Ambedkar’s way & Anna Hazare’s methods

JAN LOKPAL BILL

JAN LOKPAL BILL

BY SUKHADEO THORAT IN THE HINDU

Following Dr. Ambedkar’s example, Team Anna should use constitutional methods and enhance people’s faith in them. Otherwise it will convey the message that only coercive and unconstitutional methods work.

A group of people, with placards showing Dr. B.R. Ambedkar, staged a demonstration in Delhi a few days ago against Anna Hazare‘s proposals on the Lokpal and the methods used by his team. More often than not, Dalits look with suspicion on any attempt to tamper with the Constitution. Team Anna has, however, suggested that its Lokpal bill would benefit Dalits more than anyone else. This led me to look at Dr. Ambedkar’s position as compared to the mode of agitation being deployed by Anna Hazare and his team.

In his last, visionary speech after the submission of the drafted Constitution on November 25, 1949, Dr. Ambedkar warned of three possible dangers to the new-born democracy. These related to social and economic inequalities, the use of unconstitutional methods, and hero-worship.

Dr. Ambedkar first pointed to the contradiction between equality in politics in the form of one-person-one-vote and the inequalities in social and economic life. He argued that for political democracy to succeed, it needed to be founded on the tissues and fibres of social and economic equality. He warned that we must remove this contradiction at the earliest possible moment, or else those who suffer from inequality will blow up the structure of political democracy. Although we in India are trying hard to reduce the vast inequalities that exist, the working of political democracy is already under heavy stress due to discontent in some parts of country.

Dr. Ambedkar’s second, and more important, warning in the present context related to the methods to achieve social and economic objectives. He urged the people to abandon bloody as well as coercive methods to bring about change. This means abandoning methods of civil disobedience, non-cooperation, coercive forms of satyagraha and fast. Referring to the use of these methods during the British period, Dr. Ambedkar observed: “When there was no way left for the constitutional methods for achieving economic and social objectives, there was a great deal of justification for unconstitutional methods.” But using them since that period, in his view, was “nothing less than the Grammar of Anarchy.” He advocated that “the sooner they are abandoned, the better for us as a nation.”

Dr. Ambedkar’s third warning related to “hero worship.” He was immensely concerned over the political culture of “laying down the liberties at the feet of great men or to trust them with powers which enable them to subvert their institutions.” He believed that there is nothing wrong in being grateful to great men who have rendered life-long services to the country. But there are limits to gratefulness. No man can be grateful at the cost of his honour, and no nation can be grateful at the cost of its liberty. This caution is far more necessary in the case of the people of India than in the case of any other country, for in India, bhakti, or what may be called the path of devotion or hero-worship, plays a part in politics, unequalled in magnitude to the part it plays in the politics of any other country in the world, argued Dr. Ambedkar. He went on to add that bhakti or hero-worship in religion may be a road to the salvation of the soul, but in politics, bhakti or hero-worship is a sure road to degradation and to eventual dictatorship.

These views of Dr. Ambedkar also evolved through a much deeper commitment to constitutional methods and their use in the anti-untouchability movement during the 1920s and the 1930s. The 1920s and the 1930s saw a series of agitations led by Dr. Ambedkar to get public wells, tanks and Hindu temples opened to “untouchables.” In the present context, recalling two such incidents is very relevant, namely, the agitation for access to a water tank in Mahad, and for entry into the famous Kalaram temple in Nasik. In both cases, Dr. Ambedkar was up against violent high-caste Hindus, with the British sitting on the fence.

Dr. Ambedkar started the Mahad agitation in 1927, but the “untouchables” got access to the tank only in 1937 through a court order. The people of the high castes had managed a court order to ban the entry of “untouchables” into the tank on the grounds that it was a private tank. Dr. Ambedkar accepted the court order and discontinued a second march to the tank. But he fought through the courts and got justice in 1937, almost after 10 years. He did this using legal instruments and a peaceful mass movement, without the coercive means of fasts and hunger strikes.

Similarly, the agitation for entry into the Kalaram temple went on for four years, from 1930 to 1934. He discontinued the agitation in 1934 following opposition by priests, notwithstanding the support extended by Gandhiji. But he fought a legal battle, along with a peaceful agitation, for the next four years, and in 1939 ultimately secured entry to the temple for “untouchables.”

During the 1920s and the 1930s, Dr. Ambedkar combined mass mobilisation with legal methods in the anti-untouchability movement, but never allowed unconstitutional and coercive methods to take hold, despite instances of violent attack on “untouchables.” Once he came face to face with Gandhiji with the latter’s fast-unto-death and he had to compromise on the demand for a separate electorate with what is the present-day political reservation. Coercive means forced him to surrender the demand for a separate electorate, the consequences of which are visible today.

Team Anna should realise that the Indian Constitution provides ample opportunities for advocacy, through discussion and lobbying with parliamentary Standing Committees, Groups of Ministers, the Ministers concerned, the Prime Minister, courts, and above all through a peaceful agitation. With several political parties on their side, the possibility of reaching a middle ground is high. Experience with constitutional means shows that civil society activists, through their constant struggles, have persuaded the two successive United Progressive Alliance governments to acknowledge several basic rights and convert these into laws. The right to employment through the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA), the right to information, rights under the Forest Act, the right to education, and now the right to food, are some of the revolutionary measures that civil society has been able to accomplish through constitutional methods. It is an opportunity for Team Anna to use constitutional methods and enhance the faith of people in these; otherwise Team Anna will convey the message that only coercive and unconstitutional methods work.

As Dr. Ambedkar observed, due to certain aspects of Indian culture our people are highly vulnerable to hero-worship. How a yoga teacher could convert yoga devotees into religious devotees and finally into political supporters within a few years’ time is a classic example of what hero-worship and bhakti can do. Another religious preacher has threatened that he would use his religious followers for political end which he thinks does not require discussion with them as they follow him in whatever he tells them to do.

Anna and his team should recognise that for a new democracy like ours, which is operating within the framework of undemocratic relations based on the caste system, constitutional methods and social morality need to be cultivated and promoted with a purpose. The Lokpal Bill is too important a piece of legislation to be passed under threat and unreasonable deadlines. All its aspects need to be discussed with extreme care and with consensus among all sections. Dalits have begun to express concern about its implications for them. In a society where the anti-caste spirit and prejudices are present in abundance, they feel that given its proposed wide-ranging powers, it may be misused.

The Commissioner for Scheduled Castes reported about 11,469 complaints by Dalit government employees during the period from 2004 to 2010 that were linked to caste prejudice. Several thousand more complaints under the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, such as giving “false or frivolous information to any public servant and thereby cause such public servant to use his lawful power to the injury or annoyance of member of SC/ST” are waiting for justice. Therefore, Dalits have begun to seek safeguards against the complaints emanating from caste prejudices in the Lokpal Bill. I think the government has rightly brought the bill for an open discussion before the Standing Committee that comprises MPs from all parties, so that the Bill is discussed by all sections in a peaceful milieu and not under duress and force.

Anna Hazare knows that the road to social change is a difficult one. He helped Dalits in a number of ways, including by repaying loans taken by Dalits with contributions from villagers. Yet he could not bring about fraternity between them — Dalits continue to stay in segregated localities in his village. Corruption, like untouchability, is deeply embedded in the social fabric of our society. Therefore, besides legislation its eradication requires changes through education and moral regeneration.

(Sukhadeo Thorat is Professor of Economics, Centre for the Study of Regional Development, Jawaharlal Nehru University. E-mail: thoratsukhadeo@yahoo.co.in)

http://www.thehindu.com/opinion/lead/article2384849.ece?homepage=true

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Lessons in equity

Supreme Court of India

V. VENKATESAN in New Delhi  – FRONTLINE

The Supreme Court enunciates the virtues of state intervention in ensuring equity in higher education.

THE Supreme Court, in a recent case, examined the question of equity in higher education in India and laid out certain principles that could be relevant in every field of education. The case, Indian Medical Association vs Union of India, related to the Army College of Medical Sciences (ACMS), Delhi Cantonment, devising in 2008 its own admission procedure for the first year MBBS course from a predefined source carved out by itself and its parent society, the Army Welfare Education Society (AWES). The college sought to admit only students who are wards or children of current and former Army personnel and widows of Army personnel.

Students who otherwise would have been eligible for admission challenged the policy in a slew of writ petitions. The Indian Medical Association (IMA) also challenged it. The ACMS is recognised as a private, unaided, non-minority professional institution. According to a judgment of the Supreme Court’s Constitution Bench in TMA Pai Foundation vs State of Karnataka, which was further explained in P.A. Inamdar vs State of Maharashtra, all admissions to private, unaided, non-minority professional institutions should be based only on merit, which is to be taken as inter-se ranking of all students who have taken a common entrance test.

The ACMS’ admission policy was based on the belief that the wards of Army personnel suffer educational disadvantages compared with the civilian population and that this affects the morale of Army personnel. And it reserved 100 per cent of the seats for the wards of Army personnel. The Delhi government erroneously approved this policy. The Delhi High Court, where the petitioners first challenged the policy, too found nothing wrong with it.

The Supreme Court Bench comprising Justices B. Sudershan Reddy and Surinder Singh Nijjar, however, found that the ACMS’ admission policy set at naught the legislative intent in the Delhi Act 80 of 2007 to ensure excellence by mandating that all admissions be made on the basis of inter-se merit within each of the categories of students. The Delhi government’s permission to the ACMS to admit students who may have scored lower marks than others, both within the general category and in the reserved categories, resulted in the defeat of this legislative intent, the court reasoned in its order of May 12.

The Bench held that neither the AWES nor the ACMS was protected by any constitutional provision that allowed it to choose to be an educational institution serving only a small class of students from within the general pool. If indeed Army personnel now constituted a “Socially and Educationally Backward Class”, then under Clause (5) of Article 15, it was for the state to determine the same and provide for reservation to wards of Army personnel, the Bench suggested.

In the case of minority educational institutions, the state can relax its concern for merit on account of Clause (1) of Article 30, provided minority educational institutions maintain their minority status by admitting mostly minority students except for a sprinkling of non-minorities. With respect to non-minority educational institutions, the state can relax such concern for merit only with respect to reservation of seats for the Scheduled Castes, the Scheduled Tribes and the Socially and Educationally Backward Classes (SEBCs) as enabled by Article 15(5). Consequently, the Bench held that the choice of students by non-minority educational institutions could only be from the general pool with respect to non-reserved seats. They could not make further distinctions of their own accord, it said.

In the Mandal II case (2008), the Supreme Court left open the question whether the newly inserted Article 15(5) of the Constitution applied to private unaided non-minority educational institutions. This provision, inserted in 2006 by the United Progressive Alliance-I government, enables the state to make any special provision, by law, for the advancement of the SEBCs or the S.Cs or the S.Ts in the matter of admission to educational institutions, including private educational institutions, whether aided or unaided, other than minority educational institutions. The court left this issue open because none of the private, unaided, non-minority institutions had challenged the validity of this provision.

Justice Dalveer Bhandari, however, dissented from the other four judges of the Bench, holding that the imposition of reservation on non-minority unaided educational institutions was an unreasonable restriction on the freedom granted by Article 19(1)(g) to practise any profession or to carry on any occupation, trade or business.

In the IMA case, however, the court had an opportunity to examine this issue because counsel for the ACMS challenged the validity of Article 15(5). The Reddy-Nijjar Bench differed with Justice Bhandari and considered the inclusion of Clause 5 of Article 15 by the 93rd constitutional amendment as of great significance. “It clearly situates itself within the broad egalitarian objectives of the Constitution. In this sense, what it does is that it enlarges as opposed to truncating an essential and indeed a primordial feature of the equality code,” the Bench explained.

The Bench justified reservation as it is social circumstances that prevent some individuals from performing to their full potential and thereby competing on a level playing field with those who might satisfy the “desert based” criteria. The Bench disagreed that the principles enunciated in the Mandal II case – that egalitarianism was an intrinsic part of our equality code with respect to the field of education – could be limited to public and aided institutions.

What followed in the judgment was a brilliant articulation of the dangers of LPG – liberalisation, privatisation and globalisation. Agreeing that the extent of the state’s involvement in the field of higher education had dramatically declined on account of its financial position, the Bench linked this fact to the increasing privatisation and liberalisation of the economy. One of the essential elements of privatisation has been the demand of the private sector that the state reduce its deficits, even as tax rates were cut, by reducing its involvement in various social welfare activities. This, according to the Bench, has had an impact on the ability of the state to invest as much as it should have in education, including higher education.

The Bench explained that the burden of the state comprised not merely financial outlays. The burden of the state, it said, also comprised the positive obligations imposed on it on account of the egalitarian component of the equality code, the directive principles of state policy, and the national goals of achievement of an egalitarian order and social justice for individuals and amongst groups that those individuals are located in. “One cannot, and ought not to, deem that the ideologies of LPG have now stained the entire constitutional fabric itself, thereby altering its very identity,” the Bench observed.

Test of merit

The Bench’s reasoning against qualifying examinations or common entrance tests must wake society up. The test of merit, based on some qualifying examinations or a common entrance test, is prone to rewarding an individual who has a better family life, social exposure, and access to better schools and coaching classes, it suggested. The Bench cautioned that complete dependence on such tests would foreclose the possibility of individuals in the disadvantaged groups from gaining access to a vital element of modern life that grants dignity to individuals, and thereby to the group as a whole, both in this generation and in future generations. Therefore, the Bench held, the proper construction of Article 15(2) would in fact be to prohibit complete dependence on such context (social and educational backwardness) insensitive tests.

Under Article 15(2), no citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of state funds or dedicated to the use of the general public.

Reservation based on social and educational backwardness, the Bench said, would promote the selection of those who were truly meritorious in each group on account of their demonstrated ability to be in the higher rungs of achievement within comparable situations of life’s circumstances and disadvantages.

Therefore, it held that clause 5 of Article 15 strengthened the social fabric in which the constitutional vision, goals and values could be better achieved and served. The provision, the Bench suggested, could be likened to a necessary replacement and in fact an enhancement in the equality code so that it made the Constitution more robust and stable.

Pointing out that nearly 85 per cent or more of all engineering seats and about 50 per cent in the field of medicine are in the private sector, the Bench said the number of aided and government colleges in other fields had just not kept pace with the private sector. It asked: “If a vast majority of our youngsters, especially those belonging to disadvantaged groups, are denied access in the higher educational institutions in the private sector, it would mean that a vast majority of youngsters, notwithstanding a naturally equal distribution of talent and ability, belonging to disadvantaged groups would be left without access to higher education at all.” The Bench added that it would constitute a state of social emergency with a potential for conflagration that would be on an unimaginable scale.

The Bench concluded: “The rights of non-minority educational institutions to admit students of their choice, …if exercised in full measure, would be detrimental to the true nature of education as an occupation, damage the environment in which our students are taught the lessons of life, and imparted knowledge, and further also damage their ability to learn to deal with the diversity of India, and gain access to knowledge of its problems….”

The Bench thus held Article 15(5) and the provisions of Delhi Act 80, with respect to the various categories of reservation provided therein, to be constitutionally valid. The judgment, authored by Justice Reddy, reflects his judicial philosophy, which is also evident in his other judgments against globalisation and marketisation. Observers feel that the Supreme Court’s three-judge Bench currently hearing a case by some unaided private schools challenging the validity of the Right to Education Act will find the principles laid down by Justice Reddy relevant in deciding it.

http://www.frontlineonnet.com/stories/20110729281503700.htm

For a sensitive law

V. VENKATESAN  in New Delhi  – FRONTLINE

 The 117-year-old Land Acquisition Act cries out for reform, but there is resistance to introducing positive changes.

The Land Acquisition (Amendment) Bill, which seeks to amend the Land Acquisition Act, 1894, has had a long period of gestation. The Union Ministry of Rural Development initiated the process of amendment way back in October 1998. But it took around 10 years for the government to bring the Bill before Parliament.

The 1894 Act was long used for acquisition of land for public purposes and also for companies. However, it was widely felt that the Act required changes in order to strike a balance between the need for land for development and other public purposes and the need to protect the interests of persons whose lands are acquired.

The Land Acquisition (Amendment) Bill, 2007, was thus introduced in the Lok Sabha by the then Rural Development Minister, Raghuvansh Prasad Singh, on December 6, 2007 (Bill No.97 of 2007). It was then referred to the Standing Committee on Rural Development. The committee submitted its report to Parliament on October 21, 2008, and official amendments to the Bill were cleared by the Group of Ministers in December 2008. It was rechristened the Land Acquisition (Amendment) Bill, 2009, and passed by the last Lok Sabha on the penultimate day of its tenure, February 25, 2009 (Bill No.97-C of 2007). The government tabled the Bill in the Rajya Sabha on February 26, 2009, but could not ensure its passage before the House adjourned. The Bill lapsed after the constitution of the current Lok Sabha and the return of the United Progressive Alliance (UPA) to power in May 2009.

It is indeed surprising that the Bill, on which there are intense disagreements between the government and civil society, came close to enactment in 2009. It is equally paradoxical why the UPA-I government hastily secured the Bill’s passage in the Lok Sabha when it knew that it was near-impossible to do so in the Rajya Sabha, where it lacked a clear majority, and that the House was about to adjourn. Records of the Lok Sabha debates of February 25, 2009, reveal that the government sought the Bill’s passage in the absence of a substantial section of the Opposition and amidst protests from the remaining members in the House against some of its provisions.

The Lok Sabha debates of February 25, 2009, may only be of academic interest as the UPA-II government has promised to consider the criticisms against the Bill since then before introducing a revised Bill during the next session of Parliament. Nevertheless, the debates are worth revisiting, if only to understand the flaws in the Bill as originally conceived.

Raghuvansh Prasad Singh had claimed, while seeking members’ support to the Bill, that the Bill was pro-farmer and pro-poor. The government felt that the Bill’s salient features, specifically the abolition of the provision enabling the government to acquire land for companies, would make it acceptable to the MPs. According to the Bill, the government will acquire 30 per cent of the land for a private company only after the company has purchased directly 70 per cent of the land it requires. The Bill also promised to compensate farmers dispossessed of their land on the basis of the market price before their displacement. The Bill also promised to return the land to the owner if it was not used for the purpose for which the acquisition was made.

But these salient features paled into insignificance in the face of mounting criticism against the Bill. The Standing Committee had recommended that the 1894 Act should be repealed and new comprehensive legislation enacted in its place. The reason for this recommendation was that the 2007 Bill sought to make exhaustive amendments to the Principal Act, which might create confusion and legal complications. The committee rejected the government’s contention that the Parent Act with the proposed amendments must continue as a large number of very old cases involving the Act were still pending in various courts. However, this has not found favour with the government.

Public purpose

The Standing Committee felt that the Principal Act defined “public purpose” in a detailed manner and did not provide any discretion to the government. The committee, therefore, opposed Section 5(v)(f)(iii) of the Bill, which includes ‘any other purpose useful’ to the general public for declaring a project as public purpose. The committee feared that such discretion would enable the government to give benefit to a particular person or company. The revised Bill retains this controversial provision without addressing the committee’s concerns.

The committee found that the criteria of government acquiring land for a private company where 70 per cent of the land has been acquired by the company (that is, the body which requires land for setting up public welfare projects) were contradictory. It is because resettlement and rehabilitation (R&R) would be taken care of by the government for 30 per cent of the population (residing on land acquired by the government) and by the company for the 70 per cent.

As the social impact assessment study would be done only for families residing on land acquired by the government, the committee felt that benefits provided to these families would be governed by criteria that would not apply to families whose land had been acquired by the company. This would result in contradictions and frictions among families living in the same area. The committee, therefore, unanimously opposed the 70:30 criteria. The government ignored this concern, too, while revising the Bill in 2009.

The committee felt that the Principal Act, while defining ‘public purpose’, included housing without qualifying it. Such a definition, it said, was too liberal and included the acquisition of land for private companies for the purpose of building high-income group residential premises. Therefore, it recommended that the word ‘housing’ should be replaced by ‘housing for lower and middle-income groups’.

But the Bill, as revised by the government in 2009, includes housing “for such income groups as may be specified from time to time by the appropriate government” as part of its definition of public purpose. It is clear that such a definition defeats the very objective of the committee’s recommendation.

Market value

The determination of the market value of the land being acquired is another contentious issue. The committee had recommended that the highest price of sale deed, as indicated in the sale deeds of the last three years, plus 50 per cent of the highest price should be the criterion for assessing and determining the market value of the land being acquired. The committee felt that in tribal areas, since the land could not be purchased by non-tribal people, tribal people usually do not get adequate compensation when land is acquired and market price fixed.

Therefore, the committee recommended that in tribal areas the criterion for fixing market price should be the highest price of a sale deed of the adjoining non-tribal blocks/village for the last three years plus 50 per cent. The government ignored this recommendation, too, in the revised Bill.

The National Advisory Council (NAC), in its 13th meeting held in New Delhi on May 25, recommended that compensation for those who would lose land should be six times the registered sale deed value, including solatium. The assignees of government land should also be entitled to the same compensation, it suggested. Those who lost land should be offered the option of receiving all or part of their compensation in the form of annuities, it suggested.

The committee further found that sometimes the government acquired land for a public purpose and later used it for a purpose different from the originally intended one, resulting in the price of the land appreciating several times. Whereas the people residing in the surrounding areas benefited greatly by the project set up on the acquired land, the persons who lost their land to the project did not get any portion of the resultant hike owing to the acquisition.

The committee, therefore, felt that some share of the resultant hike owing to land acquisition should also go to the persons on whose land the specific project was set up. It thus recommended that the Bill have provisions to give some extra monetary benefits to the affected person/family in such cases. The revised Bill ignored this recommendation too.

During the Lok Sabha debate in February 2009, some members questioned the government’s claim that most of the recommendations of the Standing Committee had been accepted while preparing the revised Bill. Sandeep Dixit of the Congress reminded the government that there was a consensus that both the Land Acquisition (Amendment) Bill and the R&R Bill would be merged. The merger was considered necessary because drafting differences in the two Bills caused confusion with regard to similar provisions.

The NAC also recommended a single comprehensive law that discouraged forced displacement and minimised adverse impact on people, habitats, the environment, food security and biodiversity. It also recommended that the law should ensure that the process explored all possible options of acquiring more barren and less fertile and waste land before acquiring agricultural land.

It should also define comprehensively project-affected persons/families and provide for a just, timely compensation, resettlement and rehabilitation package through a humane, participatory, informed, consultative and transparent process, allowing for effective and fair implementation.

The NAC also made other significant proposals. Those who lost livelihoods (and not just land), too, should be compensated, it proposed. Another proposal was that agricultural workers, artisans, fisher-folk and forest gatherers, if they lost their livelihoods because of the acquisition of land, should be entitled to a grant amounting to 10 days’ minimum wages a month for 33 years.

Yet another proposal was that if land was acquired for a public purpose and not used within five years, private property that was acquired should be returned to its original owners. But the Bill provides for the reversion of the unutilised land only to the appropriate government (in the case of government-acquired land) and not to private owners. Here, the government apparently shared the Standing Committee’s view that “public purpose” was very vast and the appropriate government would be at liberty to use the acquired land for any purpose coming within the definition of public purpose.

But the government ignored another important but related recommendation of the Standing Committee. The committee had recommended a safeguard against acquisition of excess land at the notification stage so that the question of barring the government from transferring the acquired land for a purpose other than the public purpose did not arise.

The government’s sincerity in revising the 2009 Bill in the light of the recommendations of the Standing Committee, the NAC and civil society groups is now on test.

http://www.hinduonnet.com/fline/stories/20110617281201900.htm

Jan Lokpal: an alternative view

K.N. Panikkar  IN THE HINDU

Given the scale of corruption in India, the constitution of a Jan Lokpal will be a welcome initiative. But the proposed Lokpal has the makings of a super-monster.

After 42 years of hesitation and uncertainty, an institutional mechanism to deal with the all-pervasive incidence of corruption in India is in sight. What apparently moved the state machinery was the agitation spearheaded by Anna Hazare, which drew spontaneous support primarily in the metropolitan cities. Within five days of Anna Hazare starting a ‘fast unto death’ at Jantar Mantar in New Delhi, the Government of India conceded his demand to constitute a committee to draft a bill to establish the institution of a Lokpal at the Centre.

This was quite different from the past practices of the Indian state. Remember Potti Sriramulu, who at the end of a prolonged fast sacrificed his life for the formation of Andhra Pradesh. And Irom Sharmila has been on a hunger strike for more than 10 years, demanding the repeal of the Armed Forces (Special Powers) Act.

Nevertheless, the developments leading to the constitution of the committee to draft a Lokpal bill, and the provisions of the draft bill, raise fundamental questions about the working of Indian democracy. Some of these questions demand urgent attention before a bill is piloted in Parliament.

In the matter of deciding the composition and the terms of reference of the committee, Anna Hazare appears to have exercised decisive influence. He chose the “representatives of civil society” and the government accepted his suggestions. The committee consists of five “representatives of civil society,” and five Union Ministers representing the government. Welcoming the initiative, the Prime Minister has said that the “coming together of the government and civil society is a step that augurs well for democracy.” But it should be apparent that no democratic principle was followed in the constitution of the committee. The civil society representatives were handpicked by Anna, and the government nominees do not reflect the diverse political opinion that is represented in Parliament.

A Magsaysay award winner, Anna Hazare brought to the movement against corruption his considerable reputation and the moral strength derived from his social work in a village in Maharashtra, Ralegan Siddhi. But the methods he has adopted to press his demand have raised eyebrows. Many people believe that the hunger strike he undertook and the ultimatum he served were coercive in nature and have no place in a democracy. The attempt made by some of his followers to equate him with Gandhiji need not be taken seriously, as neither his ideas nor his methods justify such a claim. Nevertheless, his Gandhian credentials have earned him recognition from the state and civil society. Although he claims to be apolitical, he entertains a deep distrust of politics and politicians.

Paradoxically, he has sought the help of the political system to deal with the malaise of corruption. If he had chosen the moral path, he would have addressed the social conditions that made corruption possible. Yet, supported by a few civil society activists and projected by a section of the English media as a saviour of the nation, Anna acquired a larger-than-life stature that appeared to have punctured the government’s self-assurance.

His agitation has been lionised by some people as a second freedom struggle. But it appears to have escaped general notice that “the assertion of a few to represent the majority” without any representative character is essentially anti-democratic. The emotional, even unthinking, support that Anna Hazare commanded is understandable, given the widespread corruption indulged in by the political elite and the bureaucracy.

