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Friday, June 10, 2011

Who will bell the cat? Jan Lok Pal Bill to Stop Corruption

 
Last week’s campaign by Anna Hazare and colleagues raised very important questions about accountability, state, civil society, political means and ends. Critics of the campaign to get the Jan Lok Pal Bill adopted by the Government of India have found fault primarily with the means used by Anna Hazare and by the content of the draft legislation upon which the campaigners were insisting. (1) There has already been extensive commentary on these so this essay will focus on the question of accountability.

Accountability is one of the oldest questions in the study of politics. As social contractualists would tell it, the tale goes that the state was forged by the common need felt by individuals for common laws enforced by a mutually agreed authority. But if we just look at the way the three most prominent thinkers from this school described this authority (ie the state), we can see that the accountability question is rooted in the very nature of the state. Hobbes saw a state that was absolutely powerful, embracing and controlling every aspect of life; the citizen had virtually no rights—except life--vis-à-vis the state. Locke’s state was a carefully drawn up contract in which the state had a regulatory role but could not infringe on life, liberty and property rights. For Rousseau, the expression of society’s “General Will” was sovereign—the most abstract, perhaps most expansive of the three. The three thinkers’ descriptions serve as a quick doodle that highlights the push-pull tension intrinsic to the state-society equation. 

The most commonly told Indian story about the origin of the state bears some resemblance to this. The decline of society necessitates the appointment by a king, who is a manifestation of Vishnu, but at the same time, the king’s powers are not absolute as the story of Vena, arbitrary and corrupt ruler, shows. He was dethroned and beheaded by sages, while the earth, unable to bear his abuse, went into hiding. Kautilya’s Arthasastra gives individuals the right to resist a bad king. And much discussion in the two epics centres on the qualities and practices of good kings. In other words, there is nothing new or exotic about the question of accountability.

State, society, civil society, people
States, through their agents and agencies, perform (or should perform) certain useful functions. Defence, law and order and creating some common rules and instruments for a given population are the core but depending on the history and context of the state, other functions such as development might also be added to this list. There is a point in the performance of each of these functions where the state’s activity and interaction may hurt citizens and communities within. Language policy and redistribution of resources are two examples. 

The relationship between state and society is a symbiotic one. States are born out of society, in a way, and draw their values, agents and histories from society. But they are not co-terminous with society. A single state may be home to many ‘societies’ as people define themselves in multiple ways, intersecting or overlapping, collectively (Bengalis, Sikhs, Dalits, English-speakers) ; and a single society may transcend the borders of a state (Shaivites). 

The extent to which states are embedded in or autonomous of the societies that constitute them is a subject political scientists take an interest in. One of the markers of political modernisation was that the state would be more and more autonomous of society, a function of both the growing power of the state as of changes in society. Such a state was considered better placed to direct social and economic change. In Indian political thought, one of the big questions is the king-priest relationship, but both operate within the common framework of the values of society in a given place and time. The modern Indian state is relatively autonomous of society, given its origin in a constitutional framework. The potential for antagonism between state and society is likely greater when the state enjoys greater autonomy and has an agenda of social change. 

So much for state, society and individuals, but what is civil society? Everyone seems to understand what ‘civil society’ is but it is very hard to arrive at a common definition. The most pedestrian definition might be that the term is a rubric for all collective activities in society other than those organised by the state or part of the economy (market and otherwise). This immediately raises questions about religious organisations, caste panchayats, trade unions and so on: are they civil society? The answer to that question is as varied as the actors that count themselves in and are counted in civil society. The more important question may be: What is the role of civil society in balancing the equation between society and state? This is, after all, one of the questions that the recent campaign has raised by seeking a role for eminent persons from civil society in drafting and enforcing laws that create accountability. 

Meeting the ‘accountability’ challenge
The essence of the accountability challenge is to make sure the state and its agents deliver on all their mandates without infringement of citizen’s rights. Moreover, it is to facilitate communication between state and society so that the actions and policies of the state reflect the changing needs and demands of society. Accountability is seen as a check on the state’s exercise of its powers. But as this is not a new political problem, it is useful to look at some of the instruments devised over centuries to resolve it.

‘Separation of powers’ and ‘checks and balances’
A beginner in a politics class learns these terms as ways to check the absolute power of rulers. Montesquieu first wrote about separation of the power of the state, advocating that the executive, legislative and judicial powers of a state be reposed in different offices to prevent their concentration in the hands of one. Montesquieu wrote during the reign of Louis XV, when France’s absolute monarchy was still at the zenith of its power and when the excesses of that power were becoming evident. His ideas became very influential outside France, and the new American enshrined his ideas as the system of ‘checks and balances’.

