CAG, SC, EC: institutions up in arms

Indian politics today seems driven less by politicians and more by the Supreme Court and Comptroller and Auditor General (CAG). What does this imply for Indian democracy?

The answer is that we are seeing a revolt by India\’s institutions against a corrupt, callous state. An implicit political conspiracy ensures that all parties can, with impunity, engage in kickbacks and nepotism on a grand scale. In such a milieu, outcomes are decided not by justice but by money, muscle and influence.

India\’s institutions have responded by turning activist, and crossing old jurisdictional borders. Earlier, the Election Commission and Supreme Court had turned activist. The CAG has now followed suit.

Activism can lead to excesses. Yet it\’s better to have activist institutions , excesses and all, than passive institutions allowing money, muscle and influence to reign supreme. Remember, in the1980s the Election Commission was a helpless bystander to booth-capturing and other election malpractices. State governments connived in electoral violence, bogus electoral rolls and other vices.

On becoming chief election commissioner in 1990, TN Seshan decided to crack down. He would not allow elections to go forward till fair conditions were established. He decreed that the Election Commission would determine the deployment of security forces to ensure honest polling, not state governments. He staggered elections in a state over several days, to allow concentrated security forces to move from one section of the state after another, combating booth capturing.

Seshan wanted voter ID cards to check impersonation. Many chief ministers opposed this as too expensive and time-consuming. Seshan responded by threatening not to hold elections in two states unless ID cards were issued. His ploy was struck down by the Supreme Court as an unwarranted excess. Nevertheless, Seshan ended his term as a public hero. Indian elections have once again become fair, and ID cards have become the norm.

The Supreme Court has long revolted against state callousness. In 1979, Justice PN Bhagwati pioneered public interest litigation, empowering any citizen to move the Supreme Court-on the principle of fundamental rights – to ensure justice and fairness on virtually any issue for the common man. The activist court has passed orders to protect the civil rights of tribals, bonded labourers and prisoners; to check environmental damage and to ensure that the state avoids sundry arbitrary favours. The court\’s most famous activist interventions have been in the Jain hawala scam and the 2G scam.

However, its activism has led to excesses. Recently it decreed, rightly, that the government should phase out unwarranted Haj subsidies within a decade. But in the interim, it decreed a discretionary quota of 500 subsidised pilgrims annually, with sub-quotas of 100 for the President and 75 each for the Vice-President and Prime Minister, and 50 for the external affairs ministry! How are such detailed quotas and sub-quotas the job of the judiciary?

Former solicitor general Andhyarujina points out that the court has ordered the interlinking of rivers, banned the pasting of black film on automobile windows, and banned tourism in core areas of tiger reserves. \”All these managerial exercises by the court are hung on the dubious jurisdictional peg of enforcing fundamental rights under Article 32 of the Constitution. In reality, no fundamental rights of individuals or any legal issues are at all involved in such cases. The court is only moved for better governance and administration, which does not involve the exercise of any proper judicial function.\”

Today, the CAG has turned activist. Traditionally, it produced conventional, boring audits, which were widely ignored. But now it has started making calculations of how much revenue the government might have lost by failing to auction natural resources, first in the 2G case (estimated loss Rs 1.76 lakh crore) and now in coal mine allocations (estimated loss Rs 1.08 lakh crore). Opposition parties and the media have interpreted these staggering figures as an estimate of corruption, and asked for the Prime Minister\’s head.

However,economist Surjit Bhalla has, in a brilliant analysis, poked huge holes in the CAG\’s estimates. The CAG has failed to do elementary things like discount the value of future profits, allow for variations in future prices, or allow for tax payments. So, Bhalla calls many CAG estimates falsehoods, not truths. But he exaggerates in estimating the CAG\’s overall truth-to-falsehood ratio at just 6%.

Despite excesses, an activist CAG represents a net gain for democracy. Along with the Supreme Court, the CAG has ensured that most natural resources will be auctioned in future. That is a huge gain in fairness.

After the Election Commission and Supreme Court, the CAG has become the third institution revolting against a corrupt, callous state. We need such revolts.

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