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No winners in this war

After six months of solidarity, the civil society group led by Anna Hazare is showing cracks on the contents of the proposed Lokpal Bill. Prem Shankar Jha writes.

india Updated: Nov 20, 2011 11:54 IST
Prem Shankar Jha

After six months of solidarity, the civil society group led by Anna Hazare is showing cracks on the contents of the proposed Lokpal Bill. While Hazare has adhered to a hard line and threatened to go on another fast, other equally dedicated and respected representatives have taken a more moderate line, accepting the need to keep the PM, the higher judiciary and the actions of MPs within the halls of Parliament and out of the lokpal’s purview.

Opponents of reform have welcomed the split as proof that civil society is a bunch of self-important do-gooders with little support among the people. They couldn’t be more wrong. Civil society is divided today not because it is weak but because a large segment of it is convinced that the government sincerely wants to restore integrity and accountability to the political system. Detailed descriptions by Salman Khurshid and Kapil Sibal of what the government has agreed to do have strengthened their belief that cooperation with the government will yield far surer results than confrontation.

Today, it is more important than ever that this cooperation continue. But for it to yield fruit, the government will need to go the extra mile to dispel the suspicions of civil society leaders that it is still bent upon diluting the Lokpal Bill till it is left with no real teeth. The two central issues that remain to be sorted out offer an excellent opportunity for both sides to demonstrate their sincerity. The first is the inclusion of the PM and the higher judiciary. The second is the limitation of the lokpal’s powers to the higher civil servants only.

In agreeing to allow the lokpal to oversee the government has already gone as far as it can without endangering the stability of future governments. It’s Hazare and his colleagues who are being unreasonable. The PM isn’t just a representative of the people, but the head of the government and, therefore, the single focus of both power and authority within it. This power and authority must be exercised continuously for its continuity. That is the very essence of the State.

A PM under investigation, whose reputation is under attack and whose future is in doubt will be unable to exercise State power. The resulting vacuum at the top cannot fail to endanger the country. So unlike an impugned MP or bureaucrat, the PM must immediately step down. So the power of the State cannot be exercised intermittently. It cannot be suspended, only transferred. In a democracy once a PM demits power, he can’t get it back until the party re-elects him afresh. Even if the lokpal exonerates him after investigation, it will not have the power to restore him to office.

The government is also entirely right to insist that the judiciary should not be subject to investigation by the lokpal. No judge to whom the lokpal sends a case will feel entirely free from pressure if he fears that acquitting the defendant could earn him its animosity. This does not mean that the judges should be exempted from accountability. But that should be ensured under the Judicial Accountability and Standards Act that was tabled last year. The lokpal should not be prevented from receiving complaints against the lower judiciary — where most of the corruption occurs — and passing it on to the authority concerned.

Yet another issue on which it is difficult to disagree with the government is the need to exempt the actions of MPs from the lokpal’s purview. This should remain under the privileges committee of the appropriate chamber and, admittedly, that committee can only be as good as its members. This means that buying votes of smaller parties, or securing defections through offers of cash, ministerships and other inducements may not come under the lokpal, but these sins need to be punished by the people who elected the offenders.

However, the government should give ground on two key issues. First, the immunity it is allegedly seeking for officers of the Prime Minister’s Office (PMO) should cover only actions they take in pursuit of their official duties. Second, the lokpal must have the right to investigate allegations not just against the higher civil service, but all central civil servants. This is because what the Indian public is seething about is not so much giant scams but the thousands of daily acts of extortion.

The government has rightly pointed out that the resulting case load could overwhelm the lokpal. But that is a problem for the lokpal to sort out. The government can’t deny this right to the lokpal saying that it is for its own good.

Prem Shankar Jha is a Delhi-based political and economic commentator

The views expressed by the author are personal

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