Archive for June, 2011

Conflict conundrum

Posted on June 24, 2011. Filed under: Elections, Politics |

Conflict conundrum

Jagdeep S Chhokar

June 24, 2011

The Hindustan Times

 

‘Consultant’, like ‘professional’, is an often used – and abused – word. Having functioned as a consultant in the area of organisation and management, I am conscious of the dilemma a consultant of the old school faces: should I make the client self-reliant thus working myself out of a job? Or should I do just enough to ensure a steady income? This is a classic conflict of interest situation. But does it work at the national level?

The society and polity in India are at crossroads today. Corruption has permeated the innards of society and the value system. Almost no one in the country seems unaffected by it. Penetration of such phenomena to this extent doesn’t happen without acquiescence and active abetment by significant portions of society. Who has been responsible for it in India is less relevant than what – if anything – can be done about it. That brings us to the national conflict of interest.

Two recent phenomena illustrate this. The first is the current flavour of the month, the lokpal; the second is a perennial favourite, State funding of elections. Under our Constitution, both these need to be voted on in Parliament.

Holding the Parliament in the highest possible esteem and with no intention to compromise its dignity as the highest democratic institution in the country, one has to admit that its performance, or of the honourable members who comprise it, has not really covered it in glory of late. Without casting any aspersion on the institution as a whole, one can’t wish away the fact that almost 30% (162 of 543) members have criminal cases pending against them in which charges have been framed by the court of law and the punishment for which is two or more years of imprisonment. This number has increased from 156 in the 2004 Lok Sabha.

With the number of crorepatis in the Lok Sabha having increased from 128 to 315 from 2004 to 2009, when almost half of India’s population lives on s Rs 20 or less per day, and with almost 78% members of the 2009 Lok Sabha having had more votes cast against them than for them, what can be said about the ‘representativeness’ of the elected representatives? But what does this have to do with the conflict of interest?

Lots actually. It is these honourable members who will vote on whether there should be a lokpal or not, and if there should be one, what its powers should be. How would anyone vote if the choice is between (a) ensuring that one’s party continues to function in a way so that the chances of it remaining in power or acquiring power are maximised, and (b) taking a leap into the unknown where one doesn’t know what might happen? And can the honourable members be blamed for voting to ensure their, their progeny’s, and their party’s future well-being? The nation’s well-being is not considered to be an issue these days. This is the conflict of interest the current political and electoral system creates.

Now to the perennial favourite: State funding of elections. This paper reported on June 20 that in a draft Cabinet note, the law ministry has proposed State funding for women and schedules castes (SC) and scheduled tribes (ST) candidates.

The saga of State funding is similar to the lokpal but in the opposite direction. While the political establishment has successfully thwarted the lokpal for 42 years, it has been chasing State funding of elections for 38 years since 1972. Despite all kinds of recommendations, the spectre of financial transparency as a prerequisite somehow gets raised and enthusiasm for State funding wanes. The Cabinet note this time has taken two precautions. Following the ‘thin end of the wedge’ principle, it proposes State funding only for women and SC/ST candidates, and makes it part of a ‘package’ deal, the other part being barring candidates with criminal cases pending against them.

How would anyone vote if there were a prospect of getting free money to contest elections now, or later, once the system becomes acceptable in the public eye with women and SC/ST candidates? It is obvious that our elected representatives face severe conflicts of interest.

Is there a way out? How do we deal with such national conflicts of interests? Can we deal with them, short of expecting our elected representatives to be utter paragons of virtue, completely devoid of self-interest? Two ways seem possible.

Gopalkrishna Gandhi suggested the first on this page (A spectacular story, Incidentally, June 18) – a meeting held at Sevagram in March 1948 “between those who had entered public life through the portal of elections and those who were doing ‘constructive work’.” He concluded with two questions: “Is it impossible for a Sevagram 1948-type meeting to be convened by the equivalents of those who organised that meeting to discuss corruption? Is it inconceivable that they can be inspired to gather for a meeting chaired by the Congress president, inaugurated by the PM and addressed by representatives of the ‘unelected’ to discuss corruption?”

Sadly, saying an unqualified ‘no’ to these questions seems unrealistic. Other questions arise. Should such a meeting be chaired by the president of only one party? All the parties in power? At the Centre or in the states? Should this meeting be preceded by an all-party meeting? The past record of all-party meetings on issues of national interest is not very encouraging. There are no easy answers. But then, we should not expect easy answers to highly complex questions.

