Monday, April 4, 2005

Rule of Law or of Law Breakers?

What are the most important problems facing India and what are the most urgent reforms needed? The answer varies with the knowledge and interests of the person asked. The list includes, Infrastructure, Electricity, roads, railways, Agriculture, irrigation, Poverty, Inequality, Education, Health, Water shortage, Urban development /slums, high fiscal/revenue deficit, low tax-gdp ratio, low expenditures on social sectors/infrastructure, land policy/rules.
Perhaps one can focus the question a little: If you were made dictator of India with the authority to address a few issues what would they be? My answer: The most difficult thing for a democracy to reform. That which affects those who make the laws (members of parliament and state assemblies) and are supposed to be the guardians of these laws (judiciary, police). The greatest danger to the nation and the greatest long-term threat to India’s continuing development is the breaking of the law by the law makers. Like the proverbial rotting head of a fish it affects everything else.
The deterioration in governance, that has taken place over the decades is broad based & universal: Civic amenities, publicly provided utilities, public education and health law & order and justice have deteriorated, in some places beyond belief. What one had heard about law & order in Bihar for several decades and began hearing about UP during the last decade, can strike even in the capital and its suburbs. Kidnapping in Ghaziabad, police extortion in the heart of Delhi (a beat constable asking a small scale factory owner for ‘hafta,’ backed by the threat of overnight theft of materials lying in his premises). Some years ago, the secretary (food) of one State govt. admitted in a meeting with IAS peers that they were not competent to procure excess production or deliver food to the starving. Hearing this from an inheritor of the ‘steel frame of India,’ was a shock. Similarly, the chief minister of one notorious State confessed that the existing State machinery could not spend money productively and that it would be very happy if development activities could be carried out by anyone else, including the provider of the funds.
The lack of interest and motivation to fulfil the basic functions of government is the fundamental cause. The underlying problem is distorted incentives and the corruption of power. Power corrupts and absolute power corrupts absolutely. As the systems of governance deteriorate under rent seeking and rent creation, the power to do good falls relative to the power to harm. The result is that today, the latter is much greater than the former, so that the rare employee wanting to do good has the dice loaded against him/her. There is an urgent need to strengthen the checks and balances in the political system. Though the framers of our constitution paid a lot of attention to the potential for corruption in the bureaucracy, they made the fatal mistake of assuming that all future elected representatives would be incorruptible and selfless like those who fought for independence. They could not imagine that the judiciary could also be corrupted.
There is an urgent need for electoral reform to reduce the currently overwhelming incentive for political corruption. If the Neta-criminal nexus is not broken a time will come in the not too distant future when it will become virtually impossible to stop the criminalisation of the entire police force. Possible elements of a solution include, (a) State funding of elections through a matching funds approach. (b) Transparent accounting and mandatory auditing of the accounts of political parties that receive State or company funds. (c) Mandatory bar to running for (or holding) any political office by any one against whom criminal charges have been legally framed, (d) Special courts to try politicians/potential candidates against whom such charges have been framed so that those who are the object of motivated/false charges can be tried and cleared quickly. Penalties could also be prescribed against those who wilfully make false charges.
The police force has over time become an important instrument of political power and manipulation. The police are therefore no longer an independent instrument for enforcing and upholding the rule of law and for providing personal security to all its citizens. The misuse of police by the political masters for personal ends as well as the use by the police of state power vested in them, for their own personal ends, is not merely a theoretical possibility but a frightening reality. This enormous power of the police to do harm must be checked before it becomes uncontrollable.
A number of commissions from the Dharam Vira commission to the Law Commission have suggested the creation of a buffer between the political bosses and the day-to-day operation of the police. One approach is to set up an autonomous police commission in each state along with open and transparent process for appointing the senior officers of the commission. There is also need for an independent public prosecutor whose job is to take cognisance of, oversee investigation of and prosecute major crimes (e.g. murder, armed robbery/dacoity, kidnapping, rape, police crimes). To ensure accountability to the public, which has become the object of police harassment, each police commission & public prosecutor would be accountable to an oversight committee of representatives from all walks of life (including the administration & judiciary). This would ensure that the police themselves obey the law and the law-breakers among them are given exemplary punishment.
Reform of the judiciary could similarly involve a National Legal commission to provide oversight over the legal system and ensure the neutrality and probity of judges at different levels.
We cannot afford to keep waiting for a consensus among all political parties (including those with 20% criminals). Let not the best be the enemy of the good. The two national parties and their non-criminal allies should come to an agreement and start the process of reforms.

No comments: