Justice Sawant’s remarks on Anna Hazare

“When the social power is used irresponsibly, or to subvert the constitutional authority, it is hardly distinguishable from terror.”

The Maharashtra state government instituted a Commission of Inquiry under Justice P B Sawant, in September 2003 to inquire into allegations of corruption and maladministration against several people, among them Anna Hazare. The Commission submitted its report on February 22, 2005 and has been placed online (by Sampath Bulusu on June 8, 2010).

It goes into the minutae of the allegations and a cursory reading suggests how the enormity of red tape might cause people—like Anna Hazare—acting in good faith to commit technical violations of the law. Justice Sawant dismisses most of the allegations against Mr Hazare, but finds his trust acting illegally in at least one matter (see pages 269-271). The message is clear and ironic in the light of Mr Hazare’s demand for more bureaucracy and more laws: government encroachment on the citizen’s economic freedom creates a cesspool that criminalises ordinary citizens, that in turn breeds official corruption.

If we see Mr Hazare as an ordinary person—as this blog does—these transgressions are minor, excusable and should not cause us to doubt his personal integrity. Those who believe in the extraordinariness of Mr Hazare, however, should introspect.

That apart, Justice Sawant’s comments on Mr Hazare’s method of fighting corruption need more attention. Given that the latter is at the forefront of a movement to create an all-powerful super-watchdog, it is germane to look into his previous record.

6. There is no doubt that the participation in elections is not the end-all of the citizen’s role in democracy. The mere fact that the citizens have the power to change the government or to replace their representative by another in the next election, does not prevent them from exercising their other democratic rights during the period between the two elections. It is a mistake to believe that the only duty of the citizens in the democratic governance is to exercise their right to vote. The right to vote is only one of the democratic rights of the citizens. The citizens have a fundamental right to participate in the day to day governance of the society.

The mode and manner such participation may vary and may include all peaceful activities from petitioning to the government to taking out processions to register protests or to demand particular actions. The citizens may also undertake constructive activities, with or without the assistance of the government to improve the conditions and quality of the social life. Both the agitational and the constructive activities have become necessary in the present democratic societies, since the so-called democratic societies have limited democracy and that too only in their political life. Beyond the right to vote and the right to contest in the elections,the political democracy confers no other right. In the absence of the social and economic democracy, even the rights to elect and to get elected remain on paper for a majority of the people. With the enormous social and economic inequalities which are growing everyday, the right to vote itself may be manipulated, while the right to contest elections has become the preserve of the wealthy few. Thus, the equality, which is the basis of democracy, does not exist even in the formal political process.

7. This is because the so-called democracy as has been practised, has made no change to the class-structure of the society. On the other hand,it has deepened and widened the class distinctions. The ruling class is not interested in bringing about the social and economic democracy. On the other hand, since it can survive and thrive only on social and economic inequalities, it is interested in perpetuating them. Hence,the work by the civil organisations aimed at reducing the inequalities and their harsh social consequences, becomes all the more necessary.

The agitational activities have however to be carried on by observing certain norms. Not only have they to be peaceful, but also legal. A care has also to be taken to see that they do not lead to anti-social activities or become extra-constitutional centres of power. Such a development will itself encourage lawlessness and spell out the end of the rule of law. The mode of agitation has further to vary according to its object and the social conditions obtaining at the time. Else,it will not only not achieve its object but will prove counter-productive. It has to be remembered that the agitational activities also constitute a social power, which is as much liable to be abused as the political power. When the social power is used irresponsibly, or to subvert the constitutional authority, it is hardly distinguishable from terror.

8. When instead of the system, the individuals are targeted by the public agitation, several untoward consequences follow. As the present inquiry has revealed, while making the allegations of corruption,the complainant Shri. Hajare relies exclusively on the information supplied to him by his workers or on the contents of the representations made to him by the discontented. The information thus made available may not all be disinterested and may be motivated by various considerations, including personal, political and corrupt. In any case, such information coming from whatever source it may, has to be verified at least by giving an opportunity to the person against whom the complaint is made. This is an elementary precaution which has to be taken before making the individual a target of agitation.

As has been admitted by Shri. Hajare, the persons against whom he receives complaints, are not even intimated by him about them. They have, therefore, no opportunity to reply to the charges in the complaints. Shri. Hajare gave two reasons for dispensing with the said basic requirement viz. that this Andolan has no funds to call for the explanations from the concerned individuals, and secondly, his team of lawyers clears the complaints before the agitation is started. The first reason is both strange and indefensible, while the second is as much unjustified.

If the movement against corruption, which he has started, does not have sufficient funds even for the postal correspondence with the persons concerned, certainly he cannot make the targeted individuals suffer on that account. It is further not his case that even his lawyers give an opportunity to the persons concerned to explain the charges against them before they clear the complaints for agitation.

It must be realised that when persons like Shri. Hajare who have come to be respected by the society on account of their laudable work in other fields, publicly accuse any person for his misdemeanour, the people come to believe it intrinsically, and the person concerned earns a social odium for life-time, even if later he comes to be cleared of the charges. There have been cases where persons have been victimised either by public or private complaints, at the strategic moments in their life and career. The blackmailers, in particular, take advantage of such situation.The adequate precautions, which even otherwise are a must, become all the more necessary in such movements.The social power should not become or allowed to become an engine of oppression of the innocent. [Justice G B Sawant Report pp22-24, emphasis added]

Against Jan Lok Pal and the politics of hunger strikes

Tackling corruption requires economic reforms and a popular re-engagement with electoral politics

The idea of a Jan Lok Pal is flawed and profoundly misunderstands the causes and solutions of corruption in India. It seeks to create another chunk of government, more processes and rules, to solve a problem that, in part, exists because of too many chunks of government, too many processes and rules. [See Pratap Bhanu Mehta’s column and this editorial in the Business-Standard]

If the Jan Lok Pal presides over the same system that has corrupted civil servants, politicians, anti-corruption watchdogs, judges, media, civil society groups and ordinary citizens, why should we expect that the ombudsman will be incorruptible? Because the person is handpicked by unelected, unaccountable ‘civil society’ members? Those who propose that Nobel laureates (of Indian origin, not even of Indian citizenship) and Ramon Magsaysay Award winners should be among those who pick the Great Ombudsman of India—who is both policeman and judge—insult the hundreds of millions of ordinary Indian voters who regularly exercise their right to franchise. For they are demanding that the Scandinavian grandees in the Nobel Committee and the Filipino members of the Magsaysay foundation should have an indirect role in selecting an all-powerful Indian official. [See this post at Reality Check India]

The argument that people should be involved in drafting legislation is fine, even if it misses the point that the government is not a foreign entity but a representative of the people. It is entirely other thing to demand that the legislation drafted by an self-appointed, unaccountable and unrepresentative set of people be passed at the threat of blackmail. If we must have representatives of the people involved in lawmaking, we are better off if they are the elected ones, however flawed, as opposed to self-appointed ones, whatever prizes the latter might have won.

The Jan Lok Pal will become another logjammed, politicised and ultimately corrupt institution, for the passionate masses who demand new institutions have a poor record of protecting existing ones. Where were the holders of candles, wearers of Gandhi topis and hunger strikers when the offices of the Chief Election Commissioner, the Central Vigilance Commissioner and even the President of the Republic were handed out to persons with dubious credentials? If you didn’t come out to protest the perversion of these institutions why are you somehow more likely to turn up to protest when a dubious person is sought to be made the Jan Lok Pal?

But this is us. Given this reality, the solution for corruption and malgovernance should be one that does not rely the notoriously apathetic middle classes to come out on the streets. The solution is to take away the powers of discretion, the powers of rent-seeking from the government and restore it back to the people. This is the idea of economic freedom. Societies with greater economic freedom have lower corruption. We have long argued that we are in this mess because we have been denied Reforms 2.0.

