Less than 12 hours registered the first victory of the movement of the civil society led by Anna Hazare over corruption. The government of India , who were hesitant to introduce an effective legislation to appoint a national Ombudsman to deal with corruption cases against all manner of authorities, but were determined to kill the movement by unconstitutional police action, suffered their biggest loss of face by arresting Anna Hazare. It generated such public indignation that not only the government but the entire political class was shaken out of their stupor.
Corruption in India has ruined the rule of law totally, replacing it by rule of the corrupt people. It will be clear from the public response when thousands of elderly, young and children came to the streets all over India the moment Anna’s arrest was announced by television channels. The force of public fury was so ferocious that the government offered to release Anna within less than 12 hours on their own. Anna, a true Gandhian, refused to give any application for bail or furnish any personal bond. The government suffered its biggest embarrassment when it offered to release him but Anna asked for written permission to continue his fast without unlawful conditions. It is more than 24 hours and the government does not know what to do with him, as he is not prepared to leave the jail premises without the written permission he is seeking!
This was an example of the worst handling of a movement by the government. It is because of its leaders having no competencies of political judgement or statesmanlike response to such situations. They lost valuable opportunities in legal ramblings, but public movements are not confined to the legalities of obscure and irrelevant laws. The Prime Minister and his ministers have no idea of the sufferings of the people because of the all pervasive corruption. For them it is only a matter of election time slogans. They also indulged in the royalty of comparing their corruption with the corruption of the opposition benches! Their spokespersons descended to the level of street urchins’ language in condemning Anna Hazare, his team and the Civil society. This misbehavior collectively angered the people as a society against the government.
Even school children participated and boldly courted arrest. This was happening for the first time in more than 40 year! Why were the children so angry? Because they are the victims of corruption, starting from school admissions to employment or parental harassment in matters of career promotions or transfers, causing mental tension in the family and disruption of normal life ,unless bribes are paid or influence is peddled. This has angered millions of children, who were determined to fight corruption whenever they got the opportunity. Anna’s movement against corruption provided exactly that impetus .
The corrupt class of politicians, ministers, bureaucrats and businesses is frightened. The sense of political opinion in the parliament and outside has been merely obfuscating. Questions are being asked—who has the power to make laws, Parliament or non elected members of the society? The parliament is supreme and hence it alone can make laws. Who said otherwise? The civil society gave to the government a draft of a Lok Pal Bill, which could be used for framing appropriate legislation. Anything wrong with that? If the government drafts the Bill incorporating the aspirations of the Indian society, it meets the purpose. But the government dilutes it to ridiculous levels, which will strengthen the forces of corruption and promote more corruption.
The politics of pitting the parliament against the people needs to be exposed. First, the doctrine of supremacy (as also independence and sovereignty) is not absolute as the divine right of kingship. The fiction of supremacy carries with it limitations.
There is none other than “we the people of India”, who are real sovereigns and are supreme. All others are subordinate to the people of India, including the parliament. The members are elected for a defined term of 5 years only, whereas the people are perennial. The people elect the members to do something agreed during electioneering. The people can also ask the parliament to do or not to do something more. There are various ways to do so, agitations, protests, movements, campaigns being some of them. It is only when the elected members lose touch with the citizens that situations of protests arise. Why the people will undergo the sufferings of launching an agitation? They have better things to do. But when the government turns insensitive to issues like corruption, price rise, inflation, adulteration or the parliamentarians ignore the public, the people use their power of making them do their bidding.
The members raising the issue of supremacy of parliament to pass the legislation or the executive to draft , forget conveniently another Body, extra-constitutional Body for that matter, which drafts bills for the government. The rightful duty of drafting legislation is that of the Ministry of Law (Legislative Department) or the concerned administrative ministry, in consultation with the law ministry. But the NAC (National Advisory Council), is a Body outside the constitution of India and funded by the government of India, though without answering parliament questions or placing any Annual Report before the parliament , as is the case with all ministries. This NAC, in its meeting held on 22nd June 2011, finalized the National Food Safety Bill. No member of parliament has questioned the right of the NAC to draft a Bill. Why is the government spending millions of rupees for getting the Bill drafted by the NAC when the Legislative Department is there? Why such duplication of effort? Why such wasteful expenditure? Is it to create work for the huge secretariat of the NAC and provide employment to the persons not coming under the anti-corruption laws of the country? Those questioning the right of the civil society for drafting the Lok Pal Bill must answer whether a draft prepared without a single dime being spent by the treasury is a better option or the one prepared by the NAC at a cost of several hundred millions?
There is another reason why the civil society must keep a watch over their representatives. The same parliament had violated the constitution by passing the 39th Constitution Amendment Act in 1975 ‘ putting a bar on the courts to interfere in the election of the Prime Minister and the Speaker. This was a piece of “coloured” legislation after the election of Indira Gandhi was nullified by the Allahabad High Court in June 1975. Supreme does not bestow the parliament with powers for “colourable exercise of authority. Public demand for resignation of the PM , of which Jai Prakash Narayan was one of the leaders, was met with the imposition of the dark Emergency , suspending citizens’ rights to even life, liberty and property. The 39th Amendment Act changed the “basic structure of the constitution of India” and brought “democracy to a grinding halt”. It was abuse of the parliament’s “supreme” power to legislate. It had to be repealed when Emergency ended and rule of law restored .The 44th Constitution Amendment Act , 1978 repealed it with effect from 26.06.1979.
The votaries of the supremacy of the parliament will need to keep it in mind. There might arise occasions in the future when the ruling party may pass laws not in public interest but only in private interest of one or two individuals like in the case of the 39th Amendment Act and the people may have to start similar protests. The limitations might not be laid down in specifics, but they exist. The doctrine of balance of powers highlights such limitations only. Legal fiction has it that the judiciary is “independent”. But there are limitations on this independence if it is misused. Similarly, sovereignty is not absolute. If it is working against the civilians, the international law moves in to restore order. So the Members of parliament would serve the country better by listening to the civil society in a statesmanlike manner rather than wasting time in debating who is supreme or superior or sovereign and who is not.
The government is duty bound to root out corruption. Instead it has resorted to actively indulge in corruption of even bribing members of parliament to win the vote of confidence. Ministers, chief ministers, members of parliament and legislatures, officers and lower ranks have been booked for corruption and punished. As the 39 th Amendment suggests, even the Prime Minister may not be above board. Hence there should be no objection to bring all functionaries of all the organs of the state under the remit of the Lok Pal or Ombudsman. Confrontation with the people on the issue of corruption is ill advised, unproductive and damaging to the image of the government.
Hence Anna Hazare should be set at liberty respectfully and allowed to carry on with his fast. After some time things are bound to cool down if the government takes up the legislation in right earnest in all sincerity, making provisions to meet the well considered suggestions of the civil society as presented in the Jan Lok Pal Bill of Anna Hazare and his team.