AN article titled ‘In Vinod We Trust’ published by The Economist on 11 August 2012, concluded with the thought that institutions, rather than crowds, matter more in the business of securing accountability. In the midst of muckraking against the CAG by Congressmen, this pat on the back by an influential journal was timely and much appreciated. One wonders, however, what those present in the crowds at Tahrir Square in Egypt who dislodged a corrupt Hosni Mubarak or the Greeks gathered at Syntagma Square protesting legislation of austerity cuts might say. When even liberals of repute mistake a mobilization of people oriented to a specific purpose for a headless crowd and repose greater trust in the institution of CAG than, by omission, in Parliament, it is time to sit up and take note.

The political fallout of the reports submitted by the CAG of India since November 2010 has certainly exposed the inadequacy of our parliamentary system to secure the accountability of ministers and senior officials. No doubt, the CAG’s report on undue favours shown in allocation of licenses for 2G telecom spectrum, tabled on 16 November 2010, was relied on by the Supreme Court as reliable evidence to apprehend ministers, a secretary to government and two executives of one of India’s largest corporations. Public interest was also well-served when the policy advocated by the CAG received judicial endorsement and government accepted it to successfully auction 3G, which helped immensely in reducing the bloated fiscal deficit. However, the parliamentary system of financial accountability failed miserably because the Public Accounts Committee which deliberated on the CAG’s report on the allocation of 2G, fell apart on partisan lines and its recommendations were rejected by the Speaker; not just that, the working of PAC was superscribed by the constitution of another Joint Parliamentary Committee where the ruling party installed its own chairman!

In parallel, on the streets, public anger rose to a pitch due to the ham-handed manner in which Anna Hazare’s first few steps for mobilization of common people to fight corruption in high places was treated by government. Even as the government played fast and loose in negotiating a draft of the Lokpal Bill with Team Anna, and tried to discredit a ‘we-the-people’ agitation as being an alarming mobocracy, Anna succeeded in reminding parliamentarians that they were not Supreme Beings either. Parliament had to bow before this public weal and communicated a placatory ‘Sense of the House’ resolution; but it did not mend its ways. The government introduced a Lokpal and Lokayukta Bill, 2011 in the Lok Sabha without any assurance about the constitutionality¹ of the move, which patently intruded on the realm of state legislatures. As expected, it was blocked by the Council of States (Rajya Sabha). Of late, newspapers have reported that the government plans on introducing appropriate amendments in the winter session beginning 22 November 2012.

The dust had barely settled on the retreat of Parliament when the CAG raised the lament yet again in August 2012 with reports on allocation of coal blocks and favours shown to a concessionaire to build the Delhi airport. This time, it indicated involvement of the phlegmatic prime minister himself. The opposition blocked all work for the duration of the entire monsoon session, demanding first a statement and then the resignation of the PM. As the media added investigative stories on wanton cronyism, to the brazen irregularities in coal block allocations noted by the CAG, the impropriety of the PM in presiding over it all became increasingly apparent. No charges were formally levelled but an anticipatory defence statement (disguised as a motion on a matter of public importance) was tabled by him in Parliament. To be fair, we have to await the scrutiny of the CAG’s report by the PAC; but will it be allowed to function unhindered this time?

 

Shamelessly, a reprehensible political attack was mounted by the Congress party to discredit the institution of the CAG. Unable to controvert the facts narrated in his reports or bring a substantive motion against him, they questioned his mandate to comment on policy matters. Members of Team Anna regrouped, but were unable to gather crowds a second time, and fractured. Anna refused to change his vocation from social service to politics while Arvind Kejriwal plunged in, leading the move for building a new political party to fight corruption. With his courageous sit-ins and revealing disclosures of frauds committed by senior Congress and BJP leaders alike, assiduously reported by all TV news channels, Arvind Kejriwal has become a household name.

