This op-ed needs to be read in conjunction with this podcast, this detailed proposal and the below brief remarks in response current sentiment towards half baked electoral fixes like Right to Recall and Right to Reject.
First brief remarks on comments yesterday from Anna Hazare’s campaign
While the Right to Recall is more compatible with direct democracy and generally makes sense at the Local Government level the Right to Recall at the Legislative level (state assembly and parliament) however can have the very expensive effect of frequent elections as well as fostering a vicious cycle of partisanship where candidates and parties are constantly trying to undo each other’s elections. The Right to Reject is incompatible with the current First past the Post electoral system. Beyond conveying a negative sentiment, the Right to Reject does little to ensure acceptable candidates make it to ballot. Instead of exploring such an “after the fact” solution, the right way to address the problem of bad candidates is to force Major Political Parties to conduct Primaries so good candidates make it to the ballot. Both the Right to Recall and Right to Reject are perhaps more suited for Local Government at the Panchayat and Municipal level where direct democracy can be feasible and perhaps even desirable. Gujarat Chief Minister Narendra Modi’s proposals focused on local elections thus make sense.
Op-Ed in The Pioneer (29th August 2011)
With mounting popular anger over corruption, various draft proposals for an effective and strong Lokpal Bill have surfaced. Each proposal fails to address the fundamental question of accountability. The final draft of the Lokpal Bill should take a holistic view of structural, constitutional and systemic reforms while ensuring justice is delivered. Here are some suggestions towards that end
There are now at least four draft proposals for what everyone fashions to be a strong and effective Lokpal. They all miss the point that no reform against corruption can derive strength from good intentions or ‘independence’ without clear accountability. Hence the Lokpal debate cannot be about a single agency, office or officer. Instead it has to be about a system of Government and a culture of governance rooted in the principle of accountability.
A strong and effective Lokpal Bill has to be one that takes a holistic view of structural reforms to the Constitution and systemic reforms to how laws are enforced and justice delivered. Unfortunately, all of the proposals in circulation only tinker with the idea of adding a new layer of bureaucracy without cleaning up the underlying mess.
The current political crisis in Indonesia is a stark pointer to the inadequacy of all of these proposals. In an interview to the Jakarta Globe on August 25, the chairman of Indonesia’s Corruption Eradication Committee admitted that fighting corruption was complex and the need of the hour for Indonesia were systemic reforms and bureaucratic reforms. This late wisdom coming nine years after Indonesia’s version of a Lokpal came into place.
India doesn’t need to waste another decade to learn what we already know today. Here is an outline for a strong Lokpal Bill that would be consistent with the principles of Ambedkarite constitutionalism.
This Lokpal Bill should be respectful of constitutional division of powers between the executive, the legislature and the judiciary and federalism. It should strive to establish checks and balances while recognising the elected people’s representatives as the only representatives of the people’s will. The Lokpal Bill may be a guiding template to States, but it should be left to each individual State to come up with its own legislation where appropriate. The Lokpal Bill must not impinge on States’ rights to make their own laws.
Objectives of the Lokpal Bill
The goal of the Lokpal Bill should not be to create a new expansive agency but to make existing agencies efficient and accountable. Hence the Lokpal Bill should strive to provide crystal clarity on what role existing agencies shall play and how they will be independent and accountable in dealing with situations where individuals acting on behalf of the Union Government, Parliament or judiciary must be investigated and prosecuted.
The Lokpal Bill must also not define new crimes nor define new kinds of punishments but must strive to remove ambiguity and ensure consistency in existing definitions so the Union Government, Parliament and judiciary when convicted of wrong doing do not enjoy special provisions or exceptions. Lastly, the Lokpal Bill must ensure that there is continuous monitoring and feedback on the effectiveness of such investigations and prosecutions through the creation of a new limited agency. This agency should be limited to monitoring effectiveness and make recommendations to Parliament on any corrective legislative or executive action.
Finally, the Lokpal Bill must strive to create a culture of accountability to the people by requiring people’s representatives and judiciary to be fully accountable to Parliament for conflicts of interest and ethics violations with respect to matters inside Parliament and courts. It must also strive to ensure there is no immunity from criminal prosecution for acts committed outside Parliament or courts.
With these objectives the Lokpal should legislate on constitutional reforms to ensure a culture of accountability within governance and on justice delivery reforms to ensure a system of Government that is fair, unbiased and committed to justice delivery.
