Friday, April 07, 2006

The politics of sacrifice (April 7, 2006)

Why Sonia Gandhi can get away from her grandstanding

By Swapan Dasgupta

The office-of-profit controversy which originated in a family spat involving the Gandhis and the Bachchans took an unexpected turn with Sonia Gandhi resigning from both the Lok Sabha and the National Advisory Council. To the more impressionable, this act of “sacrifice” was politically astute and would ultimately prove beneficial to both Sonia and the Congress. To the cynical, Sonia’s resignation was a desperate attempt to turn adversity into advantage. It will, they say, at best be a seven-day wonder.

Since the arguments on both sides of the sacrificial divide have been played ad nauseam in the media, it would be needlessly self-indulgent to replay them in this column. In any case, as Mao Zedong is reported to have said about the French Revolution, it is still too early to assess the impact of the Congress President’s well-scripted melodrama. We must await the judgment of history to unfold in due course.

The soap opera surrounding the real meaning of the abstruse Article 102 (1) (a) of the Indian Constitution has, however, quite unwittingly, thrown up a quirky philosophical issue. Can the political institutions and culture of independent India be assessed on its own terms? Alternatively, isn’t it more relevant to view the political conventions of contemporary India in terms of a seamless continuity from the Raj?

The questions arise because the origins of this hoary disqualification clause don’t lie in the Constituent Assembly proceedings. Indeed, the founding fathers hardly spent any time deliberating this bar to parliamentary membership. They merely grafted—and, quite rightly—a tradition that had evolved over the centuries in Britain to the Indian statutes. In doing so, the likes of Jawaharlal Nehru and B.R. Ambedkar tacitly accepted the terms of British constitutional history in India.

Till the late-1970s the acknowledgment of this heritage was quite explicit with the Union Public Service Commission offering an optional paper on British Constitutional History for its competitive examinations. It was only after India was bitten by the radical, post-colonial bug that the myth of political exceptionalism was internalised—leading to profound distortions in public life. Some of the ignorance witnessed during the media deliberations of a proposed amendment to the law—the demand, for example, by some puerile Leftists that the purview of “profit” be extended to private enterprise and the professions—stems from the trendy disdain for anything predating 1947.

Yet, it is impossible to assess the fuss over what constitutes an office of profit without reference to the long tussle between Crown and Parliament in Britain. Going by Erskine May’s Parliamentary Practice, the desire to keep Crown-appointed public servants out of Parliament arose prior to the English Civil War as part of the “continuous effort to gain recognition for the Privileges of the House.” It was also linked to the ability of MPs to be physically present in the House of Commons for a reasonable duration and led to the disqualification of judges and Church of England clergy. After the Restoration, the terms of battle changed to preventing the King from subverting the independence of Parliament with selective disbursement of sinecures and pensions. Since the government of the day was appointed by Royal Prerogative, it was in the interests of the Crown and the Government to secure parliamentary support through both persuasion and inducement.

Although the Succession to the Crown Act, 1705, created the statutory parameters for upholding the independence of Parliament from the executive, the problem persisted till the reign of George IV. Even as late as 1770, Edmund Burke could invoke the fear of a Court-inspired conspiracy to undermine parliamentary democracy: “The power of the Crown, almost dead and rotten as Prerogative, has grown up anew, with much more strength, and far less odium, under the name of Influence.”

The laws governing disqualification for holding any office of profit both “under” and “from” the Crown had to undergo further modifications after 1740. As “mob” pressure, the development of the party system and the principle of popular government progressively whittled down the Royal Prerogative, it became impossible to maintain a rigid separation between the executive and the legislature. Whereas the House of Commons had earlier been virtually united in its opposition to the unchecked role of the Crown, the Treasury benches increasingly came to be drawn from the Commons itself. This naturally meant that certain offices of profit from the Crown had to be exempt from the disqualification laws.

In 1957, all the different laws on the subject were brought together and simplified in the House of Commons Disqualification Act. The Act specified by name all those offices whose holders were not entitled to sit in the Commons. The Act, however, empowered Parliament to declare, if necessary, that a particular disqualification be disregarded.

Since all Indian legislation on the subject is drawn from Westminster, it is important to understand that the office-of-profit disqualification was aimed primarily at preventing the subversion of legislators by the executive. Since it is the job of Parliament to scrutinise the executive, all those non-ministers who are beholden to the state for exceptional perks and privileges—these could include lavish conveyance facilities, secretarial staff and first class travel arrangements—can be said to have been compromised. Although the party system and the ubiquitous three-line whip rule out complete independence of mind, the office-of-profit disqualification is aimed at preventing indiscriminate distribution of lollipops to MPs at government expense.

It hardly bears reiteration that this is precisely what an over-generous regime of exemptions would do. The parliamentarians of the 18th century were particularly agitated by “secret” pensions paid by the Crown to select colleagues. In an India where there is a ceiling on the number of MPs who can be appointed ministers, membership of the so-called development boards and autonomous corporations—some even carry “Cabinet status” for determining the size of privileges—is precisely the type of backdoor corrupt practice that Article 102 (1) (a) sought to prevent.

Finally, by restricting the offices of profit a MP can hold, the law sought to uphold the principle of accountability to Parliament. A Ministership is an office of profit under the state but it is exempt from the disqualification clause because the holder of the office is ultimately answerable to Parliament. The National Advisory Council had a seminal role in the UPA Government’s policies and priorities. It was funded totally by the government through the Prime Minister’s Office and its chairperson enjoyed the service conditions of a Cabinet minister.

The Government erred in not including the NAC from the exempted list. Yet, it was more than a technical oversight. In allowing Sonia to formally influence the Government and at the same time not being answerable to Parliament for that advice, the Cabinet was guilty of bypassing and undermining Parliament itself. There would have been nothing irregular in Sonia being the head of the Government-funded NAC if she had been sworn in as a minister and performed her role as a member of the executive, with full accountability to Parliament. Instead, she wanted the best of both world—the privileges that come with being a member of the Cabinet and the pretence that she had let her “inner voice” dictate her sacrifice of the highest political office.

Sonia’s was just the type of duplicity and unwholesome politics that conservatives like Burke and reformers like John Wilkes fought against. These champions of democracy could mount a credible attack on the attempts to corrupt Parliament because no one could point an accusing finger at them. Sonia can get away with her grandstanding because the Government, the loyal opposition and the real opposition want to blend feigned morality with special perks and extraordinary privileges.

(Published in The Telegraph, April 7, 2006)

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