Events last week revealed the institutional limitations of the anti-corruption imagination in India. Take three seemingly unrelated examples. India lost the arbitration in the Antrix-Devas deal. This deal was one flashpoint in the nightly TV mobilisation against corruption. The public frenzy led to the cancellation of the deal. India now has to pay the penalty. Second, the Central government has waged open war on the Delhi government. It is using every instrument, from the police to the CBI, to harass Delhi government well beyond any infractions that might warrant a justified response. Finally, there was opposition to a notification under the Lokpal and Lokayukta Act that declared all office bearers, including board members, of NGOs that receive government or foreign funding, to be public servants. This bill was the brainchild of NGOs. Parliament hurriedly passed an amendment, putting in abeyance disclosure norms for public servants. Actual public servants had a wonderful schadenfreude moment at the expense of the anti-corruption movement. And they were right.
These episodes expose fundamental contradictions of the anti-corruption movement. On the one hand, there was the need for political mobilisation against corruption. This required taking a kind of battering ram against a corrupt ancient regime. Its biggest gain was that it placed corruption on the political agenda, exposed the workings of an oppressive plutocracy. But, on the other hand, the overall imagination of this movement was always marked more by what one might call vengeance institutionalism.
This vengeance institutionalism had certain features. First, it was an institutionalism that brooked no nuance. It was embedded in a larger discourse of an “us versus them” opposition that trumped any fidelity to the truth. We now moan Times Now’s dangerous descent into neo-fascist rants. But this style was perfected during the heyday of the anti-corruption movement, where you could not have a rational discussion of the Antrix-Devas deal. The legacy of those days left us with a taste for generalised vigilantism. This art was perfected in the name of plutocracy. It is now being deployed under the garb of nationalism.
Vengeance institutionalism flattened the complexity of the distinctions between state, civil society and corporations. Take the issue of disclosure itself. There is one basic fact that seems to have escaped everyone’s attention — all the people you want disclosures from are in fact making them. They file income tax returns, and surely it is not too much of a stretch to believe that this information would be available in any anti-corruption investigation. All institutions have to be accountable, but the architectures of accountability have to be tailored to their fundamental identity. There also have to be distinctions: Should the norms that apply to those running for public office, those who are regular civil servants, and those who merely serve on boards of civil society organisations be the same? In the name of accountability, it is civil society that sought to erase a fundamental distinction between state and civil society, even between state and corporates.
Take another issue. It is true that sometimes spouses’ names can be used to disguise financial transactions. But can a progressive liberal constitution allow the principle that spouses should be subject to norms by virtue of the job their husband or wife holds. This is a gross violation of individuality and smacks of a deeply regressive construction of professional identities. But it is hard to have a rational discussion on these issues based on first principles.
There is a myth that NGOs are unaccountable. They are accountable in several ways, with even less protections than public servants. If NGOs take money from government they are subject to CAG audits. The FCRA regime has its own accountability structure. The state now has real time direct access to the bank account of any NGO. If this kind of surveillance does not reassure, what will?
Vengeance institutionalism was the classic Indian response. More and more categories of crimes were criminalised, rather than dealt with under civil or administrative remedies. We create more institutions when existing ones fail. We have done little to fix judicial capacity, we have a broken criminal justice system, public prosecutors’ offices are weak, even investigative capacity is patchy. And then we have inordinate faith that new institutions rather than reproducing pathologies of the old, will magically correct them.
The anti-corruption movement was correct in pointing out that the big elephant in the room was the CBI, an institution marked by unimaginable degrees of arbitrariness. This core challenge has still not been addressed. But it was, in some senses, made worse, by the one institution in which we reposed faith to solve corruption problems in India: The Supreme Court. The court peddled the illusion that it could reform the CBI. But instead, what it did was the opposite. Even as it knew of the CBI’s perfidies, it empowered the CBI even more. The court would monitor CBI investigations (as if it really can); it granted that institution even more legitimacy and power without accountability. The result is now on display in Delhi: The entire enforcement machinery of the state pitted against a democratically elected Delhi government. In fact, the ugly truth of Indian democracy is that it can be held hostage by one CBI officer. And yet the courts consistently empower it.
The political churning the anti-corruption movement produced was important. But it is arguable that it has left the basic institutional architecture of the state in a worse shape. It has created a climate where there is still a sense that institutions have more power to target honest people doing their jobs than they have to bring real culprits to book. And few of the basic institutional challenges — police reform, judicial reform, media selectivity, reinvigorating parliament as an institution of accountability, decentralisation, have been addressed. It is time for the anti-corruption movement to go back to the drawing board, learn to make fine distinctions, learn not peddle the illusion that merely concentrating power in some institution can solve the corruption problem. The state is now hoisting civil society with its own petard. There is a need to reflect deeply on how all this came to pass.