If the existing dispensation is unable to answer the questions adequately, do we go beyond the existing dispensation? That is what leads us to the other option. Should we – can we – seek the opinion of ‘We, the People’, going beyond, not above, our elected representatives? The dreaded word is ‘referendum’, which our Constitution does not provide for, so far. This, then, is the national dilemma. And the conflict of interest.

Jagdeep S Chhokar is former Dean, Indian Institute of Management, Ahmedabad.

The views expressed by the author are personal.

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State should not fund elections

Posted on June 4, 2011. Filed under: Elections, Politics |

State should not fund elections
Jagdeep S Chhokar
GovernanceNow | June 1-15, 2011

We are living in interesting
times. “Increasing
cost of elections” is
a problem for everyone
except those who
incur that expenditure (the candidates
and their sponsoring political parties),
as Governance Now reported in the last
issue; and “state funding of elections” is
a solution that no one seems to want except
the candidates and their sponsoring
political parties! The urge for state
funding seems to be so strong that no less
than the law minister wrote an article in
one of the leading English dailies a couple
of months ago making a case for it.

As is usual in such attempts, the justification
for state funding of elections began
with references to the Dinesh Goswami
Committee (1990) and the Indrajit
Gupta Committee (1998), with both reported
to have recommended providing
state funding to candidates of recognised
political parties. A paragraph of the Indrajit
Gupta Committee report that politicians
love to quote says, “The committee
see full justification constitutional, legal
as well as on ground of public interest,
for grant of state subvention to political
parties, so as to establish such conditions
where even the parties with modest
financial resources may be able to compete
with those who have superior financial
resources.” This rightly gives the
impression of the well-endowed political
parties being in sympathy with their lessendowed
brethren.

What our friends seem to overlook with
unfailing regularity is the opening paragraph
of the “conclusion” of the same
report that says, “Before concluding, the
committee cannot help expressing its
considered view that its recommendations
being limited in nature and confined to
only one of the aspects of the electoral
reforms may bring about only some cosmetic
changes in the electoral sphere.
What is needed, however, is an immediate
overhauling of the electoral process
whereby elections are freed from evil
influence of all vitiating factors, particularly,
criminalisation of politics. It goes
without saying that money power and
muscle power go together to vitiate the
electoral process and it is their combined
effect which is sullying the purity of electoral
contests and effecting free and fair
elections. Meaningful electoral reforms
in other spheres of electoral activity are
also urgently needed” (emphasis added).
A more succinct description of what
needs to be done is difficult to find which
should not be surprising since in addition
to being chaired by the redoubtable
Indrajit Gupta, the committee had members
such as Somnath Chatterjee and
Manmohan Singh.

But the report has not found favour
with the larger political establishment
except for being quoted selectively.

Around the same time that the Indrajit
Gupta Committee was deliberating, the
Law Commission of India had suo motu
undertaken a thorough review of the
Representation of the People Act, 1951.
The stated “underlying objective was to
make the electoral process more fair,
transparent and equitable. The effort
was also to reduce the several distortions
and evils that had crept into the Indian
electoral system, to identify the areas
where the legal provisions required
strengthening and improvement and to
suggest the requisite measures in that
behalf”. The result of this review was
the 170th report of the Law Commission
of India titled “Reform of the Electoral
Laws” which is the most comprehensive
document on the subject in the country.
It was submitted to the then law minister
in June 1999.

One full part (Part IV) of the 208-page
people politics policy performance
report is devoted to “Control of Election
Expenses” which contains an 11-page
chapter on “State Funding”. The entire
chapter should be read to get a proper
understanding of the complexity of
state funding. The concluding paragraph
(4.3.4) is reproduced below.