Constitutional Reforms
BR Ambedkar in his speech in the Constituent Assembly introducing the draft Constitution explained how the draft tried to achieve responsibility in our system of Government at the expense of stability. Clearly, six decades on we have failed on both fronts with minority Governments giving instability and apathetic Governments shirking responsibility. Hence the goal of the constitutional reforms has to be about making the Prime Minister accountable.
This can be achieved if we consider the idea of adding a single non-voting seat to every State Assembly and to the Lok Sabha. This single non-voting seat could have for its constituency all eligible voters within that State in the case of a State Assembly and similarly it could have all of the eligible voters in India in the case of the Lok Sabha. During elections this all-State or all-India constituency could go to polls along with the other legislative and parliamentary constituencies. The person who gets elected to this non-voting Lok Sabha or Assembly seat could be automatically considered to be the Leader of the House as he or she would be reflecting the collective will of all the voters of that Legislative Assembly or Parliament. Since the seat is a non-voting addition to the strength of the House this seat will not change the balance of power in the legislature which continues to be same as before.
By virtue of being the leader of the House the person elected to the all-State or all-India constituency will have to be invited by the Governor or the President to form the next Government as the Chief Minister or Prime Minister. Irrespective of whether a party or a combination of parties has a legislative majority the Chief Minister or Prime Minister will have a fixed term which will be the same as the term of the legislature. Removal of the Chief Minister of Prime Minister would now require a higher legislative bar similar to a Presidential impeachment. The anti-defection law becomes redundant and irrelevant since the Government no longer depends on a simple majority in the legislature.
In the absence of anti-defection laws, a cultural shift could be effected wherein legislators across party lines can think independently and come together to propose bi-partisan Bills in a manner similar to what we see in the United States. The Chief Minister or Prime Minister could then also have the additional freedom to appoint members to his Cabinet from outside the legislature thus eliminating another source of instability and dissidence.
The net effect of the above constitutional amendments would be that the legislature could solely focus on its twin responsibilities of law-making and executive oversight. The stability of Governments would no longer be impacted by how fractured or fragmented the legislature is. Overall we could move towards a culture where the executive is focussed on law enforcement and the legislature on law-making while both keep the judiciary out of either responsibility thus restoring the balance of power and separation of powers intended by the Constitution.
A culture of direct accountability of the executive can be restored as against the current disturbing trend by which Chief Ministers and Prime Ministers have taken an indirect route office without contesting elections.
Justice Delivery Reforms
We must also consider recasting the Home Ministry into a separate for justice delivery which shall be responsible for all investigations and prosecutions within the jurisdiction of the Union Government. The justice Minister should control three agencies for investigations, prosecutions and vigilance. The Central Bureau of Investigation should be recast as the sole Federal Investigation Agency with clear jurisdiction instead of the current ad-hoc manner of referring investigations to CBI. The NIA and the CBI should be merged. The investigation agency should not require special permission to investigate and prosecute Members of Parliament or judiciary for conduct outside Parliamentary or conduct outside court proceedings.
The Central Attorney’s Office shall be responsible for conducting prosecutions. The Central Vigilance Commissioner shall be responsible for whistleblower protection. The appointment of the heads to these three agencies should be subject to approval by Parliament. The heads of all three agencies should be subject to parliamentary oversight for their conduct. The Justice Ministry should also be responsible for a quasi-Government National Justice Commission that harnesses judicial and prosecutorial talent and promotes excellence in those areas. The mission of this commission is to monitor the needs across the nation and to help State and local Governments add capacity with right talent.
In addition, the Supreme Court should be recast as a purely constitutional court with the discretion to take up or reject appeals based on their constitutional merit. Its primary role would be limited to interpreting the Constitution and ruling merely on constitutionality of decisions of lower courts and constitutionality of actions of all agencies of the State. Four Regional Appellate Courts should be set up for all appeals of decisions in lower courts. Appointment of all judges to Supreme Court and Regional Appellate Courts shall be subject to parliamentary approval upon the recommendation of the Ministry of Justice.
The Supreme Court should comprise a limited number of judges (an odd number less than 10) who should be appointed for life. There should be strict entry criteria for Public Interest Litigation to be taken up by the Supreme Court based purely on constitutional merit. The Supreme Court should not have the power to assume any executive functions including but not limited to — investigations, prosecutions, law making and other executive actions.
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Filed under: Ambedkarite Constitutionalism, Anna Hazare, उत्तर प्रदेश २०१२, Baba Ramdev, Narendra Modi, Nitin Gadkari, UPA-II Critical Appraisal
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