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Shehjar Editors spoke with Kartikeya Tanna on the Jan Lokpal Bill and Anna Hazare's agitation which stormed the print and TV media in India for almost two weeks. Kartikeya gave his views on the nature of the agitation, on some unresolved aspects of the Bill and the likely course of the broader anti-corruption movement. Q: What do you think of Anna Hazare's fast unto death for the passage of Jan Lokpal Bill? Kartikeya: While Anna's courageous sacrifice has swept the mood of our nation for most part, there has been a lot of skepticism surrounding his method of protesting, the precision (or the lack of it) in Anna's demands and the fact that a lot of the noise around the movement reflected a strong enmity and intolerance towards politicians and institutions. However, I still feel that the movement has resulted in an overall net benefit for the country. People across the spectrum have been awakened and are more conscious than ever before. We have seen the youth focus on the merits and substance of the Bill and issues pertaining to a broader anti-corruption mechanism, even if the motive for doing that was a distaste for Anna's "blackmail". Also, a greater number of people revisited the Mahatma's writings and actions and his overall philosophy during our freedom struggle. A bookstore in Delhi recorded unprecedented sales for Swami Vivekananda's books. We can go at lengths to differentiate Gandhiji's approach with Anna's motives; the most significant difference being that Gandhiji never fasted unto death against the Establishment ie the British. His fasts were a means to expiate and atone for the wrongs and sins of his own people and thereby raise the moral consciousness of a larger community as to the harms resulting from those wrongs and sins. The greatest example which comes to one's mind is the fast unto death post-Partition to atone for the sins of Hindus and Muslims killing each other. We can, if we want to challenge the Gandhian identification of Anna's movement, go into more comparisons; passionate Gandhians competing with one another have already done that. But the most significant contribution of this movement has been to awaken us and even our politicians. The Parliament is now forced to enact the long pending Judicial Accountability law as well. Q: Is this movement a "second freedom struggle" as was popularly referred to by Anna and his team? Kartikeya: Absolutely not. If at all one wants to go down that route of identifying this movement as a "freedom struggle", the anti- Emergency movement was a far greater and more enduring and perseverant andolan. Lakhs of people were jailed in protesting Indira Gandhi's excess abuse of state power. I was not born then and there was no 24 hour media, but stories passed down by my father and his colleagues truly makes one realize the sheer significance and magnitude of that protest. Indeed, some amount of demagoguery did accompany Anna's movement and referring this andolan to a freedom struggle helps in spreading the passion among a greater number of people. But I prefer to consider this as a remarkable watershed event in India's modern history. We are a free democracy and we have built institutions which assist us in pursuing our entitlements and rights. Of course, these institutions far away from being perfect. But in shouting and demanding for our rights, we tend to forget our rightful duties as citizens. As much as it is our right to demand ideals like equality before the law and freedom of speech and expression, it is, likewise, our duty to constantly educate ourselves of institutions which provide us our rights. Rights will not flow directly from God or Up Above, but through institutions created by the State. If we don't actively participate in creation and evolution of institutions, which I consider a duty, we don't possess the right to demand our entitlements. Anna's fast infused this much required awareness, jagriti, among us to understand our systems, challenge the wrongs or the inefficiencies and bring pressure on our elected representatives to constantly improve the systems. Gandhiji has clearly instructed us in Hind Swaraj to diligently perform our duties as citizens of India before shouting for rights and entitlements. And it makes sense too. Our rights flow from our active performance of duties, not despite them. There exists a logical symbiotic relationship between duties and rights. We often say "what can one person like me do"? Just like Gandhiji, Anna Hazare showed what one man can do. Skeptics are asking what did he achieve after 13 days of fasting. The simple answer is that he managed to infuse a greater level of consciousness among us and a profound sense of duty which precedes any claim to a right. Q: But as you said, there was a strong anti-Neta and anti-institution feeling among people. How can this movement by Anna create a greater awareness among people at large on pursuing the patient and persevering exercise of evolving institutions? Won't people be more impatient with long-drawn processes of Parliament and governance? Kartikeya: This is where we require