“Conclusions – After considering views
expressed by the participants in the seminars
and by various persons and organisations
in their responses and after perusing
relevant literature on the subject,
the Law Commission is of the opinion
that in the present circumstances only
partial state funding could be contemplated
more as a first step towards total
state funding but it is absolutely essential
that before the idea of state funding
(whether partial or total) is resorted to,
the provisions suggested in this report relating
to political parties (including the
provisions ensuring internal democracy,
internal structures) and maintenance of
accounts, their auditing and submission
to Election Commission are implemented.
In other words, the implementation of
the provisions recommended in Chapter
one Part three should be pre-condition
to the implementation of the provisions
relating to partial state funding
set out in the working paper in the Law
Commission (partial funding, as already
stated, has also been recommended by
the Indrajit Gupta Committee). If without
such pre-conditions, state funding, even if
partial is resorted to, it would not serve
the purpose underlying the idea of state
funding. The idea of state funding is to
eliminate the influence of money power
and also to eliminate corporate funding,
black money support and raising of
funds in the name of elections by the parties
and their leaders. The state funding,
without the aforesaid pre-conditions,
would merely become another source of
funds for the political parties and candidates
at the cost of public exchequer. We
are, therefore, of the opinion that the
proposals relating to state funding
contained in the Indrajit Gupta Committee
Report should be implemented
only after or simultaneously with the
implementation of the provisions contained
in this Report relating to political
parties, viz., deletion of Explanation
1 to section 77, maintenance of accounts
and their submission etc. and the provisions
governing the functioning of political
parties contained in chapters I and II
of Part IV and Chapter I of Part III. The
state funding, even if partial, should
never be resorted to unless the other
provisions mentioned aforesaid are
implemented lest the very idea may
prove counter-productive and may defeat
the every object underlying the
idea of state funding of elections.”
(emphasis added).

Sadly, these recommendations of the
Law Commission have not been heeded
and demand for state funding continues
to be raised from time to time with absolutely
no mention of or regard to the
“pre-conditions” specified as necessary.

The Law Commission is not the only one
to lay down “pre-conditions”. The National
Commission to Review the Working
of the Constitution, 2001, said effectively
the same thing albeit using different
terminology. It said, “Any system of state
funding of elections bears a close nexus
to the regulation of working of political
parties by law and to the creation of a
foolproof mechanism under law with a
view to implementing the financial limits
strictly. Therefore, proposal for state
funding should be deferred till these
regulator mechanisms are firmly in
position” (emphasis added) (Para 4.14.5).

It is sometimes claimed that the Second
Administrative Reforms Commission
(ARC) has recommended state funding.
The “recommendation” of the ARC, in
para 2.1.3.1.6 of its fourth report, “Ethics
in Governance” (2007), says, “a system
for partial state funding should be
introduced to reduce the scope of illegitimate
and unnecessary funding of expenditure
for elections.” Once again, this
paragraph is quoted in isolation. Reading
the preceding paragraph (2.1.3.1.5)
is instructive. It says, “In order to eradicate
the major source of political corruption,
there is a compelling case for state
funding of elections. As recommended
by the Indrajit Gupta Committee on State
Funding of Elections, the funding should
be partial state funding mainly in kind
for certain essential items.” It is clear
that the “recommendation” of the ARC
is within the ambit of the Indrajit Gupta
committee report, and has to be read in
the context of the opening paragraph of
the “conclusion” of the Indrajit Gupta
Committee report mentioned above.

The view of the Election Commission of
India is clear from the interview of the
chief election commissioner in the last issue
of GovernanceNow.

Despite all that is mentioned above that
includes views and recommendations of
government and political committees, it
is nothing short of amazing that the demand
for state funding of elections keeps
coming up with startling regularity. That
state funding is no solution to any problem
has been clear for a long time, and
as the chief election commissioner has
said in the last issue, it “will not stop illegal
expenses. In fact, more money will be
available to the candidates” and is, therefore,
“dangerous”.

Let us, therefore, hope that we will not
rush into the biggest scam by throwing
thousands of crores of good public money
after bad money under the garb of
state funding.
Chhokar, a former dean of IIM, Ahmedabad,
is a founder of Association for Democratic
Reforms and National Election Watch.
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Who is afraid of Lokpal Bill?

Posted on June 3, 2011. Filed under: Politics |

 Who’s afraid of the Lokpal Bill?

Hindustan Times, June 02, 2011

Jagdeep S. Chhokar

The proposed Jan Lokpal Bill has evoked strong reactions, a number of them emotionally charged. One is struck by the conflicting claims and counter-claims in the media. While it’s hard to determine the truth in such matters, a summary of some of the misgivings and the possible intentions, with an assessment of what possibly is the reality, follows:

The Lokpal is being dubbed as a Leviathan

Fear: Being a much too powerful agency, it is being projected to be a threat to democracy. It is being said that it should not have powers of search, summons, phone tapping, contempt of court, etc.