However, it is the timing of the agitation rather than the moral content of the campaign that accounts for the popular response. The neo-liberal policies pursued by the ruling elite had opened up the possibility of corruption in the massive transfer of public assets and the promotion of corporate interests through political patronage. Both the National Democratic Alliance led by the Bharatiya Janata Party and the United Progressive Alliance under the leadership of the Congress were bedfellows in promoting privatisation and inviting foreign capital to modernise India. The unprecedented levels of corruption in recent times are a concomitant of the economic conditions created by liberalisation.

Corruption is a complex issue that is embedded in bureaucratic rigidity and issues of economic access and political power. In this sense, the state is the main promoter of corruption. It cannot be reduced to a question of morality alone, nor can a solution be found by punishing individuals as a deterrent. Such a solution, however, will be most welcome to the state and its functionaries, and even to the liberal intelligentsia. It appears that corruption is a great unifier. For Anna Hazare’s anti-corruption platform attracted the former police officer Kiran Bedi and Arya Samaj leader Swami Agnivesh, along with communalists like Ram Madhav and religious entrepreneurs such as Baba Ramdev and Sri Ravi Shankar on the same platform. Not only were communalists and rightwing elements part of his entourage, but Anna extended his ‘blessings’ to the likes of Narendra Modi by praising the Gujarat model of development, ignoring in the process the moral problem that is so dear to his heart.

It is tragic that a person who believes that morality is neutral is being celebrated as the ‘saviour’ of the nation in some quarters, including the government. But the state’s favorable demeanour towards Anna is not surprising. So long as Anna Hazare, or for that matter anybody else, does not raise systemic and institutional issues, and only champions reformist measures, the state will have no problem in promoting them. In fact, the state’s attempt will be to ‘instrumentalise’ them.

As a result, Anna Hazare and his committee may end up as apologists for the state-run machinery of corruption. For it is not the absence of law that prevents action against the guilty, but the absence of a political will to do so. For a crisis-ridden government, the periodic appearance of the likes of Anna Hazare, and their reformist agendas, are safety valves. The government functionaries who are sharing the table with Anna now may help create another fortress around the beleaguered state.

The committee that was quickly constituted on the basis of mutual consent between Anna and the government has started its deliberations. More than one draft bill was presented at its first meeting, and therefore it is premature to discuss the provisions. Yet, there are some visible directions. Anna Hazare’s authoritarian approach to social problems, as is evident in the social ambience created in Ralegan Siddhi, and the principle of centralisation of authority that the state follows (in the matter of the National Council for Higher Education and Research Bill, for instance) find a common resonance in the drafts. They envision the Lokpal functioning in a social vacuum as a super-judicial authority, undermining the existing judicial system — which, all said and done, has withstood the pressures and preserved the rights of citizens. There is nothing in the draft to suggest that the Lokpal will bring to bear a greater sense of transparency and accountability of the system than what the existing institutions have so far achieved.

The aim of the bill is not to prevent corruption but to punish the corrupt. In this respect, the draft does not provide an approach that is qualitatively different from that of the existing institutions of the state. Only when a transparent system is put in place will the prevention of corruption become possible. Social audit does not necessarily create such transparency. The process of decision-making has to be fundamentally altered in order to ensure transparency. The targets should be the conditions that make corruption possible; that requires a complete overhauling of the existing mode of government management.

Given the scale and influence of corruption in India, the constitution of a Jan Lokpal will be a welcome initiative. But the proposed Lokpal has the makings of a super-monster. By absorbing all existing anti-corruption agencies, the Lokpal will have complete powers of independent investigation and prosecution. It will be an institution with overriding powers — but without any accountability. As such, it goes against all norms of democratic functioning. If the Jan Lokpal is to live up to its jan character, its authoritarian and centralised structure should be dispensed with and it should be turned into an instrument of people’s empowerment. A beginning towards this end should be made at the formative stage itself by sending the draft bill to every panchayat for discussion, so that nation’s conscience is truly aroused.

(Dr. K.N. Panikkar, a former Professor of the Jawaharlal Nehru University, is at knpanikkar @gmail.com)

http://www.hindu.com/2011/04/20/stories/2011042054561000.htm