politicians and government servants to step up to their duties. But, let us not leave it all to them. The skilled among us need to contribute towards evolving ever better means of governance. Let us not assume that we will get our entitlements without systems or institutions. We will need them regardless of the anti-neta slogans. One positive consequence of the andolan has been reflected in Arun Jaitley's speeches in Parliament. There is a genuine reflection by politicians across the spectrum on improving our processes and governance mechanisms. And it is not an easy exercise, but one which requires participation from all stakeholders from all walks of life. If a governmental officer in a village is grossly inefficient or deliberately dishonest, the residents of that village can petition or protest as a united group against that. If some systems are redundant or cumbersome, participate in the process of suggesting better alternatives. It will require some initial sacrifice, but that is the duty which precedes the right. The land of Mahatma Gandhi cannot stop at the point of accepting things the way they are and continue blaming governments. This may sound like empty idealism and some may say "how can you expect a poor farmer struggling to earn his daily wage to participate in petitions and protests". I only want to ask them to suggest an alternative. Naxals have taken to arms in their protest against injustices meted out to them. But as we see, violence begets violence which in turn begets greater violence. All great countries have become so because of an active citizenry which has considered itself to hold a vital stake in the process of institution building and those institutions so built provide effective rights. This particular symbiosis between duties and rights has long been forgotten by us. Q: Moving to the specifics of the Jan Lokpal Bill, what do you think are the unresolved areas likely to create a deadlock? Kartikeya: Many experts have focused on three critical areas during Anna's andolan: inclusion of the PM, making the Bill applicable to the lower bureaucracy and allowing the Central Lokpal to intervene in selection and/or constitution of Lokayuktas at the state level. Before I explain some of that, I see an instant problem with the Lokpal as currently contemplated. Let me use an analogy of a dilapidated tall building (which you can assume is the current institutional framework filled with inefficiency and corruption). The Jan Lokpal Bill seeks to create four seemingly sturdy walls around the building so that it does not fall or crumble down, ie, in the form of a super-police which will mete out harsh penalties to corrupt and intentionally inefficient officers at all levels. Indeed, punishment for corruption works as a good deterrent and I don't at all object to that. But, in erecting these four sturdy walls, we are taking attention away from so many necessary avenues of improving the foundations and interior structures of the building. The building may never fall, but the walls around it won't internally strengthen it either. The building needs a slow and painful process of tightening the interior structures, making the electrical wiring safer, replacing the cement where necessary, inspecting all floors for latent cracks, asking residents to participate in the process of not misusing the building, cultivating a process of unity of action among residents and sacrificing some entitlements for the time being to make it safer for their children. And the four sturdy walls are also blocking the natural sunlight preventing residents from the vitamins obtained through the sunlight and getting natural disinfectants. All of the above measures can understood in our current context as improvising our already existing systems and institutions, making them more autonomous and transparent, strengthening our courts and law-enforcement agencies and making our various systems more "citizen-friendly". Rome was not built in a day; similarly, independent India cannot be a perfect nation in a day. There are always vested interests desirous of making systems complicated enough for their corruption and power. Yes, we have had slow improvement in our systems, but now with the power of the Internet, with better avenues for demanding accountability, with a vibrant competitive media and with rising literacy levels, we can achieve improvements faster. Let me give one example. The CBI, according to Section 6A of the DSPE Act, cannot even investigate allegations of corruption against bureaucrats of a level equal to or higher than joint secretaries (including ministers) without obtaining permission of the Central Government. Despite Supreme Court's earlier criticism of such a provision, the Parliament nevertheless passed it as law in 2003. Now, Parliament's authority to enact laws is supreme. Very few activists noticed this silent enactment. But it is easy to imagine what mischief this provision can create. The CBI has brilliant officers who, if left alone with their jobs, can do a terrific job. But if it has to obtain permission of the Central Government before even investigating corruption against a