Reality: The existing law enforcement and investigative agencies such as the Enforcement Directorate, the Central Bureau of Investigation and the Income Tax Department enjoy all these powers. No new powers have been suggested for the Lokpal. But the corrupt will be all too happy with a weak Lokpal. So the Lokpal must be strong but with adequate checks and balances.

Is the jurisdiction of the Lokpal too large?

Fear: The jurisdiction of the Lokpal proposed in the bill is vast. It should be curtailed to only politicians.

Reality: The nexus between the political executive and the bureaucracy is well known. No politician can indulge in corrupt acts without active connivance of bureaucrats and vice versa. Trying to curb corrupt acts of only one kind of actors is ineffective and inefficient. This model has been in existence in several states for lokayuktas and has completely failed. Almost no corruption starts at the level of a politician. It normally starts with a bureaucrat who writes something on the file, maybe under pressure. The politician’s role becomes visible after many levels. This is why almost no case reaches the lokayuktas. The Delhi Lokayukta has jurisdiction only over politicians. Justice Mohammad Shamim, former Delhi Lokayukta, had complained that though the government spent almost R1.25 crore on his institution annually, he received less than five actionable complaints every year. The Karnataka Lokayukta, with jurisdiction over both politicians and bureaucrats, works very well. The annual conference of all lokayuktas has been consistently demanding that this fractured mandate given to them covering only politicians was serving the interests of only the corrupt and should be expanded to cover bureaucrats, thus replicating the Karnataka model in every state.

Should the Lokpal deal with judicial corruption?

Fear: This will endanger independence of the judiciary.

Reality: Under the present system, one has to obtain permission from the Chief Justice of India to file a first information report (FIR) against any judge. In the last 20 years, such permission was granted in just one case despite innumerable cases of blatant corruption by judges exposed in the public domain. This system has encouraged corruption in the judiciary. The Jan Lokpal Bill only provides that a seven-member bench of Lokpal should grant such permission in open hearings. The present system, which protects corrupt judges, is seriously compromising the independence of the judiciary.

There are no mechanisms to deal with corruption within the institution of Lokpal.

Fear: What’s the guarantee the Lokpal won’t turn corrupt?

Reality: Some of the proposals to check corruption within the Lokpal include the annual financial and performance audit of the Lokpal by the comptroller and auditor general of India, the annual appraisal of the Lokpal by the relevant parliamentary committee, the setting up of complaints authorities in each state that also involve people from civil society, open hearings by the complaints authority, internal transparency in the functioning of the Lokpal, regular social audits of various levels of the Lokpal, complaints against members of the Lokpal to be made directly to the Supreme Court. More checks and balances can and need to be thought of.

The Lokpal will suffer in no time from overload

Fear: Given the widespread prevalence of corruption in the country, the Lokpal will be swamped with and paralysed by the sheer number of complaints. It should, therefore, deal with corruption only at higher levels.

Reality: Members and the chairperson of the Lokpal are not envisaged as a set of investigators who would be able to handle only a limited number of cases. What possibly is intended is an anti-corruption system capable of enforcing the Prevention of Corruption Act. Lokpal members will not directly deal with any case. There will be a set-up under them that will deal with the cases. They may have a certain number of special investigative units directly under their control to deal with high profile cases. But the rest of the machinery will receive and investigate smaller cases.

After developing cold feet and agreeing to demands that were fundamentally unpalatable to them, the politician-bureaucrat-business nexus has regrouped and has been looking to discredit the entire anti-corruption effort. This was first attempted by some crude allegations aimed at what were considered to be vulnerable individuals. When that did not get much traction, seemingly ideological opposition was raked up. Two major principles in use seem to be ‘divide and rule’ and ‘delay is the most effective form of denial’.

The Jan Lokpal Bill, if it comes into force, will not eradicate corruption or its root causes from society. Only large-scale social change impacting basic values of society can do that. The Jan Lokpal can only put obstacles in the path of — and fear of the law into the minds of — the potentially corrupt. It is not a panacea for all of India’s social ills. Nothing can be. But it certainly is a good and necessary step in a long journey.

(Jagdeep S Chhokar is a former professor, dean and director in-charge of the Indian Institute of Management, Ahmedabad. The views expressed by the author are personal)

http://www.hindustantimes.com/StoryPage/Print/704601.aspx © Copyright 2010 Hindustan Times

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