The lie of the land

The court presses home its power to intervene when ‘little Indians lose their small property’ to land acquisition by state governments

M J Antony / New Delhi March 30, 2011, 0:33 IST

Parliament has not been able to pass an updated land acquisition law for several years, though this is a burning issue and innocent blood has been shed in many states. Meanwhile, the Supreme Court continues to deliver judgments in which disputes arose several decades ago. Two such decisions in recent weeks deal with the governments’ claim of urgency in land takeovers. The governments’ subsequent conduct showed the acquisition was neither pressing nor imperative. The court, therefore, underlined that the landowner’s right cannot be “flattened and steamrolled” on a mere declaration that the acquisition is urgent.

Section 17 of the Land Acquisition Act of 1894 empowers the government to acquire land for urgent reasons without following the procedure of giving land losers a hearing. This provision is prone to great abuse, as illustrated in the two judgments.

Incidentally, this is not the only provision that has been consistently manipulated by governments to benefit powerful interests. The omnibus term “public purpose” is a woolly and hard-to-contradict excuse for land acquisition. The rate of compensation is another sore point in the acquisition law, because of which farmers have to climb the shaky ladder of law up to the Supreme Court to demand a just amount. The litigation often turns out to be the only bequest for their children.

Returning to the urgency clause, the judgment in the appeal case State of West Bengal vs Prafulla Churan reveals the high-handedness of the state government. The land in Kolkata was acquired first in 1944 under the Defence of India Act. While the government still held possession, it invoked the West Bengal Requisition and Control Act in 1959 to continue to hold on to the land. This was challenged by the owner and the Calcutta High Court asked the government to return the land to the owner. But the government invoked the “urgency” clause in the Land Acquisition Act on the grounds that the land was required for the state ceramic development board. The litigation continued with the government losing all the way. Now it has lost in the Supreme Court too.

The court stated that all schemes relating to development of industrial and residential areas must be urgent in the context of the country’s need for increased production and more residential accommodation. Yet, the very nature of such development schemes does not appear to demand emergent action to eliminate summary enquiries that are imperative. The development of an area or a city takes many years so there is no reason that summary enquiry as contemplated under Section 5-A may not be held and objections of landowners may not be considered.

In the second judgment dealing with the “urgency” claim, Dev Sharan vs State of UP, the government wanted to build a new jail in Shahjahanpur because of congestion — 1,869 people are lodged in a 140-year-old, dilapidated building at present. But the noble intention would not justify the deprivation of the property rights of the agriculturists. The government moved slowly and took nearly a year to complete the acquisition process. There was sufficient time to give the landowners a hearing. Unfortunately, the writ petitions of the farmers were dismissed by the Allahabad High Court; it approved of the emergency requirement of the government.

On appeal, the Supreme Court noted the recent negative trend in land acquisition and pointed out how it affected the property rights of the citizens. The law is of colonial, pre-constitutional vintage, said the judges, and it is “drastic and expropriatory in nature as it confers on the state a power which affects person’s property right. Even though right to property is no longer fundamental and was never a natural right, and is acquired on a concession by the state, it has to be accepted that without right to some property, other rights become illusory. This court is considering these questions especially in the context of some recent trends in land acquisition.”

What follows after a discussion on the rampant misuse of the amorphous phrase, “public purpose”, should awaken state governments eager to take over land and give it to industries. The judgment reads: “The courts must examine these questions very carefully when little Indians lose their small property in the name of mindless acquisition at the instance of the state. If public purpose can be satisfied by not rendering common man homeless and by exploring other avenues of acquisition, the courts, before sanctioning an acquisition, must in exercise of their power of judicial review, focus their attention on the concept of social and economic justice.” Even during the current election fever, no political party has seriously taken up this raging issue.


Judicial Standards and Accountability Bill

Supreme Court of India

Ajit Prakash Shah

In a system where half the litigants must necessarily lose their cases and where most complaints against judges are frivolous, the Bill, if implemented, would mark the beginning of the end of the judiciary.