But wasn’t Jaspal Singh Bhatti, the sardar of satire, also a household name two decades ago? He used to capture workaday corruption at ‘low’ government offices in his uproarious TV serial, ‘Flop Show’. The difference is that he portrayed it as a middle class social malaise, while Kejriwal regards the purge of parliamentarians as a point of departure for cleaning up the political system. Will the current discontent about corruption in places high and low, generate as fruitful a national debate on responsible government as it did in UK after the impeachment of Warren Hastings failed in the British Parliament in the late 18th century? In our headless dash for growth, will we as citizens and state be able to foreground accountability in the process of governing ourselves over the next ten years?

 

Cynicism about such a possibility is rife, especially among the elite, which naturally tends to opt for a more stable rather than a more responsible government. Very few parliamentarians and officials are even aware that the Constituent Assembly consciously opted for the opposite – greater responsibility of the executive even at the cost of stability. It is worthwhile to first correct our fuzzy notions about the separation of powers in our Constitution to appreciate the precise manner in which the Constitution views the executive.

While Article 53 vests the executive power of the Union exclusively with the President, he is bound to act on the advice of the Council of Ministers; but that does not reduce a parliamentary system of government into a presidential form. On 4 November 1948, while introducing the Draft Constitution, B. R. Ambedkar made a statement on the President in relation to the Council of Ministers and the general character of the executive:

‘The presidential system of America is based upon the separation of the executive and the legislature, so that the President and his Secretaries cannot be members of the Congress. The Draft Constitution does not recognize this doctrine. The ministers under the Indian Union are members of Parliament. Only members of Parliament can become ministers. Ministers have the same rights as other members of Parliament… Under the non-Parliamentary system, such as the one that exists in USA, the assessment of the responsibility of the executive is periodic. It takes place once in two years. It is done by the electorate. In England, where the Parliamentary system prevails, the assessment of responsibility of the executive is both daily and periodic. The daily assessment is done by members of Parliament through questions, resolutions, no-confidence motions, adjournment motions and debates on Addresses. Periodic assessment is done by the electorate which may take place every five years or earlier. The daily assessment system is, it is felt, far more effective than the periodic assessment and far more necessary in a country like India. The Draft Constitution, in recommending the Parliamentary system of Government, has preferred more responsibility to more stability.’²

 

That is what was finally adopted in 1949. In our scheme of things, separation of powers applies only to the judiciary. In fact, the executive power of the President is the residue of functions of government after the legislative and judicial powers have been discharged.³ The gladiatorial style of presidential elections in US, carrying its burden of public inquisitions, may be spectacular, but it delivers stability, though little responsibility. Americans opted in November 2012 for four more years of stability and re-elected a man who had promised, but failed to get them jobs.

 

This difference is important because mistaken elitist notions about an exclusive domain of the Council of Ministers to make policy also abound in India. It came to the fore recently in a minister’s allergic reaction (Kapil Sibal, ‘Can’t Have Multiple Executives’, Times of India, 15 September 2012) to any participation of the CAG and Supreme Court in what he imagined to be the exclusive domain of the Council of Ministers, viz. to determine ‘policies’. Along with appreciating that the executive is not separated but dissolves into the legislature, it helps to ask: what, precisely, are policies?

The term ‘policy’ implies some long-term purpose in a broad subject field (e.g. nationalization or privatization of coal mining), not a series of ad hoc decisions. Sometimes, however, we conceive of policy not so much as actively purpose-oriented but rather as a fairly cohesive set of responses to a problem that has arisen (e.g. competitive bidding for any procurement). In the sphere of government activities, there are laws, rules, plans, programmes and projects, each of these in succession being a little more short-term, more specific in place and timing than the previous and each successively more executive rather than legislative.

The crucial difference, however, is that laws (including rules/by-laws/regulations made by delegated authority of laws) are imperative directions embodied in an Act which in the form of a Bill have been regularly debated and passed by duly constituted legislatures in the prescribed manner and assented to by the President and are binding on every citizen, which the courts charged with the duty to ensure respect for law are bound to enforce.

