Jan Lokpal-Changing the power structure

The Tribune, May 28, 2011

OP-ED GOVERNANCE

Jan Lokpal: Changing the power structure

The Lokpal Bill is a small step in the shift of a bit of power from the political class, supported by bureaucracy and business, in favour of the people. Such shifts are necessary from time to time in a dynamic society to correct imbalances that creep in over time

Jagdeep S. Chhokar

http://www.tribuneindia.com/2011/20110528/edit.htm#6

THE last time a corruption tsunami hit the country, it ended up with two significant changes. The time was the late 1980s, the trigger was Bofors. The changes were a move towards a federal polity from the unitary one prevalent since Independence, and the start of a change in the overall power structure in society, with the subaltern classes realising the strength of their numbers.

While the current “Bofors” are the Commonwealth Games, 2-G, mining, and the like, what changes will this current tsunami bring forth is not clear. Not being blessed with clairvoyance, one can only look at the game as it is being played and try to look for straws in the wind.

While the real changes will take time manifesting themselves, the current visible face of the saagar-manthan appears to be the Lokpal Bill. It is of course not clear whether, finally, the jinx of 42 years will be broken and there will be a Lokpal, and in what form, but the societal dynamics of power are fascinating.

Continuing the practice started with the fourth Lok Sabha in 1969 and another six attempts, the government innocently prepared yet another draft of the Lokpal Bill in October 2010. This is what seems to have now acquired a life of its own, inviting sobriquets such as “monster”, “Leviathan”, “beacon of hope”. Why is it causing such extreme reactions?

Assume that a potentially effective Lokpal Bill gets passed and is also implemented in the right spirit, who will get affected, and how? Those who benefit from corruption are likely to face a cut to their monetary inflows, and those who have to pay to get their legitimate dues are likely to gain. Admittedly, this is a simplistic formulation but will do, given the space constraints.

Again, who benefits from corruption the most? The proverbial common citizens who pay bribes benefit by getting their job done, but the one who gets the bribe to do the job benefits more. Who are these beneficiaries?

The nexus of the political class, bureaucracy and business is too well known to need explanation. Liberalisation has not broken this nexus but has only changed some of the dramatis personae. The avalanche of opposition to the Jan Lokpal Bill leaves no room for doubt that the opposition is intense and organised. All forms of the traditional saam, daam, dand, bhed are being used to discredit the whole attempt and the very idea that any one other than these three sectors of society can even think of having a say in the law-making process.

The politicians, being the kingpin of this nexus, possibly have the most to lose. Actually all the Jan Lokpal movement has done so far is to create a mere whiff in the minds of politicians that it just might be possible for someone to challenge their completely unfettered hegemony over matters of the state for the period between two elections. This mere whiff seems to have unsettled the political class so much that all manner of stratagems are being used to nip this audacity of common folk in the bud.

And what of these common folk? Their tragedy is that they need someone to “represent” them, as 1.2 billion people seemingly cannot express themselves except through their representatives. The actual representativeness of the elected representative is in some doubt despite the euphoria at the outcome of the recent state assembly elections. The other claimant to representing the common folk is what used to be called the “civil society”, which now, in some people’s lexicon, has become a bad word.

Who, or what, is this “civil society”? Without going into an academic discourse, these are supposed to be people who do things for general, public good without the expectation of a tangible payoff, in contrast to those who get some return from doing public good, such as salary for bureaucrats, exercise of state power for politicians. It is a large, diverse, and complex mass of people, usually self-proclaimed do-gooders.

While doing selfless service, they are not free from usual human weaknesses, and therefore amenable to manipulation by those who have high stakes. How, and by what means is manipulation done depends on who is to be manipulated. In true Chanakyasque style, our politicians have mastered this art. Two well known techniques being “divide and rule”, and a law often attributed to Parkinson, “Delay is the deadliest form of denial.”

The political class seems to have succeeded in convincing some significant parts of civil society that the Lokpal Bill being an extremely important piece of legislation, needs to be discussed in every district, taluka, block headquarters before it can be considered seriously, the real agenda of course being to delay the process so that the commitments made to get the Jantar Mantar fast broken can be progressively diluted ad infinitum.

What needs to be remembered is that this bill is a small step in the shift of a bit of power from the political class supported by the bureaucracy and the business, in favour of the people. Such shifts are necessary from time to time in a dynamic society to correct imbalances that creep in over time. The side that stands to lose even a bit of its power is bound to resist. It is for the countervailing forces to keep themselves together if any shift, however small, is to take place.

