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The people and the lawmakers

Hazare’s backers may unleash the very demons they mean to confront.

Written by Niraja Gopal Jayal | Published: August 24, 2011 2:10:23 am

The wonders of civil society as the spontaneous expression of the will of the people stand revealed to us in all the glory of the Anna Hazare Roadshow (AHR),claiming a mantle of legitimacy superior to that of any institution in the country.

There are two dangerous implications of privileging such “real” expressions of the people’s will over that expressed through what is being rubbished as a phony democracy. First,anybody who can queer the pitch sufficiently,assisted by the media,can present themselves as the authentic representatives of the people’s will. This is not just procedurally dubious; it is also alarmingly vulnerable to being misused by any demagogue who can tap into popular outrage,seduce the media into providing round-the-clock coverage in a mutually beneficial embrace,and exploit social networking to whip up a cyber-frenzy — blurring the difference between the numbers of those on Twitter and those on the streets.

The second problem is more intractable: if we allow civil society (or any segment of it,however well-intentioned) to dictate the law to Parliament today,on what grounds do we deny the same privilege to others tomorrow — corporate lobbies,for example? The Niira Radia issue confirmed what everybody knows: that just because lobbying in India is unregulated and unacknowledged doesn’t mean that it does not exist,and that companies have sophisticated ways of influencing public policy in areas that affect their interests. They do this through direct pressure on the executive,but they do it also by influencing legislative opinion,sponsoring parliamentary questions,and even openly and egregiously weighing in on the government.

If civil society is given the legitimate prerogative of formulating the law,are there any principled arguments that can be used to deter industry bodies from demanding the same? Do we not undercut the very grounds on which we could deplore an inordinate influence of capital over law and policy? On what basis will we then be able to delegitimise the power of one (capital) as we legitimise the influence of the other (civil society)? What tests of representativeness can possibly be applied to either? As both claim to speak in the name of the collective good — one for the prosperity,and the other for the welfare,of citizens — how and by whom might such representational claims be arbitrated?

The advocates of civil society of course argue that theirs is the true voice of the people,but the evidence for this claim — the household referendum that was conducted by the AHR — makes one despair,and even contemplate Brecht’s sardonic advice to dissolve the people and elect another. The other justification they offer is that if the National Advisory Council with its civil society membership can formulate law,why not civil society that is not government-sponsored? But the NAC is not a civil society organisation. It is more like a quasi-government think-tank,such as many governments across the world have instituted in the practice of “network governance”,typically entailing the participation of handpicked elements of civil society.

The other side of this valourisation of civil society is the conviction that the state is inherently repressive,nothing but concentrated evil. By incarcerating Anna Hazare,Dr Manmohan Singh’s government has provided not just the AHR and its admirers,but also others distrustful of the state with just the stick they craved to beat it. It is hardly surprising that a prominent item in the ten-point charter of measures against corruption proposed by a leading national daily is reducing the role of the state in the lives of citizens to the absolute minimum. This may be music to corporate ears as well as to some in civil society — but maybe someone should ask the poor whether they too wish to dispense with the state?

It was the inexplicable foolishness of the Central government in arresting Anna Hazare that led to the events of the past week getting hyper-constructed as an adversarial issue with the government pitted against civil society. The real parties to this dispute,however,are not government and civil society,but Parliament and civil society. Over the past week,while opposition MPs have rightly spoken in defence of civil liberties,the right to dissent and freedom of protest,they have been oddly reluctant to assert their own constitutional prerogative to legislate. This may be because few parties are free of the taint themselves and because the credibility deficit involves the entire political class.

This self-denial is perhaps inadvertently blessed by the argument of a senior journalist that Parliament is the author of the law in only the most technical and banal sense,that it is the Constitution rather than Parliament that is supreme,and that history is replete with examples of people being the real makers of the law. This in turn can only be rhetorically true,for the supremacy of the Constitution is normative,rather than practical; and popular movements are not generally engaged in the nitty-gritty of drafting laws,which can be the only analogy that applies in the current context.

To oppose the AHR and the Jan Lokpal bill is not tantamount to endorsing corruption,or to being any less outraged by it than the next person. Our disappointment with our frequently under-performing legislators cannot mean that we discredit Parliament as a worthless institution. Giving civil society overweening power over our lives must not be allowed to become a recipe for weakening government and strengthening the market.

It is paradoxical that the issue that led to the unravelling of the most scandalous corruption in the highest of places — the Radia tapes followed by the 2G scam — is the very issue that has energised this purportedly massive upsurge of civil society. The supreme irony is that to give in to the demands of the AHR would be tantamount to opening the doors to legalising the very forms of influence on which Hazare is so generously staking his life.

The writer is a professor at Jawaharlal Nehru University,New Delhi

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