LAW RESOURCE INDIA

Acts of omission

Posted in CONSTITUTION, DEMOCRACY by NNLRJ INDIA on March 15, 2010

SHAFI RAHMAN IN INDIA TODAY

Soon after the tsunami had killed thousands of people along the coasts of southern India, Parliament passed the Disaster Management Bill that provided for setting up an institutional mechanism to coordinate and respond promptly to disasters, natural or man-made. “Its passage was timely, coming as it did after a year in which floods, earthquakes, heavy snowfall and avalanches created havoc in parts of our country,” Prime Minister Manmohan Singh said, patting his own Government in the back as the bill was passed unanimously in the House and went on to receive presidential assent in June 2005. When the Government finally enforced the Act, crucial sections–23 and 24–which called for setting up of the National Disaster Management and Response Funds for financing rescue and rehabilitation, didn’t find their way into the dreary pages of the Gazette of India, virtually nulling the legislation as the omissions had denied necessary funds to manage disaster situations.

The Disaster Management Fund was not set up as the Government lost its enthusiasm down the line to put money into the project and vetoed it away from the gaze of the Parliament. The UPA Government is touching a low road in betraying the trust of Parliament and of its own reformist postures. During the notification stage, many ministries have put on hold significant parts of the acts passed by Parliament and assented to by the President, thus allowing the executive to stray into the domain of the legislature. Various ministries have already run their knife through over half-a-dozen crucial acts, ranging from the ones regulating petroleum and natural gas to those that curb powers of arrest in criminal cases. The governments have over the years been quick when it comes to notifying the acts that are given assent by the President. The saccharine qualities of many legislations passed by the Parliament often wear off when handled by babudom.

This is now beginning to threaten the food on our table. When the Government introduced the Food and Safety Standards Act in 2006, it impressed Parliament with plans for “laying down science-based standards for articles to ensure availability of safe and wholesome food for human consumption”. For a country where 60 per cent of food commodities are contaminated with pesticides, of which almost 14 per cent showed contamination over the maximum tolerance limits, the legislation were long overdue. The bill received presidential assent on August 23, 2006. But it wasn’t until nearly three years later, in July 2009, that the Ministry of Health and Family Welfare issued the notifications needed to implement the Act. The Act is still waiting, however, to be turned into deed as the ministry quietly set aside those parts that were concerned with the use of food additives, processing and banning the use of insecticides during the long-drawn notification process. As a result, the Food Safety Authority is a toothless tiger and the food Indians consume continues to be unsafe as processed food companies vie for their share of your stomach.

Activists argue that the Government caved in to the pressure from influential players in India’s $100-billion (Rs 4,50,000 crore) food market, about a third of which is processed foods that wanted to stop the crucial reforms. “We needed a regulator that erred on the side of public health, to ensure the food on our tables met strict standards for toxins, additives and chemicals and enabled nutrition, not commerce, to drive the food industry,” says Sunita Narain of the Centre for Science and Environment.

Bills passed by Parliament become law when they receive presidential assent after which the Government issues a notification in the official gazette to make them operational. Due to administrative reasons, Parliament delegates the power of commencement of the Act to the executive as it may require the setting up of a regulator or even infrastructure like special courts. Many believe that by not issuing such a notification within a reasonable period of time, or withholding parts of it, the executive has assumed law-making functions, with the power to veto certain parts of the law which it is not in agreement with. “If the Government is not notifying the acts passed by the Parliament in its entirety, it is a subversion of the sanctity of Parliament. It reflects the Government’s utter contempt for the will of the people,” says CPI(M) Politburo and Rajya Sabha member Brinda Karat. Though the notification process is usually left to the executive, Rajya Sabha Deputy Chairman Rahman Khan feels that the members should seek clarification in the House from the respective ministries for failing to fully notify Acts passed by the Parliament. “Even various parliamentary committees can suo moto seek clarifications from the executive for failing to bring in an Act passed by Parliament,” he adds.

When Parliament passed the Petroleum and Natural Gas Regulatory Board (PNGRB) Act 2006, it was aimed at providing for a regulator; a focused agency that would enable distribution of natural gas, critical for economic growth, without corporate capture. But when the Government quietly set aside Section 16 of the Act, which explicitly said that no entity shall lay, build, operate or expand any pipeline without the authorisation of the board, the prospects for new CNG projects dwindled away. By setting aside this clause, the prospect of laying piped natural gas connections across urban homes has become bleak and millions of domestic gas consumers are left with no option but to queue up for untrustworthy and poorly managed gas cylinder supplies. In the last week of January, the Delhi High Court ordered that since Section 16 of the PNGRB Act had not been notified by the Government, the board did not have the power to grant authorisation for city gas distribution and annulled gas licences for six cities–Kakinada in Andhra Pradesh, Mathura and Meerut in Uttar Pradesh, Kota in Rajasthan, Dewas in Madhya Pradesh and Sonepat in Haryana. The court also restrained the board from awarding licences for seven cities that included Allahabad, Ghaziabad and Jhansi in Uttar Pradesh, Shahdol in Madhya Pradesh, Rajahmundry and Yanam in Andhra Pradesh and Chandigarh.

