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We, the people, protest
If Tahrir Square was about overthrowing a dictatorship, Jantar Mantar was about civil society trumping elected representatives. The appointment of the joint drafting committee for the Lokpal Bill, in response to Anna Hazare's hunger strike, is but the latest milestone in a long drawn out struggle by civil society to institutionalise pre-legislative consultation. Those who are raising democratic or institutional concerns over this experiment in which five ministers are due to sit from April 16 onwards with five civil society representatives to draft a law on probity are missing the wood for the trees. Irrespective of whether the two sides succeed in reconciling their fundamentally different approaches to combating corruption, the very attempt at what would have seemed unthinkable till just a few days has come as a tacit acknowledgement by the state that the will of the people could sometimes be at variance with the will of the elected representatives. The government, after all, would not have conceded Hazare's demand so readily unless it was convinced that his fast had captured popular imagination.
The constitution of the joint drafting committee takes the principle of participation in policy making to a new level, that too in a context in which politicians and bureaucrats, because of the spate of scams, are embroiled in a conflict of interest controversy.
Long before the India Against Corruption (IAC) campaign came up with its ambitious idea of an independent Lokpal with police powers over all the three organs of the state, the process of pushing the envelope of transparency and accountability had started way back in 1996 with the first ever civil society draft of the right to information (RTI).
The 1996 draft, presented by the National Campaign for People's Right to Information (NCPRI), set off a chain of events culminating in the landmark legislation in 2005. A lot of the hurdles faced by the NCPRI, both before and after the enactment of the RTI, were thanks to the wide gap between the rhetoric and reality of the government's commitment to transparency.
The history of the RTI Act testifies to the limitations of representative democracy in India. For, UPA-I was about as reluctant to enact the RTI Bill espoused by the NCPRI as UPA-II is to adopt the Jan Lokpal Bill pushed by IAC. It is no secret that, for all its progressive features, the RTI Act had to be forced on the elected representatives by the Sonia Gandhi-headed National Advisory Council (NAC), set up as it was in 2004 as an interface between civil society and the government.
But for the accident of the NAC innovation, backed by the Left, India was unlikely to have experienced that transparency revolution in 2005. This despite the promise made by the Congress party in its 2004 election manifesto that it would "strengthen" the Freedom of Information (FOI) Act, which had been passed during the NDA regime in 2002 but had never been brought into force.
The elected representatives, however, showed no sign of honoring the promise they had made to the voters. It was not as if there was any delay or laxity on the part of civil society in suggesting ways and means of strengthening the FOI Act. Within three months of the 2004 election, the NCPRI submitted its recommendations to the NAC which in turn endorsed most of them.
But instead of taking up the amendments proposed by the NAC, the government, betraying an undemocratic streak, tried to get away with an announcement of its intention to enforce the FOI Act without any changes. Reneging on its election promise, the government had no qualms in suggesting that it would think of amending the FOI Act, with all its deficiencies, only after trying it out for a few years.
Only after months of intense lobbying by RTI activists did the government give up its plan of resuscitating the FOI Act. But when it finally introduced the RTI Bill in December 2004, there was a catch. Some of the critical clauses recommended by the NCPRI and endorsed by the NAC were either deleted or amended. The most glaring departure in the government's RTI Bill was that its jurisdiction was limited to the Centre as the states were exempted from its ambit.
Civil society protested this omission since most of the information relevant to the common man was more likely to be with the state governments than with the Centre. With the NAC intervening once again on behalf of civil society, UPA-I was left with little choice but to redress this and other such deficiencies in the RTI Bill.
When the Bill was finally passed by both Houses in May 2005, largely on the lines proposed by civil society, the price extracted by the government was to delete a penal clause which imposed a liability of imprisonment up to five years if the public information officer had knowingly given false information or denied information in a mala fide manner. In the negotiations between the two sides, the "idealism" of civil society was tempered by the "realism" of the government.