While today, the American President is often described as the “most powerful man on earth”, in reality the genius of the system is that no branch of government is completely autonomous of the other. This was a response to both the autocratic absolute monarchies prevalent in Europe at the time (and heading for revolutionary collapse) and the newly evolving Westminster system in England where the lines between the executive, legislature and judiciary were blurred. When the Indian Constitution was written, while the Westminster model was largely retained, there were two important departures that the Constituent Assembly adopted. The first was to set up a separate Judiciary, with an apex court distinct from Parliament. Over time, the Indian judiciary came to exercise ‘judicial review’—the right to review laws made by the legislature for their constitutional validity—which was an American innovation. The second departure was that India is a federal state, and the second house of Parliament was not made up of knighted and landed peers but members elected by the legislatures of Indian states and union territories. 

A fear that all the powers of a state, all its resources, will be concentrated in the hands of one or a few is an old fear. Most constitutions address that fear in some way and most constitutional debate centres on how power should be distributed and shared—both to benefit the most people and to prevent corruption and abuse. 

When in the 1970s, there was talk about a ‘committed judiciary’ and a ‘committed bureaucracy’, these ideas were met with great resistance. The ability of the judiciary to act independently has been a great bulwark against poor governance, human rights violations and corruption, and has created value for the independence of the Election Commission, Vigilance Commissioners and other statutory bodies. A series of upstanding officials in the top posts has conflated the institution’s independence with integrity. However, the fact remains these are not elected positions and beyond a point, not accountable to the people of India. The concerns that surround the Planning Commission and now, the National Advisory Commission, also apply to these offices—and that of any Lokpal—that policy is being made by appointed rather than elected officials.  

The ombudsman
By now, we’ve all read about how the ombudsman’s office is a Swedish institutional innovation. In 1713, Sweden’s King Charles XII was away from his capital pursuing distant conquests. Unsure of whether his officers were working in accordance with the law, he created the office of the ombudsman to oversee their working. The ombudsman was a representative of the executive. In 1809, Sweden’s new constitution created the office of a parliamentary ombudsman with the power to investigate and prosecute grievances, oversee public servants and identify and advocate good administrative practices. This is the ombudsman model that has been adapted in many parts of the world. 

In India, the suggestion to have an ombudsman-like post was introduced in political discourse by the first Administrative Reforms Commission in 1969. (2) The Lokpal would officiate as a public grievance officer at the central government level and Lok Ayuktas would do the same in the states. Since the 1980s, several states have passed Lok Ayukta legislations and appointed ombudsman officers whose powers vary from state to state. At the central level however, multiple efforts to establish a Lokpal did not bear fruit. Appropriate legislation was introduced 10 times between 1969 and 2011, with no success. 

Apart from the cynical explanation that self-serving legislators would hardly have prepared their own nemesis, what are some of the reasons these drafts did not pass? There are unresolved issues surrounding the structure, jurisdiction and powers of the Lokpal. First of all, should the office of the Lokpal mean a single individual or a multi-member panel? This is more easily resolved than the suggestion that the office of the Central Vigilance Commissioner and the Central Bureau of Investigation should be merged into the Lokpal to create an anti-corruption body. The relationship between the Lokpal and the courts and parliament also remain to be defined. In other words, four decades on, we have not been able to decide what this office should look like. This is partly a function of the challenge of determining jurisdiction. 

One important hurdle is to decide which government offices should fall under the purview of the Lokpal—all public servants, political functionaries, parliamentarians, ministers, prime minister—there has been no consensus on any of this. Moreover, in a hierarchy-conscious society and secrecy-conscious state, it is suggested that inquiries against some functionaries should require prior sanction. Should the Lokpal merely look to corruption charges and complaints about non-delivery of services or should the Lokpal also hear commercial and contractual matters? An anti-corruption office might receive allegations that a particular official acted in their self-interest (by asking for a bribe, allocating resources a certain way) or a complaint that a citizen was inconvenienced or hurt as a result of poor administrative responses. The question of jurisdiction also extends to defining which of these (or both) a Lokpal should hear.
The question of power is as contentious as the question of jurisdiction. The Lokpal could be set up as an advisory office, which receives grievances and advises the government to act on them. It could also have the power to investigate and prosecute. If investigative and vigilance agencies were merged with the Lokpal, it would presumably be a far more powerful body. In that case, the question also arises as to whether the Lokpal should be limited to acting on written complaints or whether the office may initiate its own actions independently. 

These are not small matters and they are not contentious merely because they open up turf-battles between ministries. There is also the broader question of checks and balances in government and fitting a new, independent statutory body into that framework. 

Civil rights
Rights are the ‘thus far and no further’ line between state and citizens. While there are other mechanisms that create a relationship where state agents are responsible and accountable to citizens (representative institutions and voting, for instance), rights define the relationship between state and society, state and individuals. The constitutions of most states now include a Bill of Rights, and states are charged with protecting their citizens from the violation of those rights by other citizens. Individuals and communities also enjoy rights vis-à-vis the state—political rights, civil rights, cultural rights and increasingly, economic rights. 

