to possess “integrity” or “eminence” in the manner that the JLP requires, is beyond most citizens.

Team Anna holds out the promise that ordinary citizens’ lives will soon be governed by higher virtues, embodied in a chosen few who will assume the stewardship of the JLP, as an institution empowered to impose its will on legislature, executive and judiciary in any matter involving the suspicion of financial wrongdoing. In the steadfastness of their virtue, these individuals would transform lives steeped in the banality of just getting along, negotiating any which way through the thicket of a corrupt governance apparatus.

Morality lecture versus legal text
With this lofty mission before it, the JLP has necessarily to use language more appropriate to a morality lecture than a legal text. Indeed, the JLP is in the vision of its proponents a body born in immaculate conception, untouched by the politics that ordinary mortals are mired in. The origin of the JLP is in a construction of “virtue” that lies beyond ordinary politics. It is a transcendental attribute under siege in the mundaneness of ordinary politics.

It is this moral purpose that defines the central theme of the Anna Hazare campaign and determines its trajectory. Aside from “anti-corruption” which is a slogan even more vapid than “pro-motherhood”, the spirit of the movement is represented in the successive drafts of the bill that Team Anna and the IAC have put before the public.

Beginning with an early draft – themed around “men of virtue” – which spoke of empowering Nobel laureates of Indian origin, Bharat Ratna and Magsaysay awardees and five-star ranking military officers to appoint the Lok Pal, the JLP bill has gone through several modifications. It is fair to say though, that every version, despite seeking to achieve precision in terminology and a better fit with constitutional processes as currently practised, bears the imprint of the circumstances in which the bill was conceived.

Since the “men of virtue” draft was rubbished, a subsequent iteration by the IAC, labelled version 2.1 of the JLP bill, changed the appointment criteria. A studied reluctance to yield ground to representative institutions, or individuals chosen through direct elections, still remained manifest. In a selection committee comprising eleven members or more (since after the first round of selections, outgoing members of the JLP were expected to join the committee), only one qualified by virtue of being an elected representative of the people. And this was the Speaker of the Lok Sabha, who made the grade presumably by holding an office above partisan loyalties.

Unexplained twists in logic
Retained in the selection committee were all armed forces personnel of the five-star rank, of whom there have been three in the history of India, with the sole survivor now being well into his 90s. Also included were the two most senior among two categories: Supreme Court judges and high court chief justices.

In the next round, JLP version 2.2 changed the composition of the selection committee considerably. The total number on the body was brought down to ten, and the patently absurd requirement to have a military officer of five-star rank was deleted. The Prime Minister and Leader of the Opposition (LoP) in the Lok Sabha were allowed admission into the hallowed company of the "selection committee" that would pick the Lok Pal. But in the category of judicial representatives, the criterion of choice was changed from the most senior among Supreme Court judges and high court chief justices, to the youngest in both these categories.

The deliberations that led to these formulations have supposedly been open and transparent. But few reasons were advanced for these violent switches of loyalty, between seniority and its opposite. When an explanation was specifically sought, the answer remained unconvincing. Seniority was supposed to endow a judge with wide practical experience and knowledge, to enable informed choices of personnel for a high-powered body. But “seniority” also meant the imminence of retirement, and the likelihood that a judge -- irrespective of his value system -- would be susceptible to the lure of a post-retirement sinecure the government could place before him.

Younger judges in contrast, with the assurance of many years ahead on the bench, were likely to be immune to this inducement.

Mildly put, the logic is questionable. On the other side of the coin, the government and the higher judiciary are always in consultation in matters involving judicial appointments. When appointments to the JLP are imminent, ministers and senior (or junior) judges - both detested categories in the IAC's scale of values -- could connive in putting in place nominees in the higher judiciary, to ensure that between themselves, they have decisive influence over choices made to the JLP. This is a situation that is as probable as the dark scenario that Team Anna sketches.

Fundamentally, every formulation that has been put forward by the IAC has been deeply flawed. And these in turn emanate from an attitude of mind that trusts nobody and believes that a presumption of guilt is warranted in any matter involving a broadly defined notion of “corruption”.

The current version of the JLP Bill (numbered 2.3 on the IAC website) allows – with obvious reluctance -- for two elected representatives on the selection committee, the Prime Minister and Leader of the Opposition in the Lok Sabha (LoP). Two Supreme Court judges and two incumbent high court chiefs are also on the committee, without any further requirement of seniority or otherwise. In a major gesture of modesty, the IAC has unconditionally left that choice to a collegium of judges from the highest judicial bench.

Aside from the political and judicial members, the selection committee would also include the Chief Election Commissioner and the Comptroller and Auditor General of India. At the second and subsequent rounds of selection, all previous chairpersons of the JLP would join the committee.

Men of virtue and eminence to have first call
The concessions to the political and judicial establishments, though, are limited by a caveat: the selection process would now have to confine its choices to the names put forward by a ten member “search committee”. This is where the quality of “eminence” comes in. Five members of the “search” team would be chosen by the selection committee in accordance with the normative criterion of “eminence”, as also the other condition of “impeccable integrity”. And the rest of the “search committee” would be coopted by the five chosen in accordance with the original virtue of "eminence".

