The focus on public institutions

The two recent orders of the Supreme Court, the first in July 2013 that disqualified members of Parliament and State Legislatures if convicted for a crime for two years or more and, the second, of September 27, 2013, which directed the Election Commission to provide a ‘None Of The Above’ (NOTA) option for voters, have a direct bearing on the growing significance of public institutions in India. The Government of India attempted to whittle down the first order by proposing an ordinance and justifying the measure that punishment meted out by a lower court need not be upheld on appeal, and a person cannot be punished unless proven guilty. While the second order has not invoked similar resistance, the government and political parties are deeply wary of any further moves by the Court to regulate institutions and processes related to elections. This is illustrated by the case that almost all major political parties rallied against the court order to bring them under the provisions of Right to Information (RTI).

Articulate public opinion in India has not been well disposed to government moves that aimed to take the sting out of these court orders through legislative enactments. The irony is that political parties, which are intent on guarding their respective turfs from the encroachment of other institutions, have not remained immune to this public mood. This is clear from the way the BJP, the main opposition party, expressed its opposition to the proposed ordinance on disqualification and the abrasive move by Rahul Gandhi, the Vice President of the ruling Congress party, to scuttle a proposal of his own government and eventually succeeding to scrap the proposed measure.

While all kind of motives and motivations are read into these moves, what is undeniable is the growing public interest in the sanity of public institutions and rectitude of political processes in the last couple of years. Such an interest is reflected in the sustained popular concern with regard to corruption in public life. There is a growing apprehension that corruption and criminality are undermining institutions assiduously built over the years and any attempt to compromise with them is likely to affect public authority deleteriously.

In this context a set of different questions are raised to public authority vis-à-vis its familiar modes of justifications for public action: What if an accused legislator charged of an offence escaped the net of punishment by appealing to the very rule of law and due process? Can such a legislator at the same time be seen as committed to the public good? What if the voter does not find any of the candidates in his constituency creditable to be his representative, or further still, finds all of them morally reprehensible? What if political parties violate the public trust placed in them by proposing candidates and measures which fundamentally violate this trust? These concerns are likely to subject public institutions to sustained interrogation in the foreseeable future.

The political sensitivity these questions highlight reflects an awareness that the right kind of institutions is a prior condition for safeguarding not merely rule of law and rights of citizens, but also in formulating public policy itself. This also explains the congruence between the Court and public opinion in this regard. This focus on public institutions is unprecedented in India while institutions of civil society, such as business, media, associations, and religious bodies have hogged the limelight hitherto. It seems paradoxical in an era when liberalization is touted as a solution to many of our ailments!

Undoubtedly, this valorization of public institutions is a highly welcome development, and cannot be simply brushed aside as the over-rated zeal of the urban middle class. Personalization of institutions and making them subserve partisan ends has bedevilled India’s public institutions for long. It has taken several forms: personality cults, populism, ‘virtuosity’ and awe of political families, and deference to pedigree. The appropriation of power through such devices and its deployment to regulate public life reaches down to every nook and corner of our polity, to urban shanties and rural hamlets.

This is particularly so in a context where government wields enormous power to determine the choices before the citizen community, and public values such as secularism, fairness and common good evoke feeble deference and their safeguarding devolves on public institutions. In recent years by positivising several rights-based measures, be it with regard to employment, education, health, or housing this power has been extended to new social clusters. A phalanx of new institutions has arisen to direct and implement these measures.

The limits and reach of this new found zeal for public institutions, endorsed by the Court itself, found an assertive statement initially in the Anna Hazare movement and led to a vociferous clamour for public accountability. But a little caution regarding the march of this public spirit may not be out of place. Eventually, the probity of public institutions should lie within the processes of their reproduction. An expansive move by the Court in this direction may prove to be an obstacle to the self-corrective measures that public institutions have to take for themselves.

The Court, too, may not venture into issues of accountability of several other institutions which are deeply bound with public good such as the officialdom, the investigative agencies and, above all, itself. There has been a significant body of literature to suggest that the lower echelons of the judiciary in India are deeply inefficient and mired in corruption, as is the bureaucracy. Such large-scale interventions into the probity of institutions, while ensuring a degree of efficiency in their functioning, cannot be realistically pursued by the Court. Eventually the health and probity of public institutions rests on the extent to which Parliament is going to reflect and give shape to this new-found political sensitivity. The Court and public opinion may prove allies rather than adversaries in this endeavour.

The author teaches political science at Jawaharlal Nehru University