Cover Story

Unsettling orders

Print edition : November 01, 2013

The Supreme Court building in New Delhi. Photo: Sandeep Saxena

In Parliament, RJD leader Lalu Prasad and Samajwadi Party chief Mulayam Singh Yadav lead a walkout of their MPs during voting on an issue in the Lok Sabha. A file picture. Photo: Subhav Shukla/PTI

Congress vice-president Rahul Gandhi speaking to the media at the Delhi Press Club after gatecrashing a media conference called by his party. Photo: SHANKER CHAKRAVARTY

A series of judicial verdicts in recent months bewilder the political parties but raise popular expectations of a polity free from corruption and criminality.

PUBLIC opinion polls on political and sociological trends conducted in the past two years have uniformly reported a particular finding: the rise of “political corruption” coming up as a prominent issue on the list of “primary concerns”. A number of experienced researchers, working in different organisations doing such research, told Frontline that until the 2009 Lok Sabha elections, the top-rated “primary concerns” of people were price rise, caste and community predilections and unemployment, almost always in that order. Political and administrative corruption figured in sixth or seventh spot on the list. However, these researchers point out, since the beginning of 2011 corruption moved up steadily in the list and in 2013 occupied the second, third or fourth positions in almost all surveys. “Surveys done for political parties and for business and industry have consistently shown an increase in the concern quotient on corruption. This should certainly be seen as the emergence of a new qualitative element,” said a senior researcher from a well-known agency.

In the past three months, a series of judgments from the judiciary at different levels, including the Supreme Court, have also reflected this public concern. The Supreme Court judgments were in Chief Election Commissioner vs Jan Chaukidar and Lily Thomas vs Union of India. Another important judgment was by the Central Bureau of Investigation (CBI) Special Court in Ranchi in the fodder scam case, in which Rashtriya Janata Dal (RJD) leader and former Bihar Chief Minister Lalu Prasad was sentenced to five years in prison.

The Jan Chaukidar case proscribed incarcerated persons from contesting elections to Parliament or the State Legislatures and the Lily Thomas case ruled that a sitting Member of Parliament or State Legislature, if convicted, would lose his or her membership immediately. These verdicts and the landmark “NOTA” judgment in People’s Union for Civil Liberties vs Union of India, which held that every electronic voting machine (EVM) must contain a ‘None of the Above’ option, have been perceived by a number of political and legal observers as the harbinger of far-reaching positive changes in India’s political setup.

Some are of the view that the Central Information Commissioner’s (CIC) order equating political parties to public authorities and making them answerable under the Right to Information (RTI) Act supplements these positive changes. Incidentally many of those who express such optimism are civil society activists who have not been political practitioners in the real sense.

The Lucknow-based political analyst Professor Sudhir Panwar told Frontline that the inherent limitations of such optimism were encapsulated in the very character of those who feel that way. He said:

“The context created by the judgments and the fervid hopes and aspirations on the basis of the same tend to make them look at politics as a phenomenon whose principal components are corruption and administrative and other misdemeanours perpetrated by individual practitioners. But politics is not just that. In a country like India, politics is the most concrete manifestation of our social and cultural plurality, the indigenous perspectives and methods of governance, development and empowerment. In short, the way of life of a country in all its diversity.

“Martin Shapiro, the author of several seminal studies on the judiciary and politics as well as the judicialisation of politics in the United States, has pointed to the prominence of constitutional judicial review as a ‘manifestation of global distrust of bureaucratic, governmental and corporate power, endowing the legal process with the task of protecting individuals’. The Canada-based academic Ran Hirschl, who has specialisation in both political science and law, has underscored in his path-breaking work Towards Juristocracy that activists utilise the judicial process in an attempt to secure their values and interest as laws.

“What we are witnessing here now seems to be a combination of both the manifestation of distrust of governmental and bureaucratic power and the utilisation of the judicial process by civil society players. The very foundation of democratic political institutions is based on a culture of persuasion and discussion, but the unilateral judicial solution of political and social issues undermines the importance of solutions based on compromise and consensus.”

Puzzled politicians

Several political leaders belonging to different parties and espousing diverse ideological perspectives have reflected Panwar's assessment in different ways. However, in terms of a precise and tangible response, the political class as a whole has been found wanting. In fact, the most palpable response from the political class to the corruption-related judgments was bewilderment. And this bewilderment has added to the fascination for the so-called “cleansing process” led by the judiciary.

At the theoretical level, the leaderships of all parties, ranging from the Congress and the Bharatiya Janata Party (BJP) to the smaller parties within the United Progressive Alliance and the National Democratic Alliance and outside them, agree that the verdicts pose a challenge to political practice and practitioners as they exist today. Many leaders also pointed out that in some instances, such as in Lily Thomas and in the CIC order on bringing political parties under the RTI, the details are such that they are tantamount to “unwarranted judicial intervention” in legislature-related matters.

