More power to the people

More power to the people Jagdeep S. Chhokar GovernanceNow | September 1-15, 2011 The Anna Hazare phenomenon continues to hold the nation in suspense and awe, as this piece is being written. It is not clear if Anna will fast for 15 or 21 or some other number of days, and if he will give up the fast only when the Jan Lokpal Bill is passed by parliament or under some other, yet to be decided, conditions. There have been many interpretations of the events of the last few months. This piece presents yet another one. The ire of the protesters and of those who sympathise with and approve of the “anti-corruption movement” is largely directed against the “government” whom they hold guilty of not agreeing to introduce the Jan Lokpal Bill in parliament and introducing the “toothless” government bill. While this is absolutely correct in as far as it goes, since the government of the day is charged with the responsibility and also exercises the authority of deciding what should, or can be, introduced in parliament (with the exception of private member bills which are hardly ever passed), this is somewhat superficial. It may be revealing to go a bit further to see where does the government come from. Obviously, the government is formed by the political party or by a coalition of political parties which have a majority (or the largest number of members in the Lok Sabha). The constitution says clearly in Clause 3 of Article 75 that, “The council of ministers shall be collectively responsible to the house of the people.” All ministers are therefore required to be members of parliament. There is a specific provision for this also in the constitution, specified in Clause 5 of Article 75: “A minister who for any period of six consecutive months is not a member of either house of parliament shall at the expiration of that period cease to be a minister.” Therefore, the government, or at least the political executive, is not only responsible to but also comes out of parliament. Going deeper still, where do members of parliament come from? It is true that we, the voters, elect them. But before we can vote for them, they usually need the endorsement of a political party to have a reasonable chance of being elected in what are nowadays very keenly contested elections. It is therefore not incorrect to say that the choices that voters can make are influenced, actually controlled, by the choices made by political parties. We, thus, see that political parties make the very first set of choices in the formation of the government. If one were to remove the intervening layers at least in the description, it can be easily seen that political parties form the government. So, the ire directed only against the “government” is somewhat, though not fully, misdirected. Large-scale corruption is a symptom of some underlying malaises, and the proposed Lokpal is one possible remedy, out of a large range that is possible. Its potential to treat the malaise is obviously high but a lot will depend on what kind of a Lokpal Bill is finally enacted, and even more critically, how that legislation is implemented. The list of well-intentioned legislations effectively killed due to deliberate mal-implementation is much too long to be presented here. The fundamental issue underlying the current struggle in India is the distribution of power in society. As is evident, the functioning of the country is currently in the hands of the political class, the bureaucracy, and big business. It is these three sections of society who actually decide, through a complex web of inter-linkages – some deliberately forged and some evolved over time, how the country should be run. As is common in such situations, there are common interests cutting through the three groups, some of which are obvious and visible, and some are not only hidden from public view but are also very difficult to discern and extremely difficult to prove. The only possible way to know these is to make inferences by observing and analysing the overt behaviour of these groups. Despite the commonalities of some of their vital interests, the most natural and evident one of which is self-preservation, there are clear differences amongst them, primarily in their accountability. While each business is accountable to its shareholders or investors and the bureaucracy is accountable to its “appointing authority” which in the final analysis is the president or the constitution; the political class, or at least those who are elected and are in a position to legally influence government policy, are accountable to the voters, through the electoral process. The key issue is what kind of power do, or should, the elected representatives of the people have. The elected ones seem to be under the impression that once elected, they acquire absolute authority, and can do whatever they like, even if it is not in the interest of the people and the society at large. There are many instances of this kind of “arrogance of the elected” but it might suffice to mention just a couple. The most recent is a statement of the home minister in parliament on August 17. Newspaper reports have quoted P Chidambaram as saying, “The people have a right to vote us in and vote us out of parliament but no right to make law. That right has been given to us by the people.” Being an accomplished lawyer, Chidambaram cannot be faulted on the correctness of the letter of what he has said but the spirit of his statement is clearly indicative of arrogance and haughtiness. Chidambaram would do well to remember that no right given by one person or group to another is ever absolute, and that there always are some basic norms underlying such bestowal of rights or power. The people give the right to make laws to the members of parliament under the implicit assumption that the laws will be made in the spirit of the overall good. If that assumption is violated, then the implicit social contract becomes weak. It is for all to see who has greater responsibility of weakening the implicit social contract of democracy in India – the politicians or the people. Another recent example was another minister and eminent lawyer, Kapil Sibal, lecturing in a press conference on what is a fundamental right and what is not a fundamental right, apparently on the assumption that “the people” who have given parliament the right to make laws, do not understand complex issues such as fundamental rights. While we must respect Sibal’s view since he is an eminent lawyer, he may need to be reminded that this remains his individual opinion and the final arbiter of what is a fundamental right and what is not remains the supreme court. The above two examples are from the recent events but this phenomenon of arrogance of the elected, and their mistaken notion that, once elected, they have absolute and unfettered right to do whatever they like, even if it is against larger public interest, has been around for a long time, albeit the principle of checks and balances enshrined in the constitution has often protected the people against this. Here is an example from one of the earlier governments. The Delhi high court directed, in a judgment on November 2, 2000 (in Association for Democratic Reforms vs Union of India and Another, civil writ petition no. 7257 of 1999), that candidates contesting elections to parliament and state assemblies should file an affidavit, as a necessary part of their nomination paper, giving details of their criminal, financial, and educational background. The judgment was based on the voters’ right to know the antecedents of the candidates in order to make an informed choice while voting. The Union of India went to the supreme court in a special leave petition against the Delhi high court judgment as if disclosure of criminal, financial, and educational background of candidates contesting elections was not in public interest. Several political parties became parties to the appeal by filing applications to become ‘interveners’ and supported the stand taken by the Union of India. Sibal, who now seems to enjoy giving scholarly lectures to “the people” on fundamental rights, used to appear for the Congress, supporting the appeal filed by the NDA government. When the supreme court gave a judgment rejecting the appeal (civil appeal no.7178 of 2001, Union of India vs Association For Democratic Reforms & Another) on May 2, 2002, 22 political parties met in an all-party meeting on July 8, 2002, and decided that the supreme court judgment will not be allowed to be implemented, and if necessary, the Representation of the People Act will be amended in that very session of parliament. Seven days later, on July 15, 2002, a bill to amend the Representation of the People Act had been prepared to be introduced and passed in that monsoon session itself but it could not be introduced as the Lok Sabha had to be adjourned due to the petrol pump scam. The government of the day was not deterred and sent an ordinance to the president. The president returned the ordinance but the cabinet sent it to the president a second time. Under the established convention, the president had to sign the ordinance, and the Representation of the People Act stood amended. The ordinance was later converted into an Act by the same parliament that Chidambaram says has the exclusive right to pass laws, and the people cannot do anything once having elected the members of parliament. The ordinance, and the corresponding Act, were subsequently challenged in the supreme court in writ petition (civil) No. 515 of 2002 (Association for Democratic Reforms vs Union of India and another), and in a judgment on March 13, 2003, the supreme court struck down the ordinance, and the corresponding Act, as “unconstitutional, null and void”. The law minister who, if not initiated, at least approved, if not directly, at least implicitly, all these actions on the part of the government since he was heading the law ministry, was Arun Jaitley, the current leader of the opposition in Rajya Sabha. The reason for describing the last example in some detail is to show that all politicians, once elected, seem to acquire a certain arrogance, brazenness, and a sense of invincibility, forgetting that the authority and power bestowed on them by the electorate is time-bound and limited by the implicit contract of a democratic society, the most fundamental fact of which is the supremacy of the people. This brings us back to the nexus between the political class, the bureaucracy, and big business, or at least a significant portion of it. The latter two, not being accountable to people at large, can get away with their misadventures with the shield of the political class but the political class cannot get away for too long. It has got away for several years but the threshold of the people’s patience seems to have been breached by the events of the last few years. It is this arrogance of the elected that makes politicians say brazenly in television discussions that they give ticket to criminals during elections because other parties also do that, because their “winnability” is high, and because decent people cannot win elections, a phenomenon of which our current prime minister is a sad example. It is also the same arrogance that makes politicians say in open discussions that people should not go beyond a point in their agitations and demands, and not underestimate the power of the government. Such assertions of the enormity of state power are not in consonance with the fundamentals of democracy. How will the current imbroglio end? I don’t think anyone knows. It is worth noting that while all the parties in opposition are united and vociferous in supporting Anna Hazare’s right to protest, not one of them has said that it supports the Jan Lokpal Bill. Every single political grouping is hedging its bets by repeating ad nauseam that they are for a strong Lokpal but not one of them has done anything about it for 42 years, and are obviously not willing to do anything about it even now. All the opposition parties seem to be interested in is to enjoy the discomfort of the ruling coalition and earn brownie points for the next election. Even in this dismal scenario, one hope is that the political class will realise that the brazenness and arrogance of the elected has its limits, as does the tolerance of the Indian people. The agitation may fizzle out, there may or may not be an effective Lokpal, but the power that the people have tasted over their elected representatives will not be forgotten easily. One way out is for the political parties to move to a higher level of maturity and balance partisan party interests with national or broader people’s interests. They cannot limit themselves to being only framers and destroyers of governments, but they have to also become the protectors of national and people’s interests, and if at times the latter requires subordination of their partisan interests, they need to learn to do that. And one eminently sensible way to do that is for political parties to become functioning democracies in their internal functioning, and stop being feudal oligarchies they now are. The nation and the society will continue to be in a state of turmoil till political parties learn these lessons and start practising them. Chhokar is a former dean of Indian Institute of Management, Ahmedabad, and a founding member of Association for Democratic Reforms and National Election Watch.