In a parliamentary system the Council of Ministers, by themselves, can only decide on matters under the delegated authority of policies that are law, in limited fields of their application like directives, plans, programmes, projects. For example, FDI in multi-brand retail has been allowed recently by the Council of Ministers through the Foreign Investment Promotion Board, under authority delegated by company law and of the law governing the RBI. They can also introduce bills to make laws, and so can private members. Besides, a minister can only suggest and introduce a bill; it is the House that passes it. Not a single rupee can be levied as a tax or spent on anything without the approval of the legislature.

 

The existing judgements of courts and the opinions of constitutional authorities are normally taken into account by the Council of Ministers and by private members while framing or formulating policies as bills. While only Parliament can decide on policy at the level of a law, each and every citizen has the right, and even the duty, to influence it. Therefore, the CAG can and should influence policy, as he has been doing for long years since the PAC of the second Lok Sabha requested him to undertake performance audit and especially when the systems-based audit of revenues began in the 1960s which, on the recommendations of the PAC, helped the Ministry of Finance to frame amendments to various acts, rules and procedures. Procedures exist for committees of Parliament to solicit the views of individual citizens and ‘publics’ in the process of law making or formulating rules. Interpenetration of civil society and the state has been built into the system.

Dr S. Radhakrishnan, then serving as Vice President of India said on 2 June 1954: ‘The Audit Department is obliged to say things which are embarrassing to the Government but it is the duty of its officers, on account of their greater loyalty to the country, to act as a check even on the Government of the country.’ The CAG’s independence in auditorial functions was further spelt out by Section 23 of CAG’s (duties, powers and conditions of service) Act, 1971 which authorised the CAG to determine the scope and extent of audit and notify regulations to govern the same. And indeed, as a former cabinet secretary, T.S.R. Subramaniam put it recently,⁴ the CAG has emerged as a bulwark and not just a necessary evil.

 

A few institutional reforms can help Parliament to pull up its socks. The present system of scrutiny of the budget by the departmentally related standing committees since 1993 is not sufficient because they examine only the demand for grants, not the borrowing by government. Fiscal deficits are of paramount concern in most countries today. The functioning of the Estimates Committee which right since 1950 used to report on the budget prior to its being put to vote in the House, was dismembered in 1993. It is ironic that while a Fiscal Responsibility and Budget Management Act was enacted in 2003, we have no parliamentary committee for its oversight. The Estimates Committee should therefore be rejuvenated.

The reasons why the Public Accounts Committee has remained ineffectual ever since 1950 have scarcely ever been examined in depth. From its inception in 1921 till 1950, it served as a means of executive control over the legislatures under the GOI Act, 1919 and its scheme of diarchy. The finance member in the Viceroy’s Council used to be its chairman. It examined only the devolved subjects, not matters about the army or navy. Members were appointed for a five-year term so that they could acquire the necessary skills and knowledge. It enjoyed executive powers to levy surcharges and impose disallowance of certain expenditures. Being part of the executive, it enjoyed power and prestige. When it was converted in 1950 into a fully-fledged parliamentary committee, as a means of parliamentary financial oversight of the Council of Ministers, with members appointed annually, no powers commensurate with its pivotal importance for the Republic were vested in it. There is a strong case for members to be appointed for a five year term. The status of the PAC needs to be bolstered by opening up its proceedings to the media. The plea that in order to be bipartisan its proceedings should remain in-camera not only reeks of tolerance for duplicity among parliamentarians, but is also completely out of sync with the flattened out world we now live in.

 

Second, the triadic functional relationship between administration, audit and PAC cannot be left to be governed by a spirit of ‘mutual appreciation and cooperation’ with which it has hobbled along so far. Speaker Mavalankar, as chairman of PAC in 1956, exhorted all three to work towards the single purpose of public service; he could not have imagined how soon the common purpose of public service would fade out. Instead of being left to function on the basis of the failing memories of pundits in the secretariats of all three, with everybody else without a clue on the subject, the mechanics of the functional relationship – from budgeting to action taken on PAC reports – needs to be codified into a public financial management law. The rules of procedure of the PAC should be laid down instead of being left to the chairman to decide on each occasion.

