Parliamentary Sovereignty or an Active Citizenry? V. Krishna Ananth
Guest post by V. KRISHNA ANANTH*
The political class, cutting across the spectrum, is now being haunted by a spectre. Anna Hazare has captured the imagination of a cross section of the people and his campaign is certainly gathering support. It remains to be seen if this support translates into a movement on the streets and more so against the state machinery that is threatening to pull all the stops. The people have shown such courage in the past. That is another matter.
Team Anna’s decision to go ahead with protests against the draft Lok Pal Bill, as approved by the Union cabinet, has spurred a debate. The proponents of the draft bill as well as sections in the political arena who claim to oppose the Government are united against another round of fast by Anna Hazare; they call it blackmail and an attempt to usurp Parliament’s power to legislate. They also claim that the principles of democracy shall not be sacrificed.
A number of them are on record that the draft proposals are subject to amendments and that the power to propose amendments and decide on them shall rest with the elected representatives of the people. It is another matter that the Prime Minister, who heads the cabinet, qualifies as a representative of the people only because membership of the Rajya Sabha is considered as good as being a member of the Lok Sabha to remain a minister under Article 75(5) of the Constitution. In any case, the fact is that Dr. Manmohan Singh has claimed, in an affidavit, that he is ordinarily a resident of Assam! We all know the truth but that too is besides the point.
The argument that the details and the contents of the Lokpal Bill must be left to Parliamentarians and that the people shall not insist upon having a say may appear to be one in defence of Parliamentary Democracy. But then, if we accept that democracy is not an abstraction but a concrete system that mankind has devised, it is possible to see an infirmity in the argument now peddled. In concrete terms, we the people of India must allow such of our representatives including K.Kanimozhi, A.Raja, Vilasrao Deshmukh, Dayanidhi Maran, Amar Singh and Suresh Kalmadi (only an illustrative list and not exhaustive) to decide the fate of a Bill that is intended to contain corruption that has become endemic in our polity!
Similarly, let us take the argument that the Bill as approved by the Cabinet will become an Act only as amended and passed by Parliament. It means that after Mr. Salman Khursheed introduces the Bill in this instance, every member of Parliament has the right to move amendments including such ones that the Prime Minister be brought under the ambit of the Lokpal, that the Lokpal shall have prosecutorial powers and that the CVC and the CBI be brought under the superintendence of the Lokpal. Any member of either of the Houses may also move an amendment that acts by MPs on the floor of the House shall be within the investigating powers of the Lokpal.
It is possible and even likely (a remote possibility though) that such amendments are moved by members from the opposition as it is. Then, in Parliamentary democracy, such amendments will only be defeated because the opposition parties do not have a majority in either of the Houses. In other words, such substantial changes in the draft bill are possible only in the event they are proposed by the ruling party (or combine in this instance). And that is indeed the demand from the people who have rallied behind Anna Hazare in the past few months.
It may also be argued that MPs from the ruling coalition may muster courage or turn conscientious and vote in favour of such amendments (presuming that the BJP or the Left parties or Mulayam Singh’s Samajwadi Party move one as such) and thus ensure that the will and the wish of the people are carried out. This, however, would lead to two consequences: The loss of a Government Bill establishing its minority status in the Lok Sabha and the consequence, in the moral sense, would be that the Government goes. One would assume that morality and ethics are relevant concerns for those in the ruling combine. The other possibility would be that the Government stays on and this will be a wonderful scenario because the nation would still have a Lokpal with teeth.
One should be naïve to imagine on these lines. For these are based on two presumptions. One that there will be a resurgence of conscience in the MPs. And the second one being that the ruling combine will refrain from issuing a whip to its MPs (and let them vote according to conscience) and the opposition parties will issue a one line whip to its MPs that they vote in favour of the amendments. Even if one can presume the opposition doing that (only a remote possibility), to expect such sanction from the Congress and its allies will be asking for too much. Recall that the Congress had issued a whip in the Lok Sabha to vote against an impeachment motion when Justice (Retd) V. Ramasamy was to be punished after corruption charges against him were confirmed by a committee.
The Government side also argues that some of the provisions of the draft bill suggested by Anna Hazare and his associates go against the Constitution. That is true. A provision that acts by MPs on the floor of the House shall be within the investigative powers of the Lokpal will go against Article 105 of the Constitution. Well. Article 105 was invoked for protection by such MPs as Feroze Gandhi, Jyotirmoy Bosu and Madhu Dandavate in the past. And so also N.C.Chatterjee. But they invoked the provision to expose acts of corruption and wrong doing by the high and the mighty. To hold that such acts as raising questions in either houses after taking gratification or voting on a confidence motion in exchange for currency wads and seek protection will only make those who used the protection in the past to strengthen democracy turn in their graves.
All that we need is a Constitutional amendment; one more to say so. A proviso be added to Article 105 that it will not apply in cases involving corrupt practices by members of either house or the state legislatures. Such an amendment will require support of two thirds of the members in each House.
In other words, an effective Lokpal will be possible only where the ruling coalition agrees to go for it. And introduces a Bill that contains such provisions. For this reason, it is not proper and reasonable to insist that Anna Hazare and the people of India, the majority who detest corruption, shall wait for the elected members of Parliament to do what they deem fit. That will be waiting for godot. It is not only proper but also necessary that the people agitate for what they want and against what they detest. Such agitations, as long as they are peaceful, strengthen democracy and induce a new meaning to the Parliamentary system of Government.
*Krishna Ananth is an advocate and Fellow, Nehru Memorial Museum and Library, Teen Murti.