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Sparring partners by Nandini Sundar

Rather than shutting its doors on ‘civil society’, the government should be thanking its stars that the latter wants to make law, not war. Distributing tee-shirts with this slogan would be a better use of the government’s ‘hearts and minds’ funds than the integrated action plan to counter Naxals, or the army’s tourism trips to Pune for Kashmiri schoolgirls.

The UPA regime has been unprecedented for the spate of legislation that has been pushed by various people’s movements — on information, education, employment, and forest rights. And now we have the Communal and Targeted Violence (CTV) Bill, the Food Security Bill and the Jan Lokpal Bill. Apparently born out of a disillusionment with existing institutions, they, in fact, reflect the opposite — a renewed public faith in the idea of government and law. If there is any danger from the flirtation, it is certainly not to the State, but to civil society, through the risk of an over-judicialisation of resistance and aspirations. The adivasi rebels of the colonial period struggling for jal, jungle and jameen never sat in the offices of advocates to frame their political strategies that their counterparts today often end up doing.

A signal of how much power a group enjoys is not the noise it makes on the street but how silently it can effect the changes it wants. Apart from the Special Economic Zones Act 2005, the UPA has in place a number of legal and regulatory instruments to promote corporate interests. Quite apart from industry representatives serving as experts on drafting committees (and now even as parliamentarians), given the frequency with which the PM or his ministers attend corporate functions, there is no need for them to go on hunger fasts or camp at Jantar Mantar to make their point heard. More insidiously, one of the biggest sources of law-making today is through supposedly ‘apolitical’ channels, through the importation of best-practices in particular projects, by the World Bank, or consultancy organisations like McKinsey. In its 2004 ‘Initiatives in Legal and Judicial Reforms’, the World Bank made no bones about the fact that legal reforms were conditionalities for structural adjustment programmes. Many of these legal reforms prioritise market-friendliness and downsizing the State, and were they to be openly debated, it is doubtful whether most parliamentarians could justify them to their constituents or to the Constitution.

Paradoxically, all the solutions suggested by civil society involve an expansion of government bureaucracy. Each bill —  the Lokpal included — envisions a separate authority. But past attempts at creating such institutions of exception, to redress the failure of the ordinary course of government or law, have been noticeable by their calculated ineffectiveness. The most significant function of the Commissions for Scheduled Castes and Scheduled Tribes, for example, is to redress the grievances of SC and ST government employees. They have played no role on the major issues affecting these communities today. The National Human Rights Commission (NHRC) is overwhelmed by complaints and its most common strategy is to refer the matter back to the concerned government department for comments.

In the case of Salwa Judum, its investigation wing comprising serving police officers on deputation, was devoted to defending the police cause, but because they functioned under the NHRC, they managed to set the cause of human rights back by several years. Even under laws like the Domestic Violence Act that try to fast-track cases to completion within six months, cases can last for years together.

Civil society’s response has been to try and ensure independence at the top — through transparent nomination and selection procedures. But little thought has been given to the fact that they will have to work through the same bureaucracy. By refusing to provide office space and staff, the best initiatives can be successfully stalled. Take for instance the government’s current flagship Right To Education Act. Despite mandating the National Commission for Protection of Child Rights (NCPCR) to do the monitoring the Act requires, the government has not created a secure post for this and the NCPCR is dependent on consultants.

Even as new laws are added on, fundamental colonial era laws like the Indian Penal Code or the Land Acquisition Act remain unchanged. Without addressing these and the structural problems in the bureaucracies they underpin, both State and civil society are evading the real problem.

The problem with the mainstream political parties is not that they object to pressure from outside per se, but that they want organisations they can control and use. The BJP is adept at this, with the Liberhan report describing the demolition of the Babri Masjid as a “joint common enterprise” between the BJP-ruled government and the various fronts of the RSS in civil society. In praising the Salwa Judum in Chhattisgarh as a “self-initiated people’s organisation”, the BJP was trying to claim the mantle of civil society, even as it denied legitimacy to the Maoists, who, whatever else they are, are self-initiated. The Congress has been no pushover either, with Rajiv Gandhi claiming helplessness in the face of so-called ‘public’ anger in 1984: “When a big tree falls, the earth is bound to shake,” he had said after the anti-Sikh riots following Indira Gandhi’s death.

However, activists too forget how malleable this imaginary public is. If Anna Hazare claims to represents ‘the people’, so  does Baba Ramdev and so does the Ram Janmabhoomi movement. And so does the elected government.  Since the criteria for measuring public support are themselves contentious, the ultimate measure to test laws should not be public backing, but whether they fulfill the constitutional ideals of equality, liberty, secularism and transparency. The path to this, too, is debatable. But at least we are on a different terrain.

Nandini Sundar is professor of Sociology, Delhi University. The views expressed by the author are personal.