The way out

As the public support for Anna Hazare's fast swells by the day, the United Progressive Alliance government's reaction is a bewildering mix of dithering, denial, moral confusion, and fear. On the face of it, Prime Minister Manmohan Singh's statement that there was a “lot of scope for give-and-take,” and the opening of backroom channels to talk to Mr. Hazare, may suggest flexibility and conciliation. But if the back-of-the-mind calculation is ‘how long can this 74-year-old man hold out at Ramlila Maidan before he is hospitalised and put on a drip?' the government and the Congress party would be committing a grievous blunder. Withdrawing the Lokpal Bill – which is widely perceived to be a farce – has become an urgent political imperative. Unless this is done, the exercise of addressing the contentious issues will carry no credibility.

What are these contentious issues? According to Prashant Bhushan, a key member of Team Anna, in order of priority the first issue is selection and removal of the Lokpal – which should be a fully empowered statutory institution with administrative, financial, and functional independence from the government. The civil society objection to a selection committee in which the government nominates five of the nine members, and also has the power to suspend the Lokpal, is unanswerable. (The five members in the government's Lokpal Bill are the Prime Minister, the Speaker, a Union Cabinet Minister, an ‘eminent jurist,' and a person of ‘eminence in public life.') The key challenge in India is doing away with the notorious non-independence of the process of investigating and prosecuting the corrupt, especially those in high places. The Jan Lokpal Bill's provision for a two-stage process of a search committee and a selection committee dominated by independent former constitutional authorities, in which the only politicians would be the Prime Minister and the Leader of the Opposition, has a far better logic and appeal.

The second issue to be resolved is the proposed inclusion in the Jan Lokpal Bill of “provisions for Lokayuktas in the States to deal with public servants of the State.” This demand by Team Anna bristles with difficulties. The creation of Lokayuktas is currently understood to be in the jurisdiction of State legislatures and having it legislated by Parliament would seem to go against the principles of federalism and States' rights under the constitutional scheme.

The third issue to be resolved is the question of jurisdiction of the Lokpal. Team Anna's demand that in addition to Ministers, Members of Parliament (for acts committed outside Parliament), and Group ‘A' officers, the lower bureaucracy and, at the other end, the Prime Minister must be brought under the jurisdiction of the Lokpal has the virtue of consistency. The provision in the Jan Lokpal draft to transfer the anti-corruption wing of the Central Bureau of Investigation to the Lokpal is in tune with this logic. However, the demand for bringing corrupt acts of MPs in respect of their speeches or votes in Parliament under the Lokpal's jurisdiction comes up against Article 105 of the Constitution, which deals with the powers, privileges, and immunities of Members of Parliament. This constitutional question will need to be resolved one way or another but it is unlikely to be a deal breaker in a serious dialogue process based on give-and-take.

Fourthly, Team Anna's demand that a grievance redressal system – backed by a provision mandating every public authority to prepare a citizen's charter and fulfill its commitments to citizens within a specific time limit – should be created under the Lokpal may not relate strictly to the issue of corruption. But there can be little doubt that a grievance redressal system is a progressive idea whose time has come. Agreeing to provide for this in a separate law will be a good solution. The Jan Lokpal draft's provisions for transparency and accountability of the Lokpal, for the encouragement of whistle-blowing on corruption in any public authority and for “full protection” to whistle-blowers, and the safeguards against entertaining vexatious complaints, such as the requirement that permission to investigate or prosecute the Prime Minister, Ministers, and MPs must be obtained from a seven-member Bench of the Lokpal with strong legal credentials, are sound and ought to be welcomed.

There is no logic in insisting that a sitting Prime Minister must remain outside the Lokpal's ambit in a country where the Constitution provides equality to all and where no one enjoys immunity from the provisions of criminal law. On the other hand, bringing the judiciary, including judges of the High Courts and the Supreme Court of India, under the jurisdiction of the Lokpal has not found much purchase with political India and, in any case, is likely to be struck down as unconstitutional by the courts. But this particular demand made by Team Anna may be tactical. It seems designed to pressure the government to agree to introduce legislation for setting up a credible, independent Judicial Conduct Commission, which is empowered not merely to look into the misconduct of judges but also to investigate allegations of corruption against them.

Whatever be one's attitude to the agitation symbolised by Mr. Hazare, it is quite remarkable that it has not seen a single untoward incident on the street. But a serious deterioration in his health could lead to the situation spinning out of control. It will certainly open a new stage in the mass mobilisation and struggle against corruption and the high-level cover-up of corruption. The UPA government must seize the moment, open and fast-track a dialogue with Team Anna, other civil society organisations, and, importantly, all political parties to settle legislation for a no-nonsense, independent, credible, and workable Lokpal to investigate and prosecute corruption by public servants at all levels.