First it was corruption. Now it is crime. It was a particularly inhuman crime of rape that broke the back of Indian tolerance.
As far back as April 14, 2011 this writer posed the question: “Has India’s jasmine moment arrived?” After the revolutions that swept across several nations to cause the Arab Spring one thought that India too was ripe for change. The hope was premature then. Is it relevant now?
There have been innumerable cases of rape and other crimes as horrendous as what happened recently to the 23 year old girl who battles for her life in a Delhi hospital. But this case was the last straw. Something snapped in the Indian consciousness. Educated Indians, students, women and activists are tumbling out in the streets across the nation to protest. They demand justice. They want change.
However they seem confused about the kind of change required.
The solution exists in our Constitution that was distorted from day one.
For the most part there is demand for harsher laws and the introduction of capital punishment for rape. People want the rapists to be hanged. Others caution against capital punishment. They say that civilized states should not kill criminals but reform them. This approach is widely shared in western nations. Many Indians influenced by Gandhi’s ideals of non-violence agree.
Gandhi himself was influenced by Christian values that teach non-violence and turning the other cheek, by fighting hatred with love and anger with forgiveness. One does not want to enter into the pros and cons of the debate on capital punishment. Most of this writer’s friends believe that it is politically correct to oppose capital punishment. This seems to go against Hindu teaching.
Lord Krishna in the Bhagavad-Gita did not extol non-violence as an absolute virtue. Instead he taught dispassionate action in the pursuit of Dharma, or duty, by eschewing lust, anger, greed, attachment and ego. Contrary to popular perception Islam taught the same. Recall how Hazrat Ali, the warrior saint, refused to kill in battle an opponent pinned to the ground that spat on him. Ali refused to kill because his opponent’s action had angered him and precluded dispassionate response.
Spiritual values unite inspirers of religious movements.
It is priests that divide communities.
However, whatever the kind of laws that need to be introduced the truth is that the most urgent reform required will come about not through introducing new and harsher laws but by ensuring that existing laws are implemented and the courts deliver speedy justice to those charged. Existing laws are for the most part adequate. The implementation of law is dreadfully inadequate. Courts clogged with untried cases take decades to deliver judgment. Fast track courts for dealing with just rape cases will not suffice. The nation needs speedy time bound justice across the board for all legal disputes. It is achievable through radical judicial reform.
This is not the time and place to explain how. The underpaid, badly trained police force recruited through corruption quite often commits crime instead of preventing it. Protesters in Arab nations have an obvious goal to aspire for. They seek democracy because they have none. But what goal might India’s revolutionaries seek?
India has democracy but lacks justice and governance. India needs reform. The system needs to be revamped. That will not happen by creating new laws. It will come through creating a new system. That new system will not be created by introducing a new Constitution. It will be created by respecting the existing Constitution.
The confusion of seeking new law instead of focusing initially on the failure to implement existing law became glaringly evident during Anna Hazare’s movement for enacting the Jan Lokpal. This writer had pointed out then that without clarity about who would appoint the proposed Lokpal and to whom will that office be accountable the entire movement was farcical. There already exists the Central Vigilance Commission CVC) to address corruption, the Comptroller Auditor-General (CAG) to monitor official expenditure and the Central Bureau of Investigation (CBI) to probe corruption. Why would the Lokpal deliver satisfactory results if all these institutions could not? As predicted at the start of the agitation demanding a Lokpal, the issue is fading into irrelevance.
Similar confusion seems to surround the current crisis. The public is busy protesting in the streets and the government is promising new laws. It intends thereby to defuse public protest. But will it in any significant way solve the problem? Is the government deliberately trying to confuse or is it badly confused?
It has been stated in these columns earlier and I state it again. The solution exists in our Constitution that was distorted from day one. According to it the President is the sole authority, with Governors in all states appointed and accountable solely to him, entrusted with the ultimate responsibility to ensure that law, procedure and Constitution are implemented in letter and spirit. The President is the only official under solemn oath to preserve and protect law and Constitution. If the President discharges this single responsibility all governance would dramatically improve. Corruption, crime and terrorism can occur only when some law or procedure is violated. The observance of all laws is the single panacea for addressing all lapses in governance. If the President, already empowered by the Constitution and under oath to deliver it, were to comply the office would be transformed into a Super Lokpal ensuring good governance in all departments of the administration. This, then, is the prime issue that needs to be addressed. The enactment of new laws can wait.
Need one recall that on September 2, 1953 the late BR Ambedkar was so frustrated with the manner in which the Constitution was being implemented that he told parliament that as far as he was concerned they could trash it.
It should be noted that in our Constitution parliament consists of the two Houses of Parliament and the President. It might also be recalled that on November 4, 1948 in the Constituent Assembly Ambedkar said:
“Under the non-parliamentary system, such as the one that exists in the U.S.A., 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 at the time of the election which may take place every five years or earlier. The daily assessment of responsibility which is not available under the American system is 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 Executive has preferred more responsibility to more stability”.
It should be clear from this statement that Ambedkar opted for the parliamentary system not for eliminating the executive role of the President but to make it more accountable. What Ambedkar envisaged was closest to the French system. By a minor amendment ordinary voters could elect our President.
Our politicians have failed to grasp the obvious systemic reform that would accrue from the President discharging responsibility as laid down in our written Constitution. Perhaps the public unconsciously has recognized this truth. In a departure from the past for the first time protesters in the current rape case crisis converged at Rashtrapati Bhawan instead of focusing only on ministers.
The public is conveying a message. Will President Mukherjee heed it?