To take one aspect of the bill – the procedure of choice of the JLP – successive drafts have oscillated rather wildly in terms of applicable criteria. The “men of virtue” clause was removed at an early stage in the revisions. In a seemingly grudging concession to politics as practised – rather than its idealised vision – the Prime Minister and LoP were given a due role in the choice process. Since the JLP is envisaged to have a judicial function in some respects, there was no way that the men who people that arm of governance could be kept out.

Yet the trust deficit was difficult to dispel. And since the basic premise of Team Anna is "trust nobody", there was a wild oscillation between “most senior”, “youngest”, and finally, anybody who is proposed by a duly constituted “collegium” of judges.

Arvind Kejriwal, a former official of the Indian Revenue Service, now acknowledged strategist of the IAC and the main draftsman of the JLP bill, has often been on record with the view that powers envisaged for the anti-corruption body are no more than those vested in the Income-Tax (I-T) department. The point has a certain validity, though only superficially. The I-T department is authorised to perform the functions of investigation and prosecution. There is also a provision that hearings under a tribunal and a commission that could be set up under the I-T department, would enjoy the status of judicial proceedings.

Powers of judicial appointment and superintendence
The crucial difference here, is that the JLP conceives of trial in special courts. Rather confusingly, draft bill 2.3 prescribes two distinct procedures of trial. Under Chapter X, the JLP would put out an annual assessment of the number of special courts required for the swift trial of all the accused. The Government would set up the required number of special courts and Chief Justices of every High Court would constitute appellate benches to take up appeals and settle them within six months. Under Chapter XII, the JLP is empowered to appoint retired judges or civil servants as judicial officers for conducting trials once investigations are completed. A bench constituted in this fashion would determine the penalty and the punishment that could be imposed on the accused, subject to “approval by a higher authority prescribed” by the JLP.

The power of appointing judicial benches and stipulating deadlines for them is obviously far beyond anything that the Income-Tax authorities can imagine. Indeed, in seeking to gather under one body the powers of investigation, prosecution and trial, the JLP does considerable violence to the doctrine of the separation of powers, a fundamental principle of government by the rule of law.

As a further reality check on Kejriwal’s claim that the JLP bill proposes no greater powers or procedural prerogatives than the rather banal I-T Act, it would be appropriate to just consider one clause, article 7(5) of version 2.3, which reads:

“If during the course of investigation into a complaint, the Lokpal feels that continuance of a government servant in that position could adversely affect the course of investigations or that the said government servant is likely to destroy or tamper with the evidence or influence the witnesses or is likely to continue with corruption, the Lokpal may issue appropriate directions including transfer of that government servant from that position.”

The JLP’s definition of a “public servant” is the same as in the PCA. A “government servant” in turn, is a sub-category. Excluded from this sub-set are elected representatives and judicial officers. In other words, the JLP would have the authority to remove from office and quarantine anybody -- except an elected representative or a judicial officer -- for the duration of its inquiries. Here again is an extraordinary power that the I-T department could not conceive of ever claiming or deploying.

Much public contention has arisen out of the JLP bill’s determination that nobody – not even the highest political and judicial authorities – should be spared from its intrusive attentions. Version 2.3 tries to build in sufficient safeguards to deal with the sensitivities involved, by requiring prior approval of a seven-member bench of the JLP before any investigation or prosecution begins against the Prime Minister or a member of the Union Council of Ministers, any judge of the Supreme Court or a High Court, or any member of Parliament.

Sloppy draftsmanship omits an important point: is it sufficient for a majority of the seven-member bench or has this decision necessarily to be unanimous.

This should be regarded as a minor quibble in comparison to the larger issues. In the context of the extraordinary powers of removal of a public servant that the JLP assumes, it is worthwhile playing out a mind-game. Imagine a situation in which the Prime Minister is suspected of wrongdoing – since one of the issues on which Team Anna is most insistent and inflexible on, is having the PM under the jurisdiction of the JLP. The PM as head of government, in theory, controls every lever of the executive machinery. So by remaining in office while under investigation, he could conceivably, thoroughly subvert the course of inquiries. So then do we, by extending the logic applicable to a “public servant”, give the JLP the power to remove the PM?

Usurpation of parliamentary prerogative
With all the great fervour about, the slightest twinge of sympathy for M.K. Kanimozhi, a woman imprisoned now for over four months on corruption charges, would be considered a sign of moral frailty. Bail applications moved in ever higher judicial forums on her behalf have been turned down because investigations are underway into the “2G scam”. The Supreme Court worries that as a person of influence – and as member of a family that wields enormous political and financial clout despite its ignominious eviction from office in recent general elections to the Tamil Nadu state assembly – Kanimozhi might misuse a freedom provisionally granted, to fatally damage the investigations.

IAC’s credo is a radical formulation of the principle of equality before the law. It is impatient with suggestions that certain individuals (by virtue of occupying particular offices) could be exempted from scrutiny. The JLP as constructed in the IAC imagination, will have absolute authority over every institution and every office, however high. Neither the Chief Justice of India, nor even the Prime Minister, would be spared.

The proposition is infused with a sense of moral righteousness and purpose. And most political parties, anxious not to be out of step with the dominant public mood – as represented by loud and opinionated TV news anchors -- have signed on to the demand for a JLP that covers all.

A short pause to think over the implications of the proposition – using the legal standards applied in the Kanimozhi case -- would bring home its essential absurdity. A woman of very moderate power in comparison to an incumbent prime minister has to be taken into custody and repeatedly denied bail because she could influence the course of investigations for the worse. How then would the law deal with a person occupying the single most important position in the political executive, who quite possibly, could paralyse the investigations? The only credible answer, consistent with current practices, would be that PM against whom investigations are underway, should rightfully be in prison and ineligible for bail till investigations are completed and charges framed.

In a basic sense, the JLP proposals should be read as an intrusion into the sovereign domain of parliament, an unseemly power grab.

The affirmation of this principle – that the PM is answerable to parliament, which should hold him to the highest standard of probity – may occasion some bemusement, since it has long since been lost in Indian parliamentary practice. The clamour for a JLP that will have jurisdiction over the PM, effectively states that the loss of public faith is irretrievable. This inference would be consistent with the general mood afoot, of a complete loss of faith in elected institutions as embodiments of the popular will.

Precisely because of this, it is necessary to make one final attempt at retrieval. Because it allows no room for retrieval, Team Anna is prepared to trample all over another basic doctrine of constitutional governance. Article 50 of the Constitution, part of the Directive Principles, obliges a separation between executive and judiciary. This is a directive that the “State” has to abide by in its public services.

Fatal damage to doctrine of separation of powers
Team Anna conceives of a body that would be the final solution to all problems of misgovernance, and would have powers that straddle the realms of the executive and judiciary. The JLP proposed by the Anna Hazare cabal would have powers of investigation and prosecution in any matter involving the suspicion of corruption. It could impose fines and orders of dismissal from service, it could annul contracts solely at its discretion. Where it is compelled to go by the judicial route, it would have the powers to determine how many special courts should be appointed to deal with cases that it files and determine the composition of the judicial benches that would deal with these cases.

Kejriwal was on a talk-show hosted by Karan Thapar on CNN-IBN on August 20, where he argued frenetically that he had the right to represent his political point of view in any manner thought appropriate. When asked about the damage caused to the representative processes of democratic politics – in even the imperfect form practised in India – he repeatedly made the effort to distinguish between the “people” and parliament. Clearly, in his imagination, India's parliament is elected by aliens from outer space. And a gathering at Ramlila Maidan in Delhi, spectators to an uninformed old man’s decision to deny himself all nourishment for an indefinite length of time, counts for more than all the history and precedent that has gone into the construction of Indian democracy.

Worries about excessive concentration of powers are batted away by Team Anna. The process of judicial review enshrined in the Indian Constitution, they say, would be applicable in any matter decided by the JLP. This would be the final guarantee against an abuse of power by a monstrously empowered JLP. Yet it does not take too long to realise that this is simply begging the question. If it all finally comes down to the judiciary, that should be the focus of attention. Judicial reforms and the various means of making the institution more accountable, should really be where public attention is directed. And similarly with the agencies of the political executive and the legislature.

Anybody reasonably familiar with the history of India’s constitutional democracy, would realise that a JLP as conceived by Team Anna would be the worst possible response to its ills. Against the imperative of deepening representative processes and allowing greater room for the expression of opinions by all, the JLP draft conceives of a rigid, hierarchical structure, armed with extraordinary powers. It aims to create a body straddling the realms of the formation of law, its implementation and oversight, seeking a vantage point from which it would coerce and intimidate every other institution into compliance. It does not take more than one reading of the JLP draft -- and a basic familiarity with preceding variants -- to see that it is conceived in monumental ignorance of basic constitutional principles and processes. Fundamentally, the JLP draft is about a belief in messianic deliverance from the difficulties that ordinary people today face.

Waters will not part before this messiah

Investment in this messiah is almost guaranteed to fail, since the waters are not going to part before him. The trek to the promised land will likely be interrupted by basic constitutional difficulties. Legislative bodies will question the JLP's intrusive jurisdiction and seek a better way of codifying their privileges, rather than surrender to the powers of this newly minted constitutional body. Judicial benches will reject the conceits of the council of the wise that seeks to impose its frenetic moralism on established procedures. And the political executive will retain all the necessary means to thwart the JLP's quixotic tilting against windmills.

Team Anna's supposed revolution has laid the pathway towards a collapse of constitutionalism, since the response of its ardent flock to the reality of failure is unlikely to be either thoughtful or constructive. A JLP that performs in accordance with the Team Anna script would guarantee not salvation from corruption, but political gridlock. And that would be the most optimistic forecast, since the alternative could well be the worst form of political despotism.

No comments: