PRASHANT BHUSHAN and, one presumes, his father Shanti Bhushan, deserve credit for having steered the Lokpal Bill joint committee away from an abyss. Anna Hazare had accused the government of agreeing to include the prime minister within the Lokpal’s ambit and then backing out. A nettled Pranab Mukherjee’s response was that the sovereignty of Parliament could not be questioned. When he went on to reject Hazare’s 15 August deadline, saying that no one could dictate to Parliament when it should pass a Bill, he came close to triggering off another confrontation between the State and its subjects.
The central issues of the Lokpal Bill will soon be sorted out — and it is on these that the future of the country could hinge. While Hazare & Co are adamant that the prime minister cannot be above investigation, the government has agreed to let the Lokpal probe his/her conduct, but only after he/she has relinquished the portfolio. In this, it is Hazare & Co who are being unreasonable. The prime minister is not merely a representative of the people, but the head of State and the focus of both power and authority within it. This power and authority is by definition continuous for this continuity is the very essence of the State.
The power of the State cannot be exercised intermittently. It cannot be suspended, only transferred. And the transfer has to be permanent. In a democracy, once a prime minister demits power, he cannot get it back until the party re-elects him anew. And it is by no means obliged to do so. Thus if the Lokpal exonerates him after investigation, it will not have the power to restore him to office.
There are several other issues on which civil society representatives will have to yield ground if they want their efforts to be crowned with success. The first is that while the bureaucracy should, and indeed must, be included within its purview, the judiciary must be kept out of it. 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 passed last year. It is no one’s case that civil society should not examine its provisions and suggest changes if its representatives feel that the Act leaves too many loopholes. But that exercise should be kept separate from the attempt to curb corruption and bring accountability into the political system and the bureaucracy.
Yet another issue on which it is difficult to disagree with the government is the need to exempt the actions of Parliamentarians from its 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 the 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. For that is where sovereignty ultimately lies.
However, there is one area in which the government needs to give in to the representatives of civil society. This is to bring the entire bureaucracy within its purview and not, as the government’s representatives are suggesting, only joint secretaries and above. It is true that bringing 18 million civil servants under its jurisdiction could swamp it with work. For instance, the number of registered complaints against the police, of abuses of human rights, exceeds 56,000 a year. But the fact remains that 99 percent of the abuses and extortion takes place at the lower levels of the police and the bureaucracy. Since the bulk of it occurs in the states, curbing it requires giving the Lokayuktas the same powers of investigation and prosecution that the government has all but agreed to give to the Lokpal. However, in addition to this, the government should consider giving the Lokpal overarching powers of coordination so that it can initiate and supervise investigations to be made in more than one state
All this and more will be possible if the government and the representatives of civil society stop thinking of each other as adversaries and treat each other as partners in a common enterprise that can be the making of the country we all love and wish to serve. An active civil society is an invaluable moral compass in making course corrections in governance. It cannot be a substitute.
Prem Shankar Jha is a senior journalist