Each of these verdicts led to a number of brainstorming sessions within, and among, political parties. These meetings were marked by an effort to evolve mechanisms to counter the import of these judgments jointly. A case in point was the all-party consultation, both inside the Business Advisory Committee of the Rajya Sabha and outside it, to seek ways and means to overcome the disqualification of convicted lawmakers. The points made in these meetings raised important questions on the legal and political limitations of the verdict. These included points like the absence of norms in the event of a conviction being overturned by an appeal court, the lack of clarity whether the acquitted legislator would get back his seat, the validity of the result of a bypoll held in the interregnum, and other related issues. But none of these discussions led to a concrete proposal or a well-laid-out plan of action.

While differences in terms of political nuances and approaches did contribute to the divergence, public opinion was also an important factor. In fact, Congress vice-president Rahul Gandhi mentioned it in so many words when he dramatically raised his voice against the ordinance rustled up by the Manmohan Singh government to prevent the disqualification of convicted lawmakers. In doing so he also pointed to the larger malady afflicting political parties on this issue: “It is time to stop this nonsense, political parties, mine and all others.... If you want to fight corruption in the country whether it is Congress party or BJP, we cannot continue making these small compromises. Because if we make these small compromises, then we compromise everywhere.” Despite this plain-speaking, Rahul Gandhi’s intervention was widely perceived as a dramatic performance characterised by political immaturity and disregard for democratic institutions and protocol, particularly while dealing with a decision approved by the Union Cabinet. In the final analysis, even the political immaturity ingrained in the Congress vice–president’s action only underscored the bewilderment of the political class to the judicial interventions.

Indications from the Congress are that before Rahul Gandhi’s dramatic performance, President Pranab Kumar Mukherjee had conveyed his own concerns in relation to the ordinance when he met Union Ministers Kapil Sibal, Kamal Nath and Sushilkumar Shinde. Apparently, the climate of judicial orders reflecting the popular sentiment against political corruption also figured in those discussions. Informed sources in the Congress say that apprehensions about the judiciary striking down the ordinance did figure in the meeting. Though the Central government has withdrawn the ordinance following Rahul Gandhi’s outburst, it has hardly helped reduce the sense of bewilderment in the political class on the possible ways of overcoming the judicial interventions.

The reaction of the BJP and its leaders, including Prime Ministerial candidate Narendra Modi, on the ordinance issue belies the party's confusion. Reacting to Rahul Gandhi's outburst a day after it happened, Modi only questioned the manner in which the Congress vice-president insulted Prime Minister Manmohan Singh on the issue. He did not go into the merits of the ordinance in detail or hail the Supreme Court verdict on the disqualification of lawmakers. BJP insiders admit that this silence or reticence from somebody who is known for aggressive articulation is not accidental. “Modi knows very well that this is dangerous political territory. If he lauds the disqualification of convicted legislators, it could become a millstone around his own neck. For, the conviction of his close associate Amit Shah in a criminal case may not be too far away,” said a senior BJP leader known to be close to Lal Krishna Advani.

Even so, other leaders of the BJP have made it appear that they had opposed the ordinance right from the time it was put up for discussion by the government. However, Kamal Nath pointed out that the BJP had supported the ordinance at the all-party meeting and had unanimously agreed to its provisions. That bit of political gamesmanship continues amid the overall confusion.

Senior Congress leader and Union Minister Vayalar Ravi points out that mainstream political parties need to sit together and evolve a consensus to overcome the challenges posed by the judicial interventions. He perceives the verdicts as manifestations of the complex political process that the country is going through over the past three decades or so and is optimistic that the political class will find new directions and new thinking from these interventions (see interview). Jagadanand Singh of the RJD agreed broadly with Ravi but felt that several other factors too needed to be addressed for achieving a consensus. “Historically, the class predilections of the judiciary have been with the privileged, and the underprivileged castes and classes have by and large got a raw deal,” he said. According to a number of RJD activists, who raised their voice against Lalu Prasad’s conviction, even in the trajectory of the fodder scam one can see instances of this partiality.

Taking these projections into consideration, Sudhir Panwar said the verdicts and the political confabulations on their consequences would lead to concrete steps to transform politics only if other issues were addressed. He said: “A number of measures, starting with improved voter registration, creation of an accessible, verifiable and transparent electoral mechanism and substantive police and judicial reforms to make rule of law real, effective and friendly to the underprivileged are required to make meaningful changes. This process needs to start with understanding the relevance and value of the political process in the country as opposed to the shenanigans of individual politicians. Unless that sense is arrived at collectively, the so-called promise held out by these judicial interventions could turn out to be a grave danger to our democracy and polity.”

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