The game is on, let’s keep watching.

The writer is a former professor, Dean, and Director In-charge of the Indian Institute of Management, Ahmedabad.

Vote for positive change

Vote for positive change

Jagdeep S Chhokar

GovernanceNow, May 16-31, 2011, p.31

The interim success of the movement for Jan Lokpal Bill, led by Anna Hazare, and the almost raging debate on corruption, have once again brought focus on the issue of wide-ranging reforms. Before going on to discuss some of what has been called a slew or a basket of reforms, it is important to underline that the current events seem to have brought the Indian society and

polity at a critical juncture where far-reaching changes in the way we govern ourselves seem to be a possibility within reach. It is possibly the first time in independent India that the political establishment seems to feel a threat to its hegemony.

While the necessity, criticality and contribution of the political establishment in a representative democracy is a given and must be recognized and respected, its blatant functioning for its own benefit, seemingly at the cost of the nation and its people, is not healthy and points to the need for course correction. The Jan Lokpal Bill is one such correction whose time seems to have come after a 42-year wait and this opportunity of moving the balance of power in favour of the so-called non-ruling class must not be lost.

Among the other reforms that have been mentioned, not only by the media in general but also by some of those intimately involved with the Jan Lokpal Bill, are electoral reforms. It has been

said that while the Lokpal Bill is an attempt to catch and punish those who engage in corruption, electoral reforms may be able to prevent those susceptible or prone to corruption from getting into positions where they can indulge in it. But what do electoral reforms entail? Is it only getting a button on the EVM that says “None of the above”, and/or getting the “Right to recall”?

Elections are usually thought of as a periodic affairs, originally on a five-year cycle, when “We, the people” choose who will govern us for the next five years. As a TV spot featuring Aamir Khan says, we often spend more time choosing which vegetables to buy than in deciding whom to vote for. Whether that is realistic or not, it seems to be true that most of us don’t spend much time thinking about what goes on behind our casting of our vote. While the election commission of

India is the best source of this information, here is what possibly is an incomplete listing of what the electoral process includes.

It starts with the basic issue of “Who can vote?” While the parliament decides what the voting age should be, the responsibility of registering voters rests with the Election Commission (EC). The next basic issue is: “Who can contest?” Once again, the law is made by the parliament

but its implementation rests with the EC whose officials (whether permanent or on deputation) accept or reject nomination papers. In between these two, there is a plethora of actions that have to be taken. How will the winner be decided? We follow the “first-past-the-post” system that we

borrowed from the British, who themselves recently held a referendum about its continuation. Is the current system appropriate for us or should we change? If we do want to change, which of the 272 systems that the Law Commission of India tells us exist in the world, should we choose?

Which political parties are to be recognised and are eligible to put up candidates on their behalf? How much money can a candidate spend on the election campaign? How can, and should, the expenditure be monitored? How many polling booths should there be and where should they be located? How many and who should be the polling agents, and election observers?

While the constitution lays down the life of the legislatures, it also provides for a window of time during which the elections must be held. Decisions about exactly when to hold elections also have

to be made. Of course, Article 324 (1) of the constitution vests “the superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to parliament and to the legislature of every state and of elections to the offices of president and vice-president held under this constitution” with the election commission.

While this is what is called “plenary” power, which the dictionary describes, as “full; complete; entire; absolute; unqualified”, it still has to be exercised within the limits laid down in the constitution and as interpreted by the supreme court.

It is in this background that we are embarking on a series on electoral reforms. Each of the next few issues will carry a fairly in-depth piece on an important aspect of electoral reforms. This week, we look at the rising expenditure on holding elections and the ways to curb this escalating

cost.

Chhokar, a former dean of IIM, Ahmedabad, is a founder of Association for Democratic

Reforms and National Election Watch.

For the best possible democracy: Electoral reform consultations

For the best possible democracy

Jagdeep S Chhokar

GovernanceNow | March 1-15, 2011, pp. 32-33

The law minister and the chief election commissioner announced a major initiative on electoral reforms on December 9. They announced that seven regional and one national consultation would be held over the next couple of months with political parties, NGOs and other stakeholders for a comprehensive overhaul of the electoral laws. It was indicated that the proposals would be ready for initiating action within six months of the national consultation

in New Delhi on April 2-3, 2011.