higher level bureaucratic officer or a minister, of course it will not be effective. If this one provision is removed, it can make such an intelligible difference in CBI's functioning. The Jan Lokpal agitation wants a super-police which even supervises the CBI, but how one wishes that the agitation also focused on removing this simple provision, ie, repairing this one small crack in the building. Very recently, the CBI raised some issues about Lokpal's supervision and has requested the Parliament Committee to ensure that the CBI has enough autonomy from the Lokpal. Q: Speaking of the unresolvable aspects of the Jan Lokpal Bill, can you explain the problems with Lokpal's intervention in states? Kartikeya: Our structure is a federal structure. When our Constitution was being created, lengthy debates were held on how and to what extent could the Centre, ie the Manmohan Singh government today, could intervene in institutions of governance and law-making for individual states. We have time and again seen confrontations between state governments and the Central Government. India, as you know, was never one vast geopolitical entity prior to independence. It was an amalgam of little o ver 540 provinces which were assimilated into a nation led by Sardar Patel. Readers of Shehjar will know the example of Jammu and Kashmir's accession to India and the introduction of Article 370. That obviously is a special case. For almost all states, the normal federal structure applied which meant that the Central Government could not intervene in some designated state matters as and when it liked. Law and order is one important "state matter". A large number of chief ministers do not agree with the Jan Lokpal being able to interfere in the state-level Lokayuktas. This is one area where the Bill will face obstacles. As for inclusion of PM, that area has been debated extensively. The basic issue is if the busiest man of India should be, and if so to what extent, subject to investigation by Lokpal during his or her tenure. For example, the US President is immune from certain investigations during the tenure of his Presidency. The other issue is the sheer magnitude of the task facing the Jan Lokpal and it's officers and personnel in our vast nation. Most likely, the officers and personnel will be drawn from our civil service. The idea of one man or a panel of three or even ten heading the Lokpal monitoring and supervising a vast number of complaints across the country is a seriously overwhelming idea. If the already existing basic institutions are bypassed by the Lokpal, how can the head(s) ensure honesty and transparency in Lokpal's redressal mechanism. Gandhiji always supported a highly decentralized system for our vast nation. Decentralization naturally encourages better community participation and the flexibility to adapt systems as the community want. The structure of the Lokpal as contemplated right now seeks to make the process of redressal of grievances and fight against corruption highly dependent on this one body. Q: One of your earlier articles on the Jan Lokpal Bill speaks about the possible infringement of separation of powers. Could you elaborate on that? Kartikeya: Under the current scheme of the Bill, the Lokpal intends to exercise functions that can clearly be considered "judicial" apart from policing, investigating and prosecutorial functions which can be considered as functions performed by the Executive. The scheme of the Act is devised so as to make Lokpal the receiver of complaints, investigator, prosecutor, judge, jury and the executioner. It is what I refer to as a system of "complaint slip (an aggrieved person complains about demand of bribe from an officer) to pink slip" (Lokpal having the power to dismiss him). The principle of "Separation of Powers" requires a country's system to keep the legislature (the body that makes laws), the executive (the body and institutions that execute the laws) and the judiciary (the courts that hand a decision in accordance with law) to function separately and independently of each other. This creates a system of checks and balances by each wing on the other. When a body has overlapping functions, it creates a dilution in accountability of that body due to dilution in proper checks and balances. With the Lokpal exercising powers and functions similar to the Executive and, to a significant extent, the Judiciary, this Bill might likely be held to infringe the principle of separation of powers. | |
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*Kartikeya Tanna is an attorney by profession and is a partner at Tanna Associates, a law firm in the State of Gujarat. Kartikeya is actively involved in current affairs around the world and has a special interest in politics. He regularly writes articles on laws, finance, politics and economics for various publications. He also maintains his blog at www.kartikeyatanna.com which contains a collection of his writings. | |
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Very informative and thanks shehjar for bringing this very informative interview.
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