Alongside this, the separate act laying down CAG’s duties and powers needs to be amended to allow for greater facility and access to records in examining public-private partnerships as well as to audit the transactions of banks and insurance companies. Globally, in the course of the last century, the audit profession strayed away from its initial purpose which was the detection of fraud, and moved into providing only an assurance about the systems for accountability being in place. Only since 2006 has it been revisiting its responsibility to detect fraud and help stakeholders fight corruption. This reorientation needs legislative support but the current political climate does not appear conducive to make these changes.

 

A recent riposte by government, saying that the suggestion for the CAG to be reconstituted as a multi-member body is under active consideration, deserves little attention because there is a yawning difference between constitutional provisions for an Election Commission, Art 324 (2) and that for a CAG (Art 148). The National Commission for Review of the Working of the Constitution headed by Justice Venkatachalliah, which reported in 2002, as well as the government, dropped the multi-member idea after V.K. Shunglu, as the then CAG, conveyed his reasoned opinion against such a proposal. A multi-member body obtains only in countries where audit functions as a chamber with powers of the judiciary, like in France, Norway or Sweden. It makes no sense in the Commonwealth parliamentary system of financial control. The reasons why he expressed the opposite opinion in a postscript, as a consultant to the PMO in 2011 for investigating irregularities in preparations for the Commonwealth Games, are anybody’s guess.

With parliamentary committees in disarray, and the absence of any credible system of institutional accountability leading to successful prosecution (not just investigation of cases), direct action by citizen’s groups to demand prosecutions has come to the fore. An aspiring middle class is challenging the elite capture of the government in a manner it has never been challenged before. An entrepreneurial spirit of start-ups unleashed by the economic reforms of 1991, coupled with the RTI Act 2005 and the power of the internet, described aptly as the network of networks, has empowered the middle classes and the poor in India enormously to engage with administration. That is why Arvind Kejriwal’s exposes resonate in the hearts of common Indians but sound like a reign of terror and the working of a guillotine to the ears of a small but well-ensconced section of people who, crafty for comfort, deploy their received knowledge with stentorian burps of comprehension in the portals of power but appear out of their depths when questioned in public.

 

In all this thrill of giant killing, however, we might lose sight of the fact that transparency only in public administration has been initiated by the RTI Act. Transparency refers to a process whereby a greater correspondence is generated between the experience and memories of people and the records of the state. Though the machinery of state is a separate entity, socially, the state encompasses all of us, corporates and craftsmen alike. The controversy over a cartoon by the legendary Shankar carried by a school textbook vivified the problematic of social transparency in India.

Some interpreted the sixty year old cartoon as derisive of Ambedkar because a mighty fighter against untouchability was cast in it as sitting on a snail with Nehru’s whip egging him on. Others noticed the snail as well and saw in it a faithful depiction of the long process in the making of India’s Constitution and the overbearing personality of Nehru. The politics of accommodation in Parliament of India 2011 led to its quiet removal from the official school textbook. Such erasures are commonplace for a student of history. The manner in which we as a polity resolved the emergent issue last year may have been astute for the moment, but it dragged us back to the centuries-old method of living with a conspiracy of silence over divided perceptions in society. We might have done better by choosing to agonize over it, just like Ambedkar and Nehru did over the framing of the Constitution, to construct a new world of transparency rather than political correctness.

 

While we as citizens demand transparency from government, we continue to jealously guard the secrecy of our ballot. We demand little transparency from each other about our political acts. The secret ballot was invented to protect weaker sections against intimidation during elections. It was a compromise justified at a juncture in our history. Today, voting en bloc after holding political opportunism close to their chests till the last moment has become the stock-in-trade of casteist politics. It vitiates accountability to each other for our electoral choices which is so critical for the democratic process.

