(This was first published in the September 16-30 issue of the Governance Now magazine. Given the way the debate on the Lokpal bill ended in the Rajya Sabha last night, we thought reviving this was timely.)

"The parliament has spoken. The will of the parliament is the will of the people,” so said a visibly relieved prime minister in the evening on Saturday, August 27, after both houses of parliament had indicated the “sense of the house”, by thumping of the desk, on three conditions set by Anna Hazare for ending his fast which would have entered the 13th day the next morning.

The technicality of indicating a “sense of the house” being significantly different from “passing a resolution” is not to be missed because Anna Hazare had to fast an extra day while the parliamentarians sorted this issue out.

The visible relief of the prime minister was followed by an almost uncontrolled outpouring of gratitude and encomiums from a variety of sources, led by the media. It seemed that parliament speaking for the people or reflecting the people’s will is like a rare celestial event.

The questions that arise are: Should it take a 74-year old man to fast for 12 days to get parliament to reflect the will of the people? Should parliament reflect the will of the people only (a) once in a while, and (b) under the shadow of a citizen dying in full public view and the responsibility of that falling on parliament?

The answers to both the questions are obviously “no” but the questions need to be raised simply because they reflect the reality of the nation for the last couple of decades.

Because the eternal optimists would immediately say that this is a distorted perception of reality since we have a vibrant democracy which is a shining example for the rest of the world, let us take a couple of examples, one well known and one not so.

What happened to CVC
The well known example is of the Central Vigilance Commission. The CVC was set up by the government in February 1964 on the recommendations of the Santhanam committee, formally known as the Committee on Prevention of Corruption, headed by K Santhanam, to advise and guide central government agencies in the field of vigilance. The Santhanam committee was set up by Lal Bahadur Shastri in 1963 when he was the minister for home affairs and Jawaharlal Nehru was the prime minister.

The CVC came into prominence as a result of the supreme court judgment in what is popularly known as the Jain Hawala case and is formally called the Vineet Narain & others vs Union of India & another case. The case was filed in 1993 (Case No.340-43 of 1993), and the judgment was delivered on December 18, 1997 (1998: 1 SCC 22).

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The importance of the judgment for the CVC is that the supreme court directed that “The CVC shall be given statutory status”. To get a sense of the possible real impact of this direction, it is important to understand the background of the case and its proceedings. That can be best illustrated (though not really captured in full) by reproducing two sentences from the opening paragraph of the judgment:

“These writ petitions under Article 32 of the constitution of India brought in public interest, to begin with, did not appear to have the potential of escalating to the dimensions they reached or to give rise to several issues of considerable significance to the implementation of rule of law, which they have, during their progress. They began as yet another complaint of inertia by the Central Bureau of Investigation (CBI) in matters where the accusation made was against high dignitaries. … However, as the case progressed, it required innovation of a procedure within the constitutional scheme of judicial review to permit intervention by the court to find a solution to the problem. This case has developed a procedure within the discipline of law for the conduct of such a proceeding in similar situation. It has also generated awareness of the need of probity in public life and provided mode of enforcement of accountability in public life.”

Following the above logic, the judgment (written by the then Chief Justice of India, Justice J S Verma, who headed the bench which had Justices S P Bharucha and S C Sen as members) did not confine itself to the direction of giving the CVC a statutory status, but went on to describe, in some detail, what this status actually meant and also detailed some of the actions needed to make that happen. To that end, the judgment went on to list 15 steps that needed to be taken to make the statutory status a reality.

What did our parliament, of which the political executive is a part, do in response to the above judgment?