The last two decades have marked the extraordinary rise of India. This has however been tinged with cynicism about our major democratic institutions and a pessimism about their future. The judiciary, which till now has been looked upon as the strongest pillar of Indian democracy, has been beset with unprecedented problems. In recent times, the working of the judges of superior courts (High Courts and the Supreme Court) has come in for intense scrutiny and grave doubts have been cast against the conduct of some judges. The pressing call for greater institutional accountability in the Indian judiciary is now stronger than ever. It is in this light that Parliament’s proposed Judicial Standards and Accountability Bill, 2010 must be seen.

This Bill appears to be a hurried and knee-jerk reaction to recent events, and has the potential to seriously undermine judicial independence. It seeks to devise a new “complaint procedure” under which any person may be able to file a complaint in writing against any judge of a superior court. Upon such a complaint being filed and examined, the Judicial Oversight Committee (proposed to be constituted under the statute), may either dismiss the complaint or make a reference to Parliament for the removal of the judge, issue advisories, warnings, withdraw judicial work or make a request for voluntary retirement.

The issue of Judicial Standards must be seen in the context of Art 124(4) of the Constitution which provides for the process of impeachment of a judge on the grounds of “proved misbehaviour or incapacity.” Art 124(5) empowers Parliament only to make laws to regulate the procedure for presentation of address of impeachment, and for the investigation and proof for the misbehaviour or incapacity of a judge.

Cleverly disguised Bill

The present Bill, cleverly disguised as being permissible under Art 124(5), is an example of the most blatant violation of constitutional safeguards and is a cure that is surely worse than the disease. Article 124(5) does not empower Parliament to create any other forum for recommending impeachment proceedings, or allow complaints to be made by any person, or to make a judge liable for minor penalties. What can be done only by a hundred or more members of the Lok Sabha or fifty or more members of the Rajya Sabha (i.e. initiation of impeachment proceedings) can now theoretically be done by only one person.

It is true that judicial commissions exist in other countries like the U.S. and Canada, but their reach does not extend to the apex court. Also, adopting such structures from other countries without having regard to the unique conditions existing in ours, is untenable and fraught with the danger of destabilising our delicate constitutional balance.

Outlined below are some of the other major defects in the Bill:

Definition of misbehaviour: The Bill seeks to provide a straight jacketed definition of misbehaviour in Clause 2(j), but by laying down a strict definition, the concept loses its elasticity and becomes both under-inclusive and over-inclusive. Over-inclusive, that absent a de minimis exception, even a minor breach of judicial standards, say late filing of assets declaration, could constitute misconduct; and under-inclusive that to the extent that the definition is exhaustive (since it uses the word “means”), it is incapable of catching within its fold any “misbehaviour” that might not be covered by this provision. The Constitution framers had been careful not to define the term misbehaviour, let alone define it exhaustively. Implicit in this understanding was the belief that if the power of removal was vested in high constitutional authorities, they would be in the best position to judge when misbehaviour (or incapacity) had been occasioned.

Statutory provision for judicial standards: The Bill also provides a list of standards of judicial conduct to which all judges are expected to adhere. Sixteen of the 18 enumerated standards are derived from the “Restatement of the Values of Judicial Life” adopted at a Full Court Meeting of the Supreme Court on May 7, 1997. However, the very idea of statutorily providing for judicial standards, irrespective of their content, is violative of judicial independence.

A significant portion of litigation before higher courts today is public in nature and involves the State as one of the parties. Laws are also routinely impugned for their unconstitutionality. Given this, investing the legislature with the power to lay down and amend the standards which all sitting judges must adhere to (or risk the proposed penalties), has the potential to severely threaten impartial and effective adjudication.

