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Sunday, April 17, 2011

The Battle against Corruption - Part II

This is the second part of the article: The Battle against Corruption.
But first let me make my position absolutely clear. I am wholeheartedly in favour of this movement that Anna Hazare jee has launched. As the right person to lead this movement, he brings up the third element in the triad - the man, the moment and the milieu.  But we are aware of another movement dissipate itself without achieving most of its objectives, and many stringent remedial legislations have proved worse than the disease.  This, as well as the other parts that will follow,will elucidate what was contained as brief remarks in the introductory piece. It would be impertinent of me to offer suggestions where the best minds of the country are at work but in the last installment I do intend to offer some practical suggestions.

How does one view the present movement against corruption?  As a symptom of a deep systemic crisis?  As a diffuse longing, on a societal scale, for redemption from our current problems by a mythical messianic character?  As a supreme example of the laziness and evasion of individual responsibility?  As the ultimate triumph of what Umberto Eco calls “Event as Mise en scene and Life as Scene - settings?  Is it a populist movement or a highly elitist one, run by a collectivism?  Or is it a little of both - a movement which feeds at the populist spring but is deeply elitist in its aspirations.  In this post, and the others that will follow, I will try to come to grips with my own confused and muddled thinking on these issues.

Seeking an analogy from the field of philosophy of science, it can be said that any system is designed to cope with all manners of situations that arise on a daily basis.  But there comes a time when the system finds it difficult to cope with arising challenges.  No matter how you tweak it, the problem remains insoluble.  This is the sign that we are now colliding against the boundaries; signal to make a paradigm shift, to abandon the theory and adopt a new and more capacious hypothesis.  Our political crisis in wake of pervasive and ubiquitous corruption in public life is more or less headed for this trajectory.

Democratic traditions are not native to our culture - I know Vaishali and Licchavi etc would be flung in my face.  It is not rooted in history or tradition.  Nevertheless, democracy did not evolve here by a process of trial and error, experiments and conventions as it did in Britain.  We have not grown with democracy; there is no evidence of sustained engagement of our society and democratic institutions.  We are not citizens by a natural process of  political evolution.  Ours – We the People of India – was a conscious and deliberate act of choice to be governed by an agreed set of political institutions.  Our national identification was with the constitution itself and it sought to generalize, diffuse and sublimate what was once held as an obligation to God and other narrow and sectarian loyalties that divide us, into an obligation to our secular republic.  The covenant between the Citizen and the Nation was direct; unmediated by the facts of religion, caste, creed or gender and it was expected that, in the conduct of the public affairs, the nation must survive as the principal object of affection and despair, and no new allegiance must be formed to replace it.  It is a debatable statement to make, but it does not detract from its validity to say that Indian nationalism was a concept which was alien to many of us, and inadequately developed at best.  The Indian constitution is what provides us our self definition.

The Lokpal bill is a tacit suggestion that we are now colliding against the boundary, that the potential of the system has been exhausted and we are approaching the conditions of political entropy.  Perhaps it is a time to make a move on, and the Lokpal Bill is the answer.  The Lokpal Bill is daring in its conception and there are no precedents to it.  But one may like to know why  have the legislations designed to cope with corruption in the public sphere have been found to be inadequate.

In my humble opinion, it is not the inadequacy of the legislation; the problem has been the lack of uniform application because, faced with the mighty economic offender, those charged to apply it develop cold feet, distort it or simply play truant.  To quote just one pithy example:  During the course of the investigation of an offence, the arrest of the local chief minister became necessary but the State Police could not be relied upon to affect it.  As a result, the Army had to be summoned by the High Court, leading to unavoidable controversy?  All because the then DGP could not be trusted to get the warrant of arrest executed.  Institutions have to be vested with authority and it is for the powerful who consecrate it and uphold its writ, whatever the consequence.  Stories abound in the Indian tradition where Gods have voluntarily surrendered to the power of supposedly invincible weapons.

While intellectuals and political pundits may debate the abstract questions   of political theory, I shall limit myself to my own area of experience. It will bear reiteration that nothing on as grand a scale as the Lokpal Bill has ever been attempted before but   let us consider some issues   on the diminutive scale. The   Prevention of Corruption Act 1988 was supposed to be a revolutionary improvement on the PC Act 1947; the definition of public servant was made so capacious as to include almost every one – persons associated with co operative bodies, universities, educational, scientific, cultural educational institutions receiving public funds, UPSC state PSCs banks, MLAs, MPs., whoever was being paid out of or handling public funds. The mere possession of assets disproportionate to known sources   was an offence, without any need to establish a specific act of bribery or corruption. The explanation added to the new section 13 (1) e requires only that income which has been declared according to the prescribed rules etc to qualify as known sources of income.   Income derived legally but undeclared, undervalued income, assets acquired but without prior permission or subsequent intimation became outlawed. It was considered   revolutionary in its scope, reach and ambit, the authentic thunderbolt of gods. Twenty three years down the line it is just another provision, which neither deters nor is as widely used as it should have been, given that amassing   of disproportionate asset by public servants is a rule rather than exception.

