By Sondip Bhattacharya
The Jan Lokpal Bill is in the icebox but it has turned the heat on two issues which should have been put on the front burner decades ago – the question of federalism and the independence of investigative agencies.
These were the substantive issues on which the bill faltered, and they will come up again and again in the legislatures as India develops its own brand of democracy.
The issues concerning federalism resolve into two questions. One, do states have the option of not complying with an all- India Act passed by Parliament with the powers of Article 253 of the Constitution? And two, can states pass laws under Article 252 applicable to themselves, and to other states which find them useful, even when they tread on ground partially or completely covered by central legislation? The latter question has not arisen yet, but it can become an issue whenever serious differences arise between the Centre and a state. The former is already a bone of contention.
We have had very few problems concerning federalism. So far, the most frequently raised issue has been that of the sharing of river water. But acrimony is inevitable as India industrialises in the pursuit of growth, resources become scarcer and competition increases for markets both here and overseas. Let us look at the variety of what is possible.
What if there is a perceived potential for Delhi to develop into a high- worth business hub, but it lacks the energy resources to service growth- led demand? Does it still have to contract with distribution companies and power- surplus states on purely commercial terms? Even when there is a question of national prosperity at stake? Or does Parliament have the right to step in and make it possible by fiat? Typically, fiats fall under Article 253 and concern laws designed to service international agreements and covenants.
But since economic muscle is a factor in determining our bargaining power with respect to such covenants, is not the ability to contract and service them a matter of national interest? And in that case, should Parliament not be empowered to force laws upon states in the interest of growth, which is the accepted national body mass index? The question has not come up yet, but it will someday.
We started this speculation with the possibility of Delhi becoming a high- value, energy- hungry business hub. This happens to be true already. Soon, the pressure could force legislative change.
Consider another scenario: what if Delhi, Haryana and Uttar Pradesh want to fuse into a bloc of high value business activity? Again, this is already partly true. Gurgaon and Faridabad in Haryana and Noida and Ghaziabad in Uttar Pradesh enjoy a special status as part of the National Capital Region.
What if these states wanted to extend the concept across their territories? Could they legislate common laws for themselves under Article 252, or would they have to plead for Parliamentary legislation? It is not clear.
Now, let us explore the limits of the possible. Could border states like Rajasthan or West Bengal legislate for extra security from forces drawn from the Centre, instead of petitioning as they do now? But of course, yes. The movement for the Jan Lokpal Bill has set a precedent.
De facto anyone, whether a body of citizens or a constitutional authority, can get whatever it wants if it has the bargaining power.
The movement has set the stage for a redrawing of Centre- state relations which has been long overdue. The outcome will be healthy. For instance, the Left Front in West Bengal, which held onto office for the longest possible time, had buttressed its power for decades on the plea that the Centre treated the state in a “stepmotherly” fashion. If states are able to bargain freely and transparently with the Centre – indeed, if they are allowed to gang up against it – such fakery would become politically invalid.
The second issue that the fracas over the Jan Lokpal Bill has raised concerns the independence of the Central Bureau of Investigation (CBI) from political authority.
There is a paradox here, for all democratic institutions relating to national security are supposed to be under political control. And yet, it has been clear for long that the CBI should be taken out of government control, since it is frequently called upon to investigate offences committed by those in high places, from Bofors scandal to 2G. However, it is not abundantly clear why it should be brought under the Lokpal, as the Opposition wants. Rather, it should be made a completely independent service.
Big- ticket crime has become the focus of the work of the CBI but its primary responsibility ought to be national security, the very matter from which its efforts are routinely diverted. Joginder Paul and B. R. Lall, who have served as director and joint director, have revealed the extent to which the agency has been subverted — corrupted, in fact — by political interests. To allow it to serve national security, it should be made a completely apolitical body.
Consider a parallel with another body entrusted with national security: the Army. Its cadre is raised independently of other government processes, it is explicitly expected to be apolitical and its chief — barring insoluble controversies over his date of birth — holds office not at the pleasure of any political authority but according to internal rules. That’s a world apart from the prospective status of the CBI, an organisation which remains answerable to some kind of political authority since its chief will be chosen by consensus between the ruling party and the Opposition.
The issue of independence extends to all investigative, intelligence and police bureaus, which have been routinely misused as weapons of political vendetta.
Recently, it was reported that the energies of the Central Intelligence Bureau were being misspent in projecting the electoral fortunes of the Congress. In the states, the police are routinely deployed in the interests of various political lobbies. This simply has to end, and police reforms which have been stalled for years by the political class have to be implemented.
The heated discussion in Parliament over the Jan Lokpal Bill has thrown up precisely the two issues which are either perceived as problems already or threaten to become matters of contention in the years ahead. INAV