Our electoral laws were made almost 60 years ago, during idealistic times in the afterglow of independence. While there has been no shortage of ideas and recommendations (see list below for the list of reports) and there have been piecemeal amendments from time to time, the laws, as a body, are almost completely out of tune with current ground realities. The initiative to collect views from across the country in order to make comprehensive reforms is thus very

welcome.

Elec toral reforms: the

reports so far

----------------------------------------------------

1. The Second Administrative Reforms Commission (2008)

2. Election Commission of India – Proposed Electoral Reforms (2004)

3. National Commission to review the Working of the Constitution (2001)

4. Law Commission Report on Reform of the Electoral Laws (1999)

5. Indrajit Gupta Committee on State Funding of Election (1998)

6. Vohra Committee Report (1993)

7. Goswami Committee on Electoral Reforms (1990)

-----------------------------------------------------

The whole effort can be looked at from two perspectives: content and process. One way of getting at the content is obviously to study all the existing recommendations and the amendments and their rationale, see how they match up with existing realities and how things are likely to evolve in the years to come, and then develop the proposals for change. This can be improved by consultations with a wide cross-section of people. This is precisely what the law ministry and the election commission set out to do with the seven regional and one national consultation, and that is what raised high hopes.

There have been five consultations so far, at Bhopal, Kolkata, Mumbai, Lucknow, and Chandigarh, but the process followed during the consultations, sadly, does not inspire much confidence. The first consultation in Bhopal seemed limited to politicians and bureaucrats making

speeches. Based on feedback given after Bhopal, the format at Kolkata was revised to include parallel panel discussions. The same format has been followed at Mumbai, Lucknow, and Chandigarh.

The Chandigarh consultation

The consultation at Chandigarh was scheduled for February 5, at the Judicial Academy, consisting of three sessions: inaugural session (10 am to 12 noon), three parallel panel sessions (12 noon to 1.30 pm), and the valedictory session (1.35 pm to 2.15 pm). What actually happened is revealing. The inaugural session started with a ‘welcome address’ by the registrar of the

National Law University, Patiala, followed by an ‘introduction on (sic) electoral reforms’ by Vivek Tankha, additional solicitor general of India, and the chairman of the core committee on electoral reforms constituted by the law ministry. ‘Thoughts on electoral reforms’ by Bhupinder

Singh Hooda, chief minister of Haryana, followed. Next was a talk on ‘the need for electoral reforms in India’ by S Y Quraishi, chief election commissioner. Then there were ‘thoughts on electoral reforms’ by Manish Tewari, Salman Khurshid and Pawan Bansal, followed by ‘agenda for electoral reforms’ by M Veerappa Moily, law minister. Following this, the governor of Punjab, Shivraj Patil, delivered the ‘inaugural address’, followed by the ‘vote of thanks’ by Mohan Jain, additional solicitor general.

What is important to note is that the session started at 10 am and lasted till 1.30 pm. The parallel ‘panel sessions’ were officially and technically reduced from 90 minutes (12 noon to 1.30 pm) to one hour (1.30-2.30) but actually lasted only 45 minutes (starting at 1.45 pm and finishing at 2.30 pm). Two panel sessions had six listed panelists each, and the third had seven. In the panel session that I attended, the panelists spoke for barely five minutes each, that too with the chairperson almost constantly exhorting them to be brief, and two other participants

got to speak for about a couple of minutes each.

The panel sessions were to be followed by the valedictory session, which was supposed to comprise of six items, each of five minutes. These, as listed, were (i) opening remarks, (ii) I panel chairperson’s presentation, (iii) II panel chairperson’s presentation, (iv) III panel chairperson’s

presentation (v) address by chief election commissioner, and (vi) reflections by M Veerappa Moily, union minister for law and justice. This was to be followed by a 10-minute “prize distribution for the best research papers,” ending the programme at 2.15 pm.

When the panel session participants reached the venue of the valedictory session, around 2.30 pm, Pawan Bansal was giving prizes to the students and there was hardly anyone else around. Most people had moved on to lunch. The first three rows in the Judicial Academy auditorium were reserved for ‘VVIPs’, next two for ‘advocates’, the next two for ‘judicial officers’, and one after that for ‘press’. The remaining seemed occupied by a lot of young people in formal

attire who seemed to be students. Of the 19 panelists listed for the three panel sessions, there were five politicians, five academics (three of whom were professors of law), four from the media, three advocates, and two bureaucrats (one retired IPS officer and one serving IAS officer). The three professors of law and three advocates, taken together, make six legal

professionals out of the total 19 panelists.