The Indraprastha Gas Ltd which had a pre-PNGRB authorisation for CNG operations in Ghaziabad had challenged the board’s move in the Delhi High Court. The Government in its internal note says that “the existing text of the Act does not reflect the spirit of the statute”, almost questioning Parliament’s view on the issue. “In the absence of adequate scrutiny of the legislation while passing the bills, the Parliament is giving away more discretion and power to the executive. The MPs must insist that any law that they pass must have a date specified by which it will come into effect. A good example of this is the Right to Information Act in which the law clearly specified that it will come into effect in 120 days from the date of passage of the law,” says C.V. Madhukar, director, PRS Legislative Research.

Not very different is the case of amendments to the Criminal Procedure Codes passed by the government in 2008. This was seen as an effort to put checks and balances on police powers and aimed at stopping abuse, torture, corruption and extortion in police stations. The Act was a bold move to put accountability in place among the uniformed lot and prevent arbitrary arrests without evidence or investigation. Section 41 of the Act takes away the powers of the police to arrest in cases of alleged offences which carry a maximum sentence of up to seven years. The police will have to issue a “notice of appearance” for any offence punishable with imprisonment of up to seven years. The person can be arrested only if he does not appear before the police in response to the notice. It was a maiden attempt to sweep clean the neighbourhood police stations of corruption. The National Police Commission, referring to the quality of arrests made by the police in India had mentioned that “power of arrest was one of the chief sources of corruption in the police. Under IPC crimes, 27.8 lakh persons were arrested and 41 lakh were arrested under Special and Local Law crimes in 2007.”

According to the report, nearly 60 per cent of arrests were either unnecessary or unjustified and such unjustified police action accounted for 43 per cent of the expenditure of the prison department. While notifying the Act, Sections 5,6, 21(b) were quietly put in cold storage due to heavy protests from lawyers who thought that the move would hurt their fraternity, a large chunk of who make a living from handling bail cases. The lawyers are planning an agitation against the section and the Delhi Bar Association even went a step further by issuing an order to its members to join a march to the Parliament at the end of this month. “Those absent will be considered as supporters of the stand of the Government and we will be constrained to strike off their names and cancel all facilities provided by the bar, which includes chambers and seats,” says Rajiv Khosla, president of the Delhi Bar Association, in a circular sent to the members. “The aggrieved sections should have come forward with their opposition during the lawmaking process. Once Parliament has taken adecision, it is improper to stop its execution. If the executive wants to make any amendments, it should come back to Parliament instead of withholding its enforcement,” says E.M.S. Natchiappan, Rajya Sabha MP of the Congress.

Selective notification of an act is a tactic successive governments have employed, albeit rarely. In 1981, the issue of the non-enforcement of certain sections of the Constitution (44th Amendment) Act, which deleted Right to Property from the list of fundamental rights, came up before a five-judge bench of the Supreme Court. The majority judgement said that it was permissible to Parliament to vest in an outside agency the power to bring a constitutional amendment into force. “But we find ourselves unable to intervene in a matter of this nature by issuing a mandamus to the Central Government, obligating it to bring the provisions of Section 3 into force. The Parliament have left to the unfettered judgement of the Central Government the question as regards the time for bringing the provisions of the 44th Amendment into force, it is not for the Court to compel the Government,” the judgement said.

Two judges dissented from this part of the ruling. One of them, A.C. Gupta, said in his dissent note: “I do not think that Section 1(2) can be construed to mean that the Parliament left it to the unfettered discretion or judgement of the Central Government when to bring into force any provision of the Amendment Act. After the Amendment Act received the President’s assent, the Central Government was under an obligation to bring into operation the provisions of the Act within a reasonable time; the power to appoint dates for bringing into force the provisions of the act was given to the Central Government obviously because it was not considered feasible to give effect to all the provisions immediately.”

In the case of these Acts, the executive is given powers to enforce them. “It is unfortunate that legality is taking precedence and morality is taking a back seat everywhere and the acts are not being enforced completely,” says former chief justice J.S. Verma. The previous NDA regime took to the partial notification route only in four bills– The Chemical Weapons Convention Act 2000, The Energy Conversation Act 2001, The Haj Committee Act 2002 and The Patents Act 2002. But the UPA government has turned this into a fine art. Of the 159 acts completely notified from 1995 to 2008, 144 were enforced with a single notification. Of these, 102 were passed in six months and 31 in an year. Only 26 acts during the period took more than a year, nine of which belonged to the period after the UPA came to power in 2004. The UPA, since 2004, has partially notified nine key legislations and has not notified three legislations at all, making it an easy way to veto Parliament.

So much so that sometimes even ministers are caught off guard. Environment and Forests Minister Jairam Ramesh was taken by surprise when activists alerted him about a Gazette notification issued by his own ministry on October 26, last year. The notification had taken 190 species of plants out of the protective sphere of the law on biodiversity, amid allegations that it was done to enable biological resources to be plundered with ease. Early this month in Bangalore when A.S. Anand, the chairman of Karnataka’s Organic Farming Mission, told Ramesh about the notification, the minister called up his mandarins to find out the truth from. “I will tender a public apology if what you say is true. If what I say is true, you should resign from your job,” Ramesh told Anand.

As bad as the economic fallout is, the issue has turned into something worse: a test for parliamentary democracy. The executive, by taking the acts passed in the Parliament through a blind alley, is outweighing the prominence of the Parliament. Only concrete efforts and good intentions, not just apologies, can redeem the situation.

http://indiatoday.intoday.in/site/Story/86692/Acts+of+omission.html?page=0

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