How can we have Reforms 2.0 if “those politicians” are unwilling to implement them? The answer is simple: by voting. Economic reforms are not on anyone’s political agenda because those who are most likely to benefit from them do not vote, and do not vote strategically. At this point, it is usual to hear loud protests about how voting doesn’t work, most often by those who do not vote. This flies in the face of empirical evidence—when hundreds of millions of people turn up to vote. If it were not working for them, why would they be voting? They might not be demanding Reform 2.0, but something else, and are getting what they want. Instead of ephemeral displays of outrage—what happened to those post 26/11 candle-light vigils?—it is engagement in the electoral process that is necessary. There are some innovative ideas—like that of voters associations—that can be attempted.

There are no better words than those of B R Ambedkar on the place of satyagraha in India after Constitution came into force on 26th January 1950:

“…we must abandon the bloody methods of revolution. It means that we must abandon the method of civil disobedience, non-cooperation and satyagraha. When there was no way left for constitutional methods for achieving economic and social objectives, there was a great deal of justification for unconstitutional methods. But where constitutional methods are open, there can be no justification for these unconstitutional methods. These methods are nothing but the Grammar of Anarchy and the sooner they are abandoned, the better for us.” [B R Ambedkar/Constituent Assembly]

In my view civil disobedience in general and hunger strikes in particular must be used in the most exceptional circumstances where constitutional methods are unavailable or denied, and only till the time constitutional methods remain unavailable or denied.

Some contend that the system isn’t working, or has been so perverted by the incumbent government, that it is necessary to resort to public agitation. This is a dubious argument. Constitutional democracy is an enlightened way to make policy by reconciling—to the extent possible—the diverse interests, opinions and levels of political empowerments of a diverse population. Any other way amounts to coercion in one form or the other.

If we are to allow that hunger strikes and street protests do better than constitutional methods, then how would you decide issues where there are sharp differences? If two Gandhians go on hunger strikes asking for polar opposites, do we settle the issue by seeing who gives up first? What if competing groups escalate the agitation to violence against each other? Should we condone civil war?

The working of those constitutional mechanisms can and must be improved. By us. The anti-defection law must go. India doesn’t have a comprehensive law governing political parties. It needs one. Police reforms have been stalled for decades. There is a substantial reform agenda that must be pursued. By us.

However, the inability to implement these reforms is no excuse for resorting to civil disobedience or, as it happens in other countries, calling in a dictatorship of the proletariat, the military or the priesthood.

The Jan Lok Pal bill is not a solution to the problem of corruption. It risks making matters worse. Hunger strikes are not the right means to promote a policy agenda in a constitutional democracy like ours. The promoters and supporters of Jan Lok Pal and the public agitation to achieve it are profoundly misguided. Their popularity stems from having struck a vein of middle class outrage against the UPA government’s misdeeds. That doesn’t mean that the solutions they offer are right.

The Acorn opposes Jan Lok Pal and the politics of hunger strikes as much as it opposes corruption and misgovernance.

Related Links: Offstumped has a series of posts on the subject. See also Atanu Dey, Satyameva Jayate, Sanjeev Sabhlok and the Filter Coffee here on INI. The March 2011 issue of Pragati covered these themes: see Rohit Pradhan’s take on the importance of constitutional morality.

Pax Indica: Your own private foreign policy

In foreign affairs, unlike the government, civil society can speak the language of values

In today’s Pax Indica column, I call upon individuals, NGOs and media to take a greater interest in foreign affairs:

Over the last few days, before S M Krishna called his counterpart offering help, many of my friends complained that India — that is, the Indian government — had not offered any humanitarian assistance to flood-ravaged Pakistan. ‘Politics’, some said, should be set aside in the face of the enormous tragedy that has befallen the Pakistani people. Others argued that giving aid will change the ‘politics’ itself. For when ordinary Pakistanis see India as among those who helped them during their time of need, hearts and minds will change, undermining the anti-India position of their government.

On the other side were those, like Atanu Dey, who offered the compelling logic that since money is fungible, giving money to the Pakistani government for flood relief is equivalent to giving money to that government to fund cross-border terrorism or build nuclear weapons. Moreover, another argument goes, since the wishes of the Pakistani people are weakly expressed in their government’s policies, changing hearts and minds won’t make the military establishment stop terrorism directed against India.