Reflections

The process followed for the five consultations conducted so far certainly seems to have involved local political figures, including chief ministers. For example, in Bhopal, Madhya Pradesh chief minister Shivraj Singh Chouhan’s remarks that the Rajya Sabha should be closed down, as its

memberships were being freely bought and sold at the time of elections, were a major news story. Similarly, at Lucknow, the media reported that it was the first non-BSP event attended by Mayawati after becoming chief minister. However, the event at Chandigarh seemed to be

meant almost exclusively for the Congress. In addition to the speakers mentioned above, Rajinder Kaur Bhattal and Vidya Stokes were also on the main dais though they did not speak. There were some representatives of the BJP, INLD, and NCP among the panelists but the Akalis

were conspicuous by their absence.

All the five consultations held so far seem to have been dominated by the legal fraternity. This is also indicated by the composition of nine-member ‘core committee’ constituted by the law ministry “to work as a nodal committee for electoral reforms”. The committee consisted of three additional solicitor generals, one legal scholar, one advocate, one additional secretary to the government of India (law ministry), one joint secretary and legislative council, one person from a civil society organisation, and four research fellows. As a natural corollary to this composition, the consultation in Mumbai was held in and organised by the law department of Bombay University, and the one in Chandigarh was held at the Judicial Academy.

It is of course true that any significant change in the electoral process would necessarily require fresh legislation but the assumption that only politician, legal experts and bureaucrats will be able to put together the most appropriate legislation is not correct. There are a lot of other people in the population, and not limited to organised civil society groups, who have experience and knowledge of the electoral process and may be able to contribute meaningfully to the ongoing exercise. A couple of examples of potentially significant contributors come to mind. One

is the former supreme court judge and the former chairman of the law commission of India, Justice B P Jeevan Reddy, under whose stewardship the 170th report of the law commission of India on electoral reforms was prepared. Though it was written in 1999 and therefore may

require some updating in view of the changes in the situation on the ground, it remains, by far, the most comprehensive document on the subject in the country. The others are the former chief election commissioners, J M Lyngdoh and N Gopalaswami.

The other concern is the lack of general awareness about this exercise. At Lucknow, two days before the proposed consultation, a large section of the media did not seem aware of what was planned. The situation in Chandigarh was different, as the media seemed fully aware. It is difficult to say if that was the result of the high “power” speakers or otherwise. Following

the media reports, one is struck about the lack of “buzz” about this extremely significant

exercise in the country.

Reforming the electoral process in the country is actually the most important activity in the governance of the nation since the making of the constitution, as the chief election commissioner, S Y Quraishi has often said. This indeed is true and the electoral process is the backbone of the

functioning of our democracy. For democracy to bear its just fruits, it is necessary for the electoral process to be effective and efficient, and to cover the entire political spectrum, including the functioning of political parties. It is hoped the process will be recalibrated to ensure that the

outcome is the best possible for the future of democracy in the country.

Chhokar is a former professor, dean and director-in-charge of Indian Institute of Management, Ahmedabad, and a founding member of Association for Democratic Reforms (www.adrindia.org) and National Election Watch.

How to keep our votes safe: State funding of elections

The Hindustan Times

March 28, 2011

How to keep our votes safe

Jagdeep S Chhokar

http://www.hindustantimes.com/How-to-keep-our-votes-safe/H1-Article1-678289.aspx

The editorial, Not a wealth of information (Our Take, March 19), was a correct description of what WikiLeaks has revealed about how India's foreign affairs and political establishments work.

However, one sentence needs to be commented on, and that is its recommendation for setting up "a commission to look into the idea of public funding of political campaigns". This reveals how short our public memory is.

Three learned groups have laboured over this issue.

In 1998, "all parties, without exception, felt seriously concerned [about] the mounting role of money power, particularly black money, in the electoral field."

The outcome was the Committee of State Funding of Elections (the Indrajit Gupta Committee), 1998. Soon after, in 1999, the Law Commission of India submitted its report on electoral reforms that had a separate section on 'Control of election expenses' including a chapter on 'State funding'.

Subsequently, the National Commission to Review the Working of the Constitution (NCRWC) set up in 2000, also, in its report in 2002, made significant observations on State funding. With the wealth of knowledge, analysis and recommendations available in these reports, it is now time for action and not for setting up yet another commission.