Now we have just about everybody declaring his property but not one has been challenged  in the absence of an adequate vigilance machinery.  The idea behind the move may have been that if only the ill-gotten worth of the corrupt were known, it would prove a detterent?  If citizens know that one of their favourite leaders, who was worth 10 lacs in 2004, is worth 500 crores today, or a public figure who is believed to have taken a few thousand crores in one deal is only worth a few crores, does that make the masses pour out into the streets?  Nobody to my knowledge has been prosecuted on the basis of these disclosures.  Does not it mean, then, that each one of us public servants is living within one’s means?  The task of bringing disproportionate wealth to light has been democratized and it is the duty of every citizen to scan the property of the public servant and discover undeclared wealth and unmask him.  This has not been done either.  Are we a less corrupt society merely because a more draconian law has been put in place?   In the absence of wide ranging popular support    merely criminalizing  a conduct or prescribing more deterrent punishment can not  ensure socially useful behaviour.

Another spectacular example would be the Dowry Act, legislated under tremendous media coverage of dowry deaths and activism by pressure groups.  This was a time when dowry was jogging the conscience like nothing else.  It was the number one social evil; therefore, the full might of law - civil, criminal and special legislative acts - was deployed against it.  The act casts the burden of proof on to the accused.   It can be confidently said that the society did not change its mind about the giving and taking of dowry because of the multiplicity of legal remedies, but to our misplaced reformist zeal we owe the incarceration of innumerable innocent old and decrepit men and women, landing up in jail.  The Dowry Act - dowry was as much of a social evil in the eyes of the community as corruption is today - is the most misused act in the history of Indian jurisprudence.  Incidentally, this is the only crime in which the police can claim bribe not only with impunity but with honour - to arrest those who stand even falsely accused at the behest of the complainant.  The new leniency in granting anticipatory bail in many courts is a judicial recognition of this fact.  What is being emphasized is that, try as we might, we cannot run a society by decrees alone.  The excess can only inure us against the evil, even inculcate a sense of fatalism.

I would like to draw upon my experience - banal and exercised in unspectacular setting, in comparison to the grandness of the theme envisaged in the Lokpal Bill, to reinforce this point.  I had been directed by the Hon'ble Patna High Court to investigate a case of academic fraud, which the the normal hierarchy of police was not able to undertake, maybe, because the accused persons were powerful persons.  The investigation led us to the academic underworld, and several Vice-Chancellors, a retired High Court judge, an IPS officer and others were arraigned.  Encouraged by the investigation, the Hon’ble High Court directed me to broad-base the investigation.  Having gained a valuable insight, we proceeded confidently but we hit a tunnel at the end of the light.  What we came up against was not an evidence of random deviant behaviour, but academic irregularity and illegality on an insurrectionary scale.  And you certainly cannot deal with an insurrection with normal laws.  “Should we go about registering cases in their hundreds”, my report to the High Court wondered “maybe in their hundreds of thousands, considering that other universities are waiting to reveal their priceless quota of well known secrets.  Such an enterprise would nullify the very concept of investigation and fair trial because the sheer volume of work which no agency, however diligent can perform.” Then, “there is another problem - and it is no moral quibbling; it is a purely juridical issue.  In what order shall the potential delinquents be called to account … given the various limitations of human resources…  those involved in matters taken up first are likely to be disadvantaged compared to those who are taken up later” etc.  To the best of my knowledge, the matter is still pending and, on a regular basis, crimes with the same modus operandi are revealed and investigated, and the high hopes, fuelled by media hype, of a clean-up of the campuses has gone sour.  Nobody in Bihar, I think, takes the issues of academic fraud seriously, now.

This brings me to my next worry.  The leadership of the movement is in very competent hands - as of now.  Any one of them can do full justice to the office of Lokpal.  But while one legislates and brings into being such agencies, omnipotent in their sway, one has to ask God or Nature - take your pick - to keep us supplied on a regular basis  with such emnent figures.  The matter does not end there.  For the Lokpal to be effective and credible, it has to have an apparatus of investigation commensurate to the task.  But what if nature defaults or God fails to execute the orders on time?  What if we are saddled with another Thomas?  The experience with many of the occupants of high constitutional posts appears to have validated the Peter Principle – sooner or later we will arrive at the Thomas level.  Thomas on a puny symbolic scale was a parlour farce; Thomas on a grand scale would be a national catastrophe.  
My worry is that the grander the ambition, the more spectacular the failures, leading to massive withdrawal symptoms.  In a democracy, critical debate is of the essence.  In this case, that opportunity has been lost, because Television arrived here before everyone else did, banishing  good sense and rational debate.  Therefore, the issue must be put to much wider consultation, more extensive debate, keeping in mind the history of earlier initiatives and the fears expressed in many quarters. We must not be afraid of failure, but at the same time, we must not be oblivious of the grave consequences of failure.