There can be no dispute about the justified public outrage over the recent murder of a young student from the Northeast. It is the general political reaction that is questionable. It has been decided to frame a new law against racism. Earlier a new law against communal violence was being framed. After innumerable corruption cases the demand for a new Lokpal law has grown and captured the public’s imagination. Each time a dastardly crime occurs the political class wrings its hands and decides to frame a new law. By doing so does it address the problem or merely salvages its conscience at very little cost? Does it attempt genuine political reform or merely hoodwinks public opinion with an irrelevant and empty gesture?
Take the racist attacks against Northeast migrants. Are there not laws to prevent and punish assault and molestation committed against any citizen regardless of the victim’s ethnicity, place of origin, religion or caste? If the same crime is committed against a victim not belonging to the Northeast must the punishment be different? There is apart from criminal misconduct also the bias and hatred that reflects racist attitude. But is there not already a law to prevent such hatred and bias?
Section 153A of the penal code states:
“Whoever (a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, or (b) commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquility, . . . shall be punished with imprisonment which may extend to three years, or with fine, or with both.”
Why, then, can prevalent law not be administered to punish the guilty? Why new laws should be enacted to deal with racist or communal crimes? For the same reason that the whole nation is being hoodwinked to believe that a new Jan Lokpal is required to curb corruption despite the Central Vigilance Commission (CVC) which can identify corruption, a Comptroller Auditor General (CAG) which can monitor public spending and a Central Bureau of Investigation (CBI) which can investigate all corruption cases. The creation of the Lokpal will encroach on the responsibilities and powers of the prevalent institutions to make confusion worse confounded.
The reason new laws and new institutions are created at the drop of a hat is because it helps the political class to deceive itself and the whole nation with the fiction that prevalent laws are inadequate. In fact prevalent laws and institutions are more than adequate to prevent crime and corruption. The failure lies in not implementing laws and in institutions not exercising responsibility to discharge duty. That is the basic cause of our flawed governance. That is what our political class refuses to address.
One current example should suffice.
Recently in parliament a member in the midst of stormy and unpleasant ruckus used a pepper spray against opponents in the scuffle. A pepper spray is a weapon. No weapons are allowed inside parliament. Using this weapon is an act of violence and in the current incident amounted to a criminal act. Consider the reactions. The Speaker deplored the incident and said it was a blot on the reputation of parliament. The Prime Minister was ashamed of the incident. The President considered the incident a blow against democracy. Suggestions have been made that the members should be frisked before entering parliament. The guilty MP was first defiant but later mildly contrite. There are exhortations by several leaders that there should be decorum in parliament.
What astounding reactions! Why did the Speaker not immediately expel the member from parliament for life? With the Speaker failing to exercise her powers by doing that, why did not the President dismiss the government to force a fresh general election? Article 75(2) clearly states that all “Ministers shall hold office during the pleasure of the President”. The President in his oath of office is sworn to “preserve, protect and defend” the Constitution and law. Is it lawful for a member to commit a crime inside parliament and remain unpunished?
These steps might be considered very extreme and unrealistic. These steps are indeed far removed from the real situation wherein there is a tolerant and permissive attitude to the violation of all laws. Those happy with realism should learn to live with the status quo and stop complaining about the decline and destruction of our democracy. If a change and reform is desired there is but one single palliative to remedy the situation. The flawed Supreme Court ruling in the Shamsher Singh versus the State of Punjab case in 1974 which described the President, in spite of the explicit powers granted to the office in our written Constitution, as a “constitutional or formal” head simply because India has a system of parliamentary democracy, should be ignored by action from Rashtrapati Bhawan. Apparently the learned Supreme Court Judges who delivered the ruling were ignorant about France also having a parliamentary democracy in which the President is not merely a formal head but wields executive responsibility. If the advice tendered by the Union cabinet violates the President’s oath of office, does the Supreme Court believe that the President should ignore his solemn oath and abide by the advice? If not, in what manner may the President be described as a mere titular head?
There is therefore a simple one-point agenda for reform to restore governance and prevent the collapse of democracy in India. It is for the President to exercise his responsibility and ensure that each and every law and procedure in the statute book is followed in letter and in spirit. All corruption and all crime can occur only through the violation of some law. The President should be empowered by an adequate secretariat to discharge this function. Through Governors directly appointed by the President and accountable to Rashtrapati Bhawan the same responsibility must be discharged in each state. All the other executive powers given to the President in our Constitution may be utilized in an advisory capacity. But the preservation and protection of all law must be actively discharged by the President who is an office bearer with the widest electoral mandate insulated from the vagaries and fluctuations of day to day politics. Dump the Lokpal! Beside corruption other crime needs to be curbed. Revive the Presidency by following the written provisions of our Constitution. Let the President become the Super Lokpal curbing all crime.