It enacted a new law called the Central Vigilance Commission Act, 2003 (No. 45 of 2003). The year, 2003, needs to be noted. The Act is dated Friday, September 12, 2003, the date of the judgment being December 18, 1997. It took parliament, led by the government, almost six years to frame and pass this law, with the detailed guidelines being already available from no less a legal authority than the highest court in the land!
And what did this law contain? While it gave flesh and blood to the skeleton that the judgment provided (though what the court provided was certainly more than a skeleton, it also provided the spirit that was to be the underlying basis of the law), made seemingly minor but subtle changes even to the “letter of the law” that the judgment provided. Sample the following, picked almost, but not completely, at random:

Para I(3) of the directions by the supreme court reads as follows:

“The CVC shall be responsible for the efficient functioning of the CBI. While government shall remain answerable for the CBI’s functioning, to introduce visible objectivity in the mechanism to be established for over-viewing the CBI’s working, the CVC shall be entrusted with the responsibility of superintendence over the CBI’s functioning. The CBI shall report to the CVC about cases taken up by it for investigation; progress of investigations; cases in which chargesheets are filed and their progress. The CVC shall review the progress of all cases moved by the CBI for sanction of prosecution of public servants which are pending with competent authorities, specially those in which sanction has been delayed or refused” (Emphasis supplied).

Compare the emphasised sentence above with Section 8(1)(f) of the Act.

“8 (1) The functions and powers of the Commission shall be to –

...

(f) review the progress of applications pending with the competent authorities for sanction of prosecution under the Prevention of Corruption Act, 1988;”
What happened to the special attention that the judgment said should be paid to those applications “in which sanction has been delayed or refused”? One possible explanation is that while the supreme court recognised the existence of instances where applications for sanction for prosecution may be “delayed or refused”, the Act, and by reason of having passed the bill, parliament, seems to not realise that such cases of delay or refusal of permission for prosecution, might even exist. That seems to be the only rational explanation because to say that the government omitted this deliberately and parliament approved of it knowingly might be construed as disrespect to these hallowed institutions.

How the institution of the CVC has been treated in practice is much too well known to need elaboration. The appointment of P J Thomas as CV commissioner and its aftermath in the supreme court is, hopefully, too recent to be obliterated from public memory.

Benami transactions

The second example is of what are called benami transactions. These got recognised in the legal system in the country as far back as 1882 when the courts took cognisance of them under Sections 81 and 82 of the Indian Trusts Act. Parliament, after Independence, acted in 1976 and barred all suits in relation to benami properties. Subsequently, benami transactions were totally prohibited, indulging in them was made an offence, and all suits, claims, actions based on benami transactions were prohibited. But they just refused to go away! Parliament acted again and repealed Section 82 of Indian Trusts Act and Section 281A of the Income Tax Act along with consequential repeal.

Around this time the Law Commission of India submitted its 57th report on all aspects of the benami transactions and made recommendations. The president, obviously at the request of the cabinet, promulgated the Benami Transaction (Prohibition of the Right to Recover Property) Ordinance, 1988, based on the recommendations of the Law Commission. When the ordinance did not have much effect, the Law Commission was requested to look at the issue again. Thus came the 130th report of the Law Commission titled ‘Benami Transactions – a Continuum’. These recommendations of the Law Commission formed the basis of what came to be called the Benami Transactions (Prohibition) Act, 1988. 

The Act has not had any effect whatsoever because even after 23 years of its enactment, the rules for carrying out the purposes of this Act have still not been framed. Now, we have a new and possibly “improved” Benami Transactions (Prohibition) Bill, 2011, that was introduced in parliament on August 18, 2011. It is perfectly justified to say that this is a laudable initiative but what will happen to it in time to come (Will it be passed? When? If passed, will it be implemented?) is not really known. Wasn’t the Lokpal bill first introduced 43 years ago?

The period since 1988 till today is important to reflect on. There was a parliament then, and there is a parliament now. It is true that the onus of framing rules for carrying out the purposes of an Act is on the government of the day. Can we thus blame the governments of various hues that have come and gone since 1988 for not implementing the Act? Is it not one of the functions of parliament to oversee the functioning of the government?

What has happened in the last 20-30 years? It is sad and tragic to say but parliament has stopped speaking for the people. And why has that happened? Because the people’s representatives do not represent the people but they represent their political parties. The political parties have stopped performing their standard function of being mediators between the government of the day and the people. Even the ruling party is, under normal political functioning, supposed to ensure that its own government, or a government led by it, stays on track with people’s aspirations. All that all our political parties seem to be doing is to try to win elections, at any cost and in any way possible. And why is that? Because their own internal functioning is not democratic. But that is another story.