Friday, July 08, 2011

Anna and pre-legislative scrutiny

Given that this blog has discussed the Hazare campaign in detail, readers may be interested in my EPW article on the legislative reform lessons we should learn from it. I have made similar arguments in a more succinct form in this op-ed published by the New Indian Express. Some excerpts follow:

... the flawed institutional set-up of the NAC entails the same twin dangers as extra-institutional interventions like those of the Anna and Ramdev: the danger from selection and the danger from competing representation. To the question ‘Who should make laws?’ the founders of our constitution rightly answered, ‘The people, through their directly elected representatives’. The question we are asking now is: ‘Who should be consulted while making laws?’ The answer to this question is: Those who will be affected by these laws, and experts who have special knowledge of the issues involved. Unlike direct elections, however, there isn’t any impartial selection process which helps us identify those affected and those with expertise. Allowing power to make this selection may facilitate the elite, corporate and sectarian capture of the state.
To guard against the danger from selection, participation in the law-making process must be transparent, universal, deliberative and institutionalised.
...
The danger from competitive representation is equally pernicious. When Ramdev claims to live in the hearts of millions of citizens, he is claiming representative legitimacy without having demonstrated it in the only constitutionally recognised manner: winning an election. Similarly, a body like the NAC which presents itself as an interface between the state and civil society will inevitably begin to compete with Parliament for representative legitimacy. If our democracy is to survive, elected legislatures alone should be able to claim representative legitimacy. So long as politics — through the universal right to stand for elections — is open to everyone, there should not be any compromise on this principle. Admittedly, there is a strong case for dismantling the barriers of money, muscle and ménage that currently prevent ordinary citizens from entering politics.
The solution, clearly, lies in strengthening Parliament by augmenting its democratic credentials, rather than weakening it by extending legitimacy to competitive claimants of popular representation.
...
It is in this context that one must welcome the decision taken by the NAC last month to ask its working group on transparency to ‘evolve a policy on pre-legislative consultative process’. Ironic though it is, the most important contribution of the NAC to Indian politics will be to chart the path to its own irrelevance. As it scripts its suicide note, we should wish it the very best.

7 comments:

Rohit De said...

"So long as our democracy is to survive, elected legislatures alone should be able to claim representative legitimacy"

Tarunabh, I was wondering what room this leaves for any sort of independent agency. As we had discussed previously, the Indian separation of powers does not stick to a threefold division of powers. Bodies such as the Public Service Commissions, the Election Commission and the CAG are expressly provided for within the constitution.

Furthermore, constitutional practice dating back to the 1950s has permitted the setting up of advisory commissions with significant responsibilities beginning with the Planning Commission) and covering a whole gamut of statutory bodies like the National Commission for Women, the National Human Rights Commission etc, all of whom are engaged in making legislation

Finally, if there were a clause requring NAC members to be Rajya Sabha MPs (most of them fit the profile, and some had already served their), would it meet your objections? The NAC was set up as a steering committee for the UPA, if it had consisted of politicians but those who did not hold elected office (such as Prakash Karat) but whose


I don't think the Anna Hazare/Ramdev model is similiar to NAC. NAC is an example of the government coopting/consulting civil society members through a established framework. The Anna model is closer to what the Naga rebels seeks to do, to force the state to listen to them

Tarunabh Khaitan said...

dear rohit, i remember our earlier discussion and learnt from it. notice that in this piece i no longer claim that elected legislatures alone can legislate - i recognise that several other inputs from other bodies may be necessary. all i am saying is that no other body should compete for popular representation of the people - this must be limited to parliament and state legislatures. your criticisms of the previous post helped me put my finger on precisely what the source of my discomfort was. i think this must be right, but am interested in what you have to say.

IPGuest said...

wonderful pieces Tarun,

greatly enjoyed reading them. do we find any support for principles of participatory democracy in our constituent assembly debates etc. or in any court decision that dealt with principles of democracy? could one say that principles of participatory democracy form part of the basic structure?

Shamnad Basheer said...

wonderful pieces Tarun,

greatly enjoyed reading them. do we find any support for principles of participatory democracy in our constituent assembly debates etc. or in any court decision that dealt with principles of democracy? could one say that principles of participatory democracy form part of the basic structure?

Tarunabh Khaitan said...

thanks shamnad. i am not aware of any historic or judicial material in india which talks of participative democracy. if you come across something, please do share.

Gautam Bhatia said...

Dear Tarunabh,

While not dealing with participatory democracy per se, I believe that Justice Chandrachud, in one of the basic structure cases (Raj Narain, or Minerva Mills) does discuss the "concept" of democracy (as forming part of the basic structure), and how it is not possible to narrow it down to any specific version of governance/majority rule etc.

Anuj said...

The judgment of the SC in The Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia, 1960 SCR (2) 821 I think has gone in this direction. Section 3 of the UP Special Powers Act was in challenge. Section 3 makes instigation to not pay or defer payment of any liability an offence. Dr. Lohia urged the farmers to not pay increase in some tax. One of the reasons why the Court struck down s. 3 as unconstitutional was:
"It is said that in a democratic set up there is no scope for agitational approach and that if a law is bad the only course is to get it modified by democratic process and that any instigation to break the law is in itself a disturbance of, the public order. If this argument without obvious limitations be accepted, it would destroy the right to freedom of speech which is the very foundation of democratic way of life."
I think this does reflect some opinion on participatory democracy and is certainly useful to dismiss the agrument that the Anna Hajare team has been employing undemocratic methods to compel parliament to enact a legislation.
Anuj