Scheme of filing complaints: Under the Bill, “any” person may file a complaint in a prescribed format. Further, the proposed Judicial Oversight Committee will just act as a post-office and refer each complaint to a Scrutiny Panel. This is likely to lead to a multiplicity of complaints and even though the Bill proscribes false and vexatious complaints under Clause 53, this is unlikely to prove much of a deterrent, and since each of them will have to be checked by the Scrutiny Panel, it is also likely to result in a colossal waste of time.

Clause 18 provides that the Oversight Committee shall consist of five persons with two serving and one retired judge, an appointed eminent person and the Attorney-General of India. The presence of the Attorney-General on the Oversight Committee is highly suspect. The Attorney-General has the responsibility of regularly appearing on behalf of the government before the court. On occasions, the possibility of his appearing before a judge against whom a complaint has been filed cannot be ruled out. In such a circumstance, there is clearly a conflict of interest since the Attorney-General will be a member of the Oversight Committee to look into the complaints made against the former.

The Scrutiny Panel is to consist of three members, two of whom will be judges sitting in the same court as the judge against whom the complaint is made. Since these judges would be colleagues sitting in the same court, it is likely that this will, either way, influence their conduct. It would be difficult for judges to dispassionately decide a case against one of their own and sitting with them day in and day out.

Furthermore, the composition and tenure of the Investigation Committee which is to be constituted for the purpose of enquiry into misbehaviour by a judge is undefined. Theoretically, therefore, it is possible for a lay person without any knowledge, experience or standing to be a part of an inquiry panel against a sitting judge of a superior Court.

Minor punishments: The idea of “minor” punishments is unworkable and has the potential to seriously undermine judicial status. If sitting judges are issued advisories and warnings and thereby publicly censured, but still continue on the bench and decide cases, this damages the credibility of the entire system.

Atmosphere of secrecy: Through Clause 43, the Bill completely excludes the operation of the RTI. This establishes an atmosphere of total secrecy more regressive than the present system, and for which, there does not appear to be any rational reason to make a change.


It is totally impermissible for the legislature to strike upon the independence and fearlessness of the judiciary. A judge of a superior court cannot be treated as an employee of the government. The present Bill is incapable of salvage and must be rejected in totality. In a system where half the litigants must necessarily lose their cases, and where most of the complaints against judges are frivolous and made by disgruntled litigants, this bill, if implemented, would mark the beginning of the end of the judiciary.

Demands for change to existing systems in the judiciary must be met rationally, bearing in mind the objectives sought to be achieved. The first site of change must be in the process of judicial appointments. The present system where judges of the superior courts are chosen based on undisclosed criterion in largely unknown circumstances reflects an increasing democratic deficit. The legitimacy of the judiciary ultimately flows from public support, which cannot be maintained without a transparent and open selection process.

The guiding principle should always be this: accountability there is and must be, but let it always be commensurate with judicial independence and impartiality. Ultimately, the appropriate balance between competing principles must be found in something that is best suited to our constitutional setup and is, in that sense, uniquely Indian. The citizens of India deserve no less.

(Justice Ajit Prakash Shah is former Chief Justice of the Madras and Delhi High Courts.)

Forcible recovery of vehicles illegal


The National Commission and the Supreme Court have repeatedly held that the rule of law must prevail and it is illegal to use musclemen to forcibly take repossession of a vehicle when the borrower or the hire purchaser fails to pay the installments. Yet banks and finance companies continue to adopt strong-arm tactics to forcibly seize vehicles from borrowers who default in making payment. In order to try and circumvent the law, they have introduced a clause in the agreement that the vehicle can be repossessed for default in repayment of the loan amount. What is the validity of this clause? This interesting issue was decided on February 11 by the bench of Justice Batta and Vinay Kumar of the National Commission in the case of IndusInd Bank v/s Birendra Kumar Sinha.

Case Study: Sinha had taken a loan from IndusInd Bank for purchase of a Tata truck. The loan was required to be repaid in 48 installments of Rs 27,500 each. In July 2007 the vehicle was forcibly repossessed by the bank. When Sinha asked for its release, he was asked to pay the entire outstanding loan.

Sinha filed a complaint before