Translate consensus into action

Prime Minister Manmohan Singh has, in a gesture that possibly speaks volumes for his personal integrity, announced that the Prime Minister should not be exempted from the purview of the Lok Pal Bill, thus suggesting that the highest office in the country may be made statutorily accountable to the Lok Pal for any possible acts of corruption or impropriety. On the face of it, this is a move that must be welcomed, even applauded. Appearances, however, are often deceptive.

Reforming India’s polity is an urgent task, but one that will prove far from simple. Under the circumstances currently prevailing, the idea of the Lok Pal appears unworkable, particularly in view of India’s unfortunate experience with Commissions and statutory authorities in the past. There is some talk of "a multi-member institution with quasi-judicial powers", but the essential character of such an institution is such that it would either be dominated by politicians or by the higher judiciary. In the first option, the inevitable politicisation of the Lok Pal would be hastened, and it would end up little more than an instrumentality for petty political vendettas, with succeeding governments exploiting its mechanisms to target predecessor regimes. Complete autonomy of such institutions – with constitutional protection – would create the danger of ‘loose cannons’, a danger that has been realized in the case of certain other Constitutional authorities in the recent past.

The Indian experience with Commissions and Statutory Authorities has, in general, been adverse, and most of these offices tend to become the exclusive domain of the superannuated higher judiciary. There is no doubt that the judiciary has had some outstanding men, but, the regrettable truth is, their number has been diminishing continuously. The scope of picking out individuals with sufficient stature and integrity to oversee the work of the Prime Minister, from the existing pool of judicial leadership is severely limited. Scandal after scandal in recent years has demonstrated that the judiciary has failed even to set its own house in order, and, indeed, there has, at least in some cases, been a visible tendency to cover up wrongdoings within the fraternity, or simply to look the other way. The possibility of such a compromised institutional structure yielding the quality of men necessary to exercise any measure of non-partisan oversight over India’s highest offices – apart from the question of the integrity of the processes of selection – is remote. This problem is compounded further by the judiciary’s proclivity – invariably transferred to quasi-judicial bodies as well – to work at a snail’s pace, allowing each case or complaint to linger indefinitely. Given the nature of offices that would be under its review and the regular, often frequent, changes of political regimes in the country, it does not seem likely that such an institution, rooted in the agonisingly slow Indian traditions of judicial deliberation, would, in fact, be able to do justice.

The truth, moreover, is that there are, within the Parliamentary system, sufficient mechanisms available to hold the office of the Prime Minister, as well as of other Ministers and Members of Parliament, accountable for their misdemeanours and transgressions. These have failed because corruption has become endemic throughout all parties, and has undermined the will – though not necessarily the institutional capacity – of Parliament to act effectively against its own members, including the Prime Minister, in cases of wrongdoing. Parliament and the State Legislatures have, today, in substantial measure, become safe havens for deeply criminalized elements. News reports have suggested that at least 100 of the 543 Members of the present Lok Sabha face criminal charges, many of them for heinous crimes, a testament to the failure of both our Parliamentary democracy and our slothful judiciary that allows cases to drag on for years – and for even more extraordinarily long periods in cases that involve political personalities.

The degree to which the system is vulnerable to abuse is, in some aspects, illustrated by the case of Iqbal Kaskar, Dawood Ibrahim’s younger brother, who was extradited from Dubai with great fanfare in February 2003. The case of the murder of a customs official against Kaskar had collapsed in a Mumbai Court by August 2003. He currently remains incarcerated on charges under the Maharashtra Control of Organised Crime Act (MCOCA) in connection with a single case of illegal construction of the Sara Sahara Shopping Centre. From Jail, Kaskar filed his nomination for the Umerkhadi constituency – a stronghold of Dawood’s criminal empire – in the Maharashtra Assembly elections. It was only at the last moment that some sort of political deal resulted in his withdrawal.

The case illustrates not only the impotence of the criminal justice system in its current state of decay, to bring even the worst of criminals to justice, but also the degree to which such criminals now see political office as a guarantee of immunity against effective prosecution and police action.

With a political system so completely penetrated and subverted by the corrupt, the compromised and the criminalised, it must be clear that the Lok Pal will be just another element in the legal symbolism of probity and accountability, rather than an effective institution to attain these ends. Despite the ‘general consensus’ the Prime Minister referred to on the contents of the Lok Pal Bill, it is useful to remind ourselves that this Bill has, in various avatars, been tabled as many as eight times in Parliament over the past three decades, but has, each time, foundered against Parliamentary bad faith – the hiatus between rhetoric and real intent.

Can new institutions and laws really help India clean up politics, when we so obdurately prevent existing laws and institutions from working? That is the question that needs to be asked. When the laws for murder, for rape and for other heinous crimes are failing, in an overwhelming proportion of cases, to be applied; when membership of a State Legislature or of Parliament is seen as virtual immunity against the application of the country’s criminal laws; and when organised crime lords, murderers and rapists can realistically aspire to a seat in Parliament – what is the fig leaf of a Lok Pal expected to achieve?

If the ‘general consensus’ among political parties on the Lok Pal Bill is, indeed, a consensus against the criminalisation and corruption of politics, and not part of the political posturing that has become endemic even with regard to the most pressing issues – including those connected with national security – then these political parties should begin by translating this ‘consensus’ into effective action against the criminal elements within their own ranks. This is something no regime or party has ever even attempted to do, irrespective of their rhetoric while in opposition. Indeed, the issue of criminalisation of politics has consistently been raised before each new election – and each political party has eventually given out tickets to criminals, and has formed alliances with parties in which criminals are prominent. What real remedy can the Lok Pal offer to this malady?

(Published in The Pioneer, October 2, 2004)