The collapse of the discussions in the Lokpal drafting committee has disturbed me. We have some of our most eminent, brightest and accomplished people on the panel. Yet, they can’t seem to get along. Worse, each side comes on TV to portray the other as unreasonable. I have personally met people from both sides, and individually everyone seems sensible. Given the disagreements, there are now two versions of the bill floating around. Plenty has been written about the differences in the civil society’s ‘hard’ bill, versus the government’s ‘soft’ bill. The bigger issue is, we have a logjam. Why? More important, how do we break it?
One of the reasons for the impasse is the missing non-traditional approach to negotiations. Negotiations are different where both sides aren’t as equitable. During my banking days, i worked in a department that dealt with bankrupt companies. We often had to work with the promoter of a company, who had lied to us, willingly defaulted and not repaid the bank. We could take legal action against him, attach his assets and possibly put him in jail. However, we also needed him to revive the company, as he knew his business better than any of us bankers. Thus, despite him being our adversary, we would be nice to him and work with him on a plan that worked for everyone and increased overall value. Such negotiations are tough but not impossible. To negotiate a solution to a conflict with a more powerful counterpart, you have one guiding principle – incentives. What does one get, and what does one give up in return. The Lokpal panel is similar. The government is far more powerful than civil society.
In such a situation, the civil society cannot negotiate on the basis of fairness, or bulldoze its way in. It cannot appeal to morality. It also cannot keep telling the media how unjust the government is. No, none of this will work.
The civil society members are asking politicians to give up their unchecked powers. It is like asking someone to hand over a loaded gun. Of course they are going to fight it.
The civil society’s ‘hard bill’ is the more effective one, but unlikely to get passed, as the government doesn’t like it. The government’s ‘soft bill’ is less potent, but has a good chance of being passed in Parliament.
This is the quagmire. What would you do if you were in civil society’s place? The government attitude switched from cooperative, when they wanted the protests to end, to the current defiance. The first instinct to rebuff the two-faced nature of this government is to go on a fast again, as announced by Anna.
However,another fast may not be the solution. For one, it won’t work as well as the one in April. People have moved on, don’t get as passionate about specific legal clauses and Baba Ramdev has blown it for all future fasters anyway. Also, the government is far better prepared to handle the next fast. If the fast fails, the civil society reps risk losing credibility, and the whole Lokpal movement being deemed a failure.
This is not a time to be emotional. Civil society reps must realize they are dealing with an extremely powerful government. This is for two main reasons. One, there is no clear, credible alternative to the Congress right now. The BJP is partly to blame for this. They haven’t capitalized on the corruption opportunity, and have limited themselves to endless, clichéd Congress bashing rather than present their own, better leader and a vision for India.
The second reason for the government’s power is simple. You need their cooperation at every step of the Lokpal, even after the bill is passed. The Lokpal can protect against corruption, but what will they do if a civil servant never approves a file? He won’t be corrupt, but isn’t he damaging the country anyway? Without the cooperation of the government, the Lokpal can be scuttled and made counterproductive.
Before the entire Lokpal becomes a casualty, i’d urge civil society members to get a grip on reality. This doesn’t mean they accept defeat. This simply means rather than attack the government, they work out a set of incentives that work for all.
Ihave three specific suggestions the panel may consider: one, retrospective immunity — this is controversial, hasn’t been discussed, but frankly needs to be. The current leaders are more likely to sign-off on the bill, if they are protected. For instance, the MPs should be included, but maybe from a later date.
Two, revise provisions —no side can claim to draft the perfect law the first time. A bill that alters our fundamental governance structure needs to be relooked at over time. The bill can ask the same panel to reconvene after three years, and improve it based on lessons learnt in its execution. This flexibility will make both sides more amenable to arrive at a common first draft.
Official whistleblower provisions — the Lokpal is an investigative authority. However, it cannot investigate every corrupt practice in this vast country. In fact, the best investigators of corruption are the junior workers where corruption is taking place. The Lokpal must make a mechanism for whistleblowers to reveal information (some sort of an official, credible, WikiLeaks) as well as protect them from seniors who could hurt them.
These suggestions aren’t meant to be partial to any one side. These are meant to eliminate the sides. If everyone works to suit each other’s incentives, we can have a reasonable Lokpal bill that can be amended in future. This will still be a victory for civil society and the government will look good and be credible. So meet again, panel members, have a meal together, understand each other, show some love, and work something out. Good luck!