Wherever you stand on this issue, what you will notice is that people implicitly assume that when it comes to foreign affairs “India” means only the Indian government.

A few years ago, after France passed laws restricting the wearing of turbans, people lobbied the Indian government to intervene on behalf of French Sikhs. The Indian prime minister sent a special envoy to Paris, to “impress upon President Chirac the significance of the turban to the Sikh faith”. The irony of one famously secular state taking up a religious cause with another famously secular state apart, this was an unwarranted interference into the domestic affairs of another democratic republic. And again, when Malaysia’s Tamil minority was out on the streets protesting against discrimination, Dr Singh’s government gave in to public pressure, gratuitously expressed concern over that country’s domestic politics, and received a rebuff.

Now, the Indian government is obliged to protect the lives and interests of its citizens anywhere their blue passports takes them. It has little business taking up cudgels of behalf of people who might be of Indian origin, but are nevertheless citizens of another country. You could say that everyone has a responsibility to protect human rights in authoritarian regimes, but if the other country happens to be a democratic republic with rule of law, what grounds does the government of India have to interfere?

Does this mean Indians should stop caring about what happens around the world? Not quite. It only means that Indians should stop seeing the government has having a monopoly on foreign affairs. There is nothing to stop individuals, NGOs and media from taking an active interest in the world outside India’s borders. There is nothing to stop us from standing up for whatever cause we like. There is nothing to stop us from drawing attention to the plight of the world’s oppressed people, collect funds, mobilise volunteers, build institutions, lobby foreign governments and deliver social services beyond India’s shores.

Sure, we could also persuade the Indian government as part of our activism, but what stops us from getting on with it in spite of the Indian government? A large number of NGOs at home do valuable work despite the government. Why should it be any different abroad?

In fact, it is in India’s national interest for civil society to become a foreign policy player in its own right. Governments are constrained by realpolitik. They follow the grammar of power. Civil society does not have the same constraints. It is free to speak the language of values. The Tibetan struggle, for instance, is one area where India’s overall policy has benefited from citizen activism. Similarly, after the 2005 earthquake, Infosys announced that it would provide Rs 10 million in aid to Pakistan. Many of us donated money for Haiti’s earthquake victim through the Red Cross and through religious institutions. These are, however, isolated and sporadic instances.

We should ask ourselves why India’s civil society is not a significant international player? The primary reason, I would say, might be the mindset that sees the government as the Grand Solver of Problems. As long as this mindset is dominant, lesser hurdles like lack of financial resources, organisational capabilities and channels of action will appear insurmountable. Another reason is our tendency to contemplate our collective navels, for there are innumerable, seemingly intractable problems at home that deserve our attention. “[So] far as areas outside the physical boundaries of India were concerned” the historian K M Panikkar noted, “we were content to live with the attitude of complacent ignorance…This has been the weakness of India in the past, this sense of isolation and refusal to see itself in relation to the states outside the geographical limits of the subcontinent.”

This, though, is changing, as economic growth increases disposable incomes and as we come to be better informed by the world’s media. That begs the question: why is it that we are only informed by the world’s media? Isn’t it a grand lack of imagination that hundreds of our TV news channels fight for ratings by covering essentially the same domestic stories, only differentiating themselves using ever higher decibel levels? Isn’t it ironic that it is the likes of Qatar’s Al Jazeera and China’s CCTV-4 that challenge the Western media’s hold on the grand narrative? As Indian civil society takes a greater interest in the world, one or more Indian international TV news channels will be invaluable.

So forget about New Delhi’s offer and Islamabad’s response. Think about the enormous human tragedy that is unfolding across our north-western borders. Then think of the political consequences, not least the real risk that the disaster will end up strengthening the bad guys. Think also of the hapless people in Balochistan, where the Pakistani government has banned international relief agencies from operating. You might find some factors more important than others, depending on your personal values, beliefs and hopes. Then do what you think is appropriate.