Enthused by prospects of producing new knowledge and technologies, a youthful India is not likely to accept academic obfuscation about the nature of trust. One paternalistic view suggests that the assertion of rights has gone to such giddy limits as to create a situation of mistrust among partners and colleagues, rendering working relations in any institution impossible. This view suffers from the fallacy of taking ascribed status and distinctions as a basis of trust. If women are questioning men in their families and vice versa, only their status is crumbling, giving rise to home truths and facilitating a new understanding of the self and others. If equality in relationships is valued, it has to be construed in a constantly interactive matrix. However painful for those who are questioned, day to day accountability is the only means of building trust in a society that is aspiring to establish equality.

 

Those who shrink from crowds need to be reminded that historically, public assembly lies at the heart of parliamentary democracy. George Rudé’s classic study of the role and force of sans-culottes in the French Revolution⁵ instructs us to distinguish between mobs of the kind that run riot at the news of an assassination, and people who turn up with specific and reasonable demands in response to a mobilization. In Rudé’s study, ‘Those who took to the streets were ordinary, sober citizens, not half-crazed animals, not criminals.’ Such ‘crowds’ forge institutions. Our Constitution was influenced by ‘crowds’ at different stages of the national movement. It was consciously designed to serve as a vehicle of social change. The fact that there is no singular, but in fact several ‘publics’, was clearly recognized. We have blundered in working the Constitution because those who came to rule the roost thought patronizingly that remote controlled schemes to create equality would lead to greater fraternity. The realization that the causal relationship works the other way – fraternity leads to greater equality and not the other way round – has taken a long time resurfacing.

Fraternity as the point of departure to build equality was demonstrated by MKSS (Mazdoor Kisan Shakti Sangathan) in its movement for social audit practices to probe corruption in anti-poverty programmes, electoral rolls, BPL (Below Poverty Line) lists and ration shops over two decades. Skills were acquired and invented for communicative action to organize public reasoning by ‘crowds’, and negotiate rights, with local and not so local authorities. A series of such struggles all over India have brought us to an exciting watershed in our political history where the meaning of political representation has been prised open. A deliberative democracy is in the making.

 

Media has been quick to discern the shift in public weal and is enabling people from all walks of life to pitch in. The youthful exuberance of Kejriwal’s team, which aspires to build a political party, is admirable. Hopefully, they will find ways not only to echo public sentiment but also, like MKSS, to strategize under the open gaze of people, not in a closeted fashion. They will need to remember that trust can be reposed only as an integral outcome of strategic, moral and ethical reasons, not for solely one or the other reason. Building trust on moral superiority alone, assumed or otherwise, can be tiring for people who want food, jobs, land and accountability. Communicative action to draw out ‘publics’ for participation in a deliberative democracy, where FIRs (First Information Reports) and CAG’s reports are not swept under the carpet, has opened up possibilities for a social movement against corruption, high and low. If the ‘huddled masses’ did not arrive at American shores, the Statue of Liberty would have remained a mute spectator to their drowning.

 

Footnotes:

1. Refer proceedings of the Lok Sabha, 22 December 2011, to note the cavalier statement by government: ‘Let the judiciary decide whether it will be constitutionally valid or not.’

2. See H.R. Khanna, Judge, SC, (retd), Making of India’s Constitution. Eastern Book Company (reprinted 2009). Excerpt from Ambedkar quoted at pages 97-100.

3. See P.M. Bakshi, The Constitution of India, Notes on Art. 53, pg. 111, Universal Law Company (11th edition), which cites several SC judgements.

4. T.S.R. Subramaniam, ‘CAG: A Necessary Evil or a Bulwark?’ Economic and Political Weekly, 27 October 2012.

5. George Rudé, The Crowd in History: A Study of Popular Disturbances in France and England, 1730-1848, first published in 1964.