What do these reports recommend?

The Indrajit Gupta committee report is often quoted in support of State funding. What is overlooked is the opening paragraph of the 'Conclusion' 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… 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."

The Law Commission specifies what these reforms are, particularly in the context of State funding: "… 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 very object underlying the idea of State funding of elections."

Among "the other provisions" are those "ensuring internal democracy, internal structures, and maintenance of accounts, their auditing and submission to Election Commission."

The NCRWC reiterates the above: "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."

It is, therefore, clear that while State funding may be helpful in improving our democracy, resorting to it before ensuring deeper electoral and political reforms such as internal democracy and financial transparency in political parties, will be counterproductive.

The recent joint initiative of the law ministry and the Election Commission is a historic opportunity for 'overhauling of the electoral process' and for putting democracy on a sound path.

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

http://www.hindustantimes.com/StoryPage/Print/678289.aspx

© Copyright 2010 Hindustan Times

Campaign for finances: State funding of elections

Campaign for finances

Why we should not rush into state funding of elections?

http://www.indianexpress.com/news/campaign-for-finances/763467/

Jagdeep S. Chhokar

Indian Express, Thursday, March 17 2011

In this season of scams, there is one more in the making. There has been a lot of talk about the increasing cost of elections, and state funding is again in the news as a panacea (‘Elections awash in cash’ by M. Veerappa Moily, IE, March 7).

The starting point of all discussions on state funding is the 1998 Indrajit Gupta Committee report. While touting its recommendations, the first paragraph of the “Conclusion” is never mentioned. It says: “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.” Coincidentally, the Law Commission of India had undertaken an exercise for “overhauling” the electoral process and submitted its report in May 1999. On state funding, it said: “It is absolutely essential before the idea of state funding (whether partial or total) is resorted to, that 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.... 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.”

Then came the report of the National Commission to Review the Working of the Constitution (NCRWC) in 2002. Its observation on state funding is: “Any system of state funding of elections bears a close nexus to the regulation of working of political parties by law.... Therefore, proposal for state funding should be deferred till these regulator mechanisms are firmly in position.”

A “comprehensive paper on the campaign finance in foreign countries” published in 1999 by the International Foundation for Election Systems (IFES), and quoted by the Union law minister in his article, also points out that even when public funds are provided to political parties, they continue to use other funds.

Recall the 2009 Lok Sabha elections, when 6,719 of 6,753 candidates declared that they had spent only 45-55 per cent of the Rs 25 lakh limit. This, alongside the clamour that the limit was too low, shows that state funding is not going to solve any of our electoral problems, a fact also noted by the Indrajit Gupta Committee.

The IFES brought out another paper on campaign finance in 2009 in which it said that “disclosure is meaningless unless regulators make information publicly available. (It was) stressed... that civil society must have ready access to usable reports.” In this context, it is worth pointing out that disclosure of assets and liabilities of candidates was bitterly opposed by all parties in the Supreme Court from 2001 to 2003, and the government of the day even issued an ordinance to try to prevent it. Then, in 2007-08, 15 parties fought tooth and nail, in hearings in the Central Information Commission, to prevent disclosure of their income-tax returns.

The IFES paper concludes that at the end of the day, laws must be enforced. What it overlooks is that for laws to be enforced, a precondition is the existence of laws. That is what possibly prompted the Law Commission to point out: “It is necessary to provide by law for the formation, functioning, income and expenditure and the internal working of the recognised political parties.” Further: “It is therefore necessary to introduce internal democracy, financial transparency and accountability in the working of political parties.” The NCRWC too echoed the views of the Law Commission.

The ministry of law put out a background paper on electoral reforms. It mentions seven issues: criminalisation of politics, financing of elections, conduct and better management of election, regulation of political parties, auditing of finances of parties, adjudication of election disputes and review of the anti-defection law. Going by the general sense of the reports of the Law Commission, the NCRWC and the Indrajit Gupta Committee, regulation of political parties seems to be the most pressing issue. It is perplexing that the background paper confines its section “Regulating Political Parties” to select observations of the NCRWC, and even in those the para quoted above is overlooked. The Law Commission’s report is conspicuously missing from that section.

It is hoped 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, and the historic initiative for electoral reforms started by the law ministry and the Election Commission will not lose sight of critical issues such as internal democracy and financial transparency of political parties.

The writer is a former professor, dean and director in-charge of IIM, Ahmedabad express@expressindia.com