October 23, 2011

Institutionalise the gains

Assuming that federal government in India will honestly implement all its commitments made to Anna Hazare, before he broke his twelve-day old fast on 27th August this year, there is no hesitation in saying that the gains he made for Indian democracy so far are historic, but they are still ad hoc. They need to be institutionalised by incorporating a right to initiative and referendum as constitutional rights of Indian citizens—at all levels of governance, national, regional and local. This should be his immediate priority.

Image: India Kangaroo

In the absence of this right, each time when there is an issue of national, regional or local importance some one might be forced to take to streets or take recourse to a public fast. If these fasts like the one by in Manipur fail, or are resorted to too often, it could lead to widespread public unrest. Then it might really be dangerous to Indian democracy. With a right to initiative in place, collectively a group of citizens could initiate a measure to achieve certain common good. After examining such a measure, the government of the day if necessary, by using referendum, can make it a part of the legal system.

It is not that Anna is not aware of institutionalised instrumentalities to enrich Indian democracy. After his demand for civil society’s participation in the drafting of the Jan Lokpal bill was conceded by the government, Anna made ‘Recall’ as his next cause for agitation; he also repeated it again after he broke his fast on 27 August by adding his demand for Right to Reject all candidates at the election. Has Anna thought of impracticability and undesirability of these two instrumentalities in Indian current conditions?

Recall is not workable in India taking into consideration of voter-size in a constituency, voters’ lack of familiarity with democratic practices and present quality of Indian voters. In some cases, it is likely to be misused by political rivals of an elected representative. As such, it has become almost a norm for an election to be challenged in courts on the grounds of violation of electoral laws.

Similarly, what happens if a majority of voters decide to reject the entire panel? Are we going to have a re-election in the constituency? Will the candidates rejected by a majority be debarred from contesting again? If so, will it stand the scrutiny of judicial interpretation? What happens if same candidates file the nominations again? Why one needs a right to reject or a recall? Are there any alternative available to achieve the same goal as of recall or reject? Let us assume that voters desire to reject a panel of candidates or recall an elected representative on the grounds of presumption or proven case of their incompetence, non-performance and corruption.

To a great extent, the desired results of having a near-perfect representative can be secured by following American institution of Primaries for voter participation in the selection of a candidate by political parties. Election of candidate at the constituency level by the party workers and or voters is better than the so called party high command ‘nominating’ or giving a ‘ticket’. Introduction of the unique practice of Primaries is a better option than the option of reject or recall to get rid of politicians of doubtful integrity.

Hence, we need a law to make political parties to provide for Primaries as an institution for voter participation in the selection of candidate. Even by this method there might not be a hundred percent guarantee that all candidates selected through Primaries would be fully married to serve their constituents. But if there is a rotten apple, despite exercising care in selection, he could be rejected in next electoral Primaries by the voters.

There is a larger issue in the development of strong institutional strength for a vibrant Indian democracy. The Congress Party spokesman, Manish Tiwari had described members of Anna Hazare team, as “unelected and unelectable.” He also had accused them of being capable of posing a “peril” to Indian democracy.  In this sense, within the Congress and to that matter in every other political party there are persons who exercise power over public opinion who are never elected or contest elections. Should therefore they be ignored in the party debates or public discourse?

Those who are elected, are they truly representatives of all public on all issues of public interest? Often those who are elected might get elected with as low as ten percent of popular votes! This happens because the greater the number of candidates in the first-past-the-post system, the lower the percentage of votes required to get elected. In this sense, “four or five”  persons of civil society have the backing of crores of thinking people in the country—though it is a support to the ideas advocated by them and not necessarily to the individuals personally.

Kapil Sibal, on the other hand, has a point when he argues in favour of making Jan Lokpal and Lokayuktas in states accountable by placing them within the ambit of the higher judiciary. These offices of ombudsman have to be accountable to higher judiciary in the country. Judiciary is a constitutional branch of the democratic system of the government and plays a role by itself in securing checks and balances within the government. Whenever executive and legislature have failed to perform the constitutional functions, it is the higher judiciary to which citizens have increasingly begun to approach. Even other independent constitutional authorities like chief election commissioner have also taken help of the judiciary in maintaining its own independence. Manish Tiwari, incidentally, cannot dismiss superior judicial appointees securing accountability of the Jan Lokpal on the ground they are “unelected and unelectable.”

The critical issue in every democratic system is: power holders have to be accountable while exercising the powers given to them under the constitution. The underlying political philosophy is well stated long back by Federalist paper No 51, which says: “…the great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department, the necessary constitutional means and personal motives to resist encroachment of the others….Ambition must be made to counteract ambition.” Hence, powers be concentrated neither in elected bodies nor in unelected, but let there be a healthy balance of powers between elected institutions and unelected persons of highest integrity exercising constant checks and balances.

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