The Indian Constitution guarantees fundamental rights (to life, to equality, against exploitation, to freedom, cultural and educational rights) and also the right to constitutional remedies.(3) These constitutional remedies include the writ jurisdiction of the high courts and Supreme Court which can be invoked to ensure that the state protects the fundamental rights of an Indian citizen. There are five such writs: Habeas corpus (which is used to challenge unlawful detention); mandamus (whereby a public official can be instructed to carry out official duties and protect rights); quo warranto (which questions a public official’s authority to decide or act in a certain way); prohibition (which results in a higher court issuing a ‘stay order’ to stop implemention of a decision under challenge); and certiorari (which allows a higher court to transfer a case or a particular process to a better-suited office if need be). Four of the five writs relate as much to the question of accountability as they do to violation of individuals’ rights. 

Civil society has used both the language and the instrument of rights to create more participatory processes in development and social change arenas. It has also highlighted the close relationship between accountability, rights and welfare. The Right to Information, enacted as law in 2005, is a result of grassroots movements making and articulating this connection, rather than city-based think-tanks holding seminars about it. From the villages of Rajasthan and the villagers’ outraged insistence on knowing what was happening to public resources, came the national campaign for the Right to Information. Transparency and insisting on transparency are vital instruments for enforcing accountability. Since the passage of the RTI Act, RTI petitions—which are very easy to file—have been used across policy sectors and levels of governance. Vinta Kamte used an RTI petition to access the phone and mobile records of key actors on the night of 26/11/2008, when her husband was killed in the terrorist attack in Mumbai.

The media
Press freedom is one of the pillars of democracy, and in India, for more than four decades, investigative journalism has left tabloid columns behind to become a marker of serious purpose in the mainstream. The Indian media work in an atmosphere of relative freedom compared to many other settings, and their work exposing corruption or violence has often been important, but their credibility has also been dented in recent years.

Most recently, the Radia tapes showed how closely knit India’s elite is—their phone calls, their references to each other, their sharing of inside information, their confidence in their influence. The disclosures adversely affected many reputations but journalists were possibly worst-affected. Even before the Radia tapes though, the Press Council of India’s report on ‘paid news’ described different ways in which journalism was compromised by the close association of editors, owners and business. The practice consists in the purchase through roundabout or indirect means of column space on the news and editorial pages of newspapers. This practice tricks the reader into believing that what is really an advertisement is factual newsreporting, and it also constitutes financial malpractice by both the purchaser and the media company. Election candidates and business houses are both known to engage in this practice. The real damage is to the ability of the news media to be independent and vigilant observers who bear witness. The now-common practice of investigative and ‘sting’ reporting is now also an instrument for the same vested interests. 

On the other hand, the media have found a new, hitherto unlikely ally, in ‘ordinary’ citizens, who armed with mobile phones and social networks, are extending the reach of the press in three different ways. They are reporting from where they are with text and video events that unfold around them as well as exposes of inefficiency and malfeasance. They are offering opinion on blogs and through text messages, extending the community of the disappearing op-ed page far beyond its historical reach. They are voting in spot polls, allowing media agencies to take dipstick readings of public opinion. The combination of media advocacy and citizen activist-journalism has resulted in instant mobilisation, especially around urban events and interests. The protests that followed the 26/11 attacks and the current support for the Jan Lok Pal Bill are both examples of how powerful this combination has become.

When you overlay the evidence of corruption and cronyism in mainstream media organisations and the power of this combination, the result must raise red flags for any thoughtful observer of politics and society. Used wisely and cautiously, this is a democracy’s biggest asset. Thoughtless and emotional responses however, can create pressure for outcomes that are sub-optimal in the long run. 

The power of protest
Morchas. Rallies. Candlelight vigils. Silent marches. Padayatras. Sit-ins. Dharnas. Relay hunger strikes. Hunger strikes. Fasts unto death. Gheraos. Walk-outs. Go-slows. Work-to-rule. Strike. Flash strike. General strike. Bandh. All-India bandh. The vocabulary of non-violent protest is especially rich and innovative in India. The crown jewel of this treasury is surely, satyagraha—non-violent resistence or soul-force are common translations.(4)

The idea of satyagraha draws more from ideas in spiritual traditions that connect inner transformation to social transformation, than from theories of resistance and revolution. The character of the satyagrahi is thus central to satyagraha; readiness for satyagraha is an objective in itself. Some of the qualities that Gandhi sought in satyagrahis were honesty, self-discipline, faith in democracy, belief in the law so that disobedience is really a conscious departure, patience and forbearance, courage, especially the courage to trust the adversary, and self-effacement. Satyagraha was never to be coercive, but to seek a transformation in the other’s attitude. There was no place for anger (nor outrage?) in satyagraha. Satyagraha was also to be undertaken by those directly affected by a situation, not another on their behalf. For any satyagrahi, the inner quest for truth and the outer struggle for it were of a piece. 