Thus, the RTI became the first recorded instance of participatory law-making in India. The precedent was followed in the case of at least two other historic Bills passed during the tenure of UPA-I. Thanks to civil society stalwarts Aruna Roy and Jean Dreze, the NAC served as a forum for pre-legislative consultation with regard to the National Rural Employment Guarantee Act (NREGA) and the Forest Rights Act (FRA).
The next major milestone in the struggle for greater transparency in law making was again related to the RTI. For, within a year of its enforcement, netas and babus sought to dilute some of its key provisions, especially the one that rendered their file-notings - the views recorded by them in files - liable to be disclosed. When the draft amendment Bill leaked out, it provoked a howl of protest from the growing tribe of RTI activists.
From the Prime Minister downwards, the government tried to pass off the proposed subversion of the RTI as an attempt to make the law more effective. Interestingly, the only activist to who Manmohan Singh wrote personally at that time was Hazare.
In his July 2006 letter to Hazare, Manmohan Singh admitted, however unwittingly, that his government was seeking to limit the disclosure of file-notings to "development and social issues". Camouflaging the amendment as an expansion of the scope of the Act, the Prime Minister wrote: "The overall effort is to promote even greater transparency and accountability in our decision making process."
Nobody in civil society, however, took Manmohan Singh's word at face value, despite his much touted reputation for personal integrity. The protests that followed included a dharna in August 2006 by Aruna Roy and others at Jantar Mantar while Hazare went on an indefinite fast in his Maharashtra village, Ralegan Siddhi. In the face of such determined resistance, the government dropped the plan of amending the RTI Act.
The setback suffered in 2006 did not deter the government from making some more abortive efforts to amend what is otherwise held up as showpiece legislation. The fact that civil society has been able to thwart the government's repeated moves to dilute the RTI has sent out the message that law making could not any longer be treated as a jealously guarded monopoly of the state. The will of people's representatives cannot be misused to ride roughshod over the will of the people.
Another milestone in the evolution of participatory law making was the interpretation given last year by the Central Information Commission (CIC) on Section 4(1)( c) of the RTI Act mandating public authorities "to publish all relevant facts while formulating important policies or announcing the decisions which affect public". While seeking a copy of the draft Whistleblower Protection Bill, activist Venkatesh Nayak asked the CIC whether Section 4(1)( c) could be extended to pre-legislative consultation.
In August 2010, a full bench of the CIC recommended that a 2002 circular on the procedure for preparing and submitting cabinet notes on legislative proposals be amended to bring it in tune with the RTI clause. But, despite this CIC decision and despite the precedents set before the enactment of the RTI Act, NREGA and FRA, the government has been loath to turn pre-legislative consultation into a norm. For, even though it amended the circular in December 2010, no change has been made in line with the CIC's recommendation for public consultation on draft Bills.
Against this backdrop, the NCPRI held a public meeting four months ago to build a campaign for institutionalising pre-legislative consultation. Around the same time, the IAC campaign on Jan Lokpal gathered momentum, thanks partly to the leakage of the effete government draft on Lokpal. The IAC's lobbying succeeded in thwarting the government's reported move in January to deliver the nation with a fait accompli by promulgating an ordinance.
In the circumstances, Hazare and other IAC members felt justified in believing that the government could not be trusted to create an ombudsman that would have enough powers to take on high level corruption. In his letter to the Prime Minister on February 26, Hazare came up with the idea of ramping up participatory law making to the level of setting up a committee in which government and civil society representatives could sit across the table.
His insistence on the joint drafting committee implied a lack of confidence in not only the group of ministers headed by Pranab Mukherjee and the consultation process initiated by the NAC on the very scheme proposed by IAC. Had the government shown greater receptivity to Jan Lokpal, it could have saved itself the odium of setting up the joint drafting committee - a huge administrative leap - under the pressure of a widely resonant hunger strike. The outcome of all this churning should not be limited to drafting a mutually acceptable Lokpal Bill. Ideally, it should also lead to a systemic reform proposed by the CIC: draft Bills be subjected to public scrutiny before they attain a degree of finality with the endorsement of the cabinet.
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