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Towards an Informed Pre-Legislative Debate on the Lokpal Bill

by Kalpana Kannabiran, Rohini Hensman, Sumi Krishna, 22 August 2011

print version of this article print version - 22 August 2011

Each State Party shall, in accordance with the fundamental principles of its legal system, develop and implement or maintain effective, coordinated anti-corruption policies that promote the participation of society and reflect the principles of the rule of law, proper management of public affairs and public property, integrity, transparency and accountability.
— UN Convention Against Corruption Article 5(1)

The anti-corruption campaign led by Anna Hazare and his team has evoked a very mixed response from the Left and feminists, between those who rule out any association with the movement and those who want to be part of it. The campaign has also drawn unequivocal support from the right wing Hindutva forces (Baba Ramdev and Sri Sri Ravi Shanker for instance). Like the anti-nuclear struggle in Jaitapur and a few others, this campaign has been backed by ideologically and politically oppositional formations. While this might be reason for some discomfort, it is ultimately the goal of the protest that determines participation, even if this means the coming together of the Left and the Right. We believe, however, that there are other key issues that need to be debated on an anti-corruption platform. It is necessary to disentangle different strands of argument that figure in this discussion.

We support the fundamental right of the campaigners to the freedom of association and peaceful assembly to voice their opinions and engage in peaceful protest. We unequivocally condemn the arrest of Anna Hazare. We believe that preventive detention of conscientious protestors does irreparable damage to the fabric of democracy and undermines the spirit of the Indian Constitution.

That said, it is necessary to examine the goals of Anna Hazare’s campaign. On the face of it, this is a stand against corruption and a rejection of the government’s draft Lokpal bill. But clearly, it is not as simple as that. From the large-scale corruption that has ripped through the country recently to the petty corruption that has tortured all of us at one time or another, the phenomenon is a blot on public life that should certainly be eliminated. Instead, the government bill threatens draconian measures against persons making false complaints – which include imprisonment and compensation to public servant against whom such complaint is made (Section 50). This jeopardizes the security of whistle-blowers and is just one example of the government’s lack of seriousness in tackling the problem. But – and this is a big ’but’ – rejection of the government draft and enactment of strong anti-corruption legislation is not all that the Hazare movement is demanding.

What Anna Hazare and his colleagues are also demanding is that their particular draft – the Jan Lokpal Bill – be adopted by parliament without discussion or debate, without substantial criticism or revision, without looking at alternative drafts. And that this be done within a couple of weeks in the backdrop of Anna Hazare’s indefinite fast. Even if the Jan Lokpal Bill were flawless, this haste would be unacceptable. And the fact is that in its present form this is a flawed document. It seeks to set up an unelected body that would have power over the legislature, executive and judiciary, in theory with the mandate to root corruption out from governance structures. But given the tendency for power to corrupt, and for absolute power to corrupt absolutely, there is no safeguard against the very real possibility of a corrupt Jan Lokpal. In that event, according to the bill, there could be an appeal to the judiciary. But with the Lokpal overseeing the judiciary, what is to prevent a corrupt Lokpal from removing honest judges who might challenge their corruption? Or from removing honest politicians or bureaucrats who stand in the way of the corporations or NGOs it favours? It cannot even be voted out of power by a frustrated public! Not only will it be a failure to root out corruption, it will also strike a fatal blow against democracy.

Indeed, the proclamation by a member of Team Anna that ’Anna is India, India is Anna!’ with its disquieting echoes of both Rudolf Hess (’Adolf Hitler is Germany and Germany is Adolf Hitler!’) and Congress during the Emergency (’Indira is India and India is Indira!’) inadvertently reveals the profound authoritarianism that drives this agenda. Likewise Anna’s views on the death penalty, his response to a question at a televised press conference (on 21st August at Ramlila Grounds) that the people who had voiced specific criticisms should go to a mental hospital, and Team Anna’s rejection of a public consultation on the Lokpal legislation. The idea that one person can represent the interests of a nation divided by class, gender, caste, ethnicity, language and so much else is little short of grotesque. Even when Team Anna advocates a referendum as the way to resolve the issue, it is clear that the referendum will have only two choices: the government draft or the Jan Lokpal Bill. This is far from being a democratic procedure, not only because the vast majority of people supporting the Jan Lokpal Bill have no idea what it contains, but also because such a procedure leaves no room for a third alternative, much less agreement over some provisions and disagreement over others.

By contrast, the National Campaign for Peoples’ Right to Information (NCPRI), which waged a sustained grassroots campaign for the Right to Information Act, has put forward a multi-pronged approach to tackling corruption through ’collective and concurrent’ anti-corruption and grievance redress measures. The NCPRI’s basket of measures would establish a much more decentralised approach to the problem of corruption. Its proposals tackle a wider spectrum of issues than the Jan Lokpal Bill, while avoiding the massive concentration of power that constitutes a threat to democracy.

  • Separating grievance redressal from anti corruption mechanisms and establishing a new multi-tiered, decentralised grievance redress structure to tackle day-to-day grievances swiftly at different levels.
  • Establishing a National Lokpal to tackle corruption at the top – the Prime Minister, elected representatives and senior bureaucracy and all other co-accused including the private and the social sector
  • Strengthening the Central Vigilance Commission to tackle corruption at the middle level
  • Strengthening and passing the Judicial Accountability Bill, now in parliament, while maintaining its independence from the executive
  • Strengthening the Whistle Blowers Protection Bill now in parliament,

The NCPRI has consistently pushed for a public debate on the legislation before it is debated in parliament. A pre-legislative process and debate was indeed initiated, with the draft being prepared by and presented to a wide cross-section of people across the country, and revised several times in response to comments and concerns. Public participation in the framing of legislation and how this is facilitated are critical aspects of the working of democratic systems. This requires extensive local consultations with reasonable time frames and without inordinate delay. It also requires democratic mechanisms to prevent the consultation process being captured by particular sections of society.

Feminists and other progressive people of various hues who want to engage actively with a campaign against corruption should insist that a robust pre-legislative debate is non-negotiable. We should participate and determine the terms of the debate, with the support of an informed and inclusive media, rather than recede into a docile presence on media screens, with anchors determining the terms of the debate and cameras doing a head count. Instead of allowing our presence to be used by the media as evidence of ’civil society’ support, progressive voices need to articulate the deep disquiet over a monolithic Jan Lokpal Bill that promises to be authoritarian.

(Kalpana Kannabiran is Director, Council for Social Development, Hyderabad; Rohini Hensman is an independent scholar, writer and activist based in Mumbai; Sumi Krishna is an independent feminist scholar and writer based in Bangalore).