Gandhi is sure of the power of this approach to political action, as now are most Indians. Of the different ways to undertake satyagraha, fasting—which directs the action at the self—is the most powerful. Gandhi wrote in Young India, in 1927: “Since satyagraha is one of the most powerful methods of direct action, a satyagrahi exhausts all other means before he resorts to satyagraha. He will, therefore, constantly and continually approach the constituted authority, he will appeal to public opinion, educate public opinion, state his case calmly and coolly before everybody who wants to listen to him, and only after he has exhausted all these avenues will he resort to satyagraha. But when he has found the impelling call of the inner voice within him and launches out upon satyagraha, he has burnt his boats and there is no receding.”

In other words, street action—satyagraha or otherwise—must follow the unsuccessful use of all other methods. 


But who will bell the cat?
The task of enforcing accountability rests ultimately with citizens. The terms and conditions of citizenship in a democracy include an implicit undertaking by citizens to remain informed—of rights, of laws, of policies and of current affairs—and exercise their rights, including the right to vote. In India, as in other democracies, they also have the right to file for constitutional remedies through a variety of writ petitions. 

Civil society brings to this the advantage of acting collectively, as it reflects the diversity of interest and temperament of the citizenry at large. Drawn from this same body of citizens, neither civil society nor government can claim a monopoly on virtue and integrity. Acting collectively in civil society organisations empowers citizens, but the collective energy of the group also reinforces special interests and entrenches positions. This is one reason that no group in civil society or no coalition of groups can claim legitimately to represent all citizens the way elected representatives of a legislature can, even with all the limitations of representative electoral democracy. 

There are three very important functions that civil society can perform better than the individual citizen. First, it is easier for a group to marshal the technical, material and financial resources for certain courses of action, whether it is an RTI or writ petition. Second, an organisation is better placed to undertake a sustained and systematic programme of research and public information on specific issues than most individuals. This includes gathering the learnings of grassroots organisations and the documentation of social movements, informing in turn research that is oriented towards policymaking. Finally, civil society organisations are sometimes in a position to create and facilitate interactions between government and different groups of citizens on particular issues. All are essentially long-haul functions. Insofar as civil society organisations show the patience to undertake these functions, one measure of the responsiveness of a democratic government is their openness to inputs and initiatives from civil society. 


(1) Some examples: Economic and Political Weekly, What ‘Movement’ is this anyway? April 16, 2011, http://epw.in/epw/uploads/articles/15939.pdf; Pratap Bhanu Mehta, Of the few, by the few, Indian Express, April 7, 2011, http://www.indianexpress.com/new; Pratap Bhanu Mehta, What’s in a solution? Indian Express, April 14, 2011, http://www.indianexpress.com/; Prashant Bhushan, Jan Lok Pal Bill: Addressing concerns, The Hindu, April 15, 2011, http://www.thehindu.com/opinion/lead/article1696970.ece; Manoj Mitta, Lok Pal Bill: United in opposition, civil society a divided lot, Times of India, April 7, 2011, http://articles.timesofindia.indiatimes.com/; Shuddhabrata Sengupta, At the risk of heresy: Why I am not celebrating with Anna Hazare, Kafila.org, April 9, 2011, http://kafila.org/2011/04/09/; Harini Calamur, My issues with the Proposed Jan Lok Pal Bill, April 6, 2011, http://calamur.org/gargi/2011/04/06/; The Acorn, Against Jan Lok Pal and the Politics of Hunger Strikes, National Interest, April 8, 2011, http://acorn.nationalinterest.in/2011/04/08/against-jan-lok-pal-and-the-politics-of-hunger-strikes/.
(2) The best resource on the Lok Pal Bill is the webpage maintained by PRS India: All about the Lok Pal Bill, http://www.prsindia.org/index.php
(3) The Constitution of India is available online at http://indiacode.nic.in/coiweb/coifiles/part.htm.
(4) Resources for the section on satyagraha are drawn from the websites run by the Bombay Sarvodaya Mandal and Gandhi Book Centre (http://www.mkgandhi) and Gandhi Smriti and Darshan Smriti (http://gandhismriti.nic.in).

(Swarna Rajagopalan is a Chennai-based political scientist. She is the founder of Prajnya Initiatives for Peace, Justice and Security, a Chennai-based non-profit.) 


 

Forget yourself for others, and others will never forget you.

1 comment:

Anonymous said...

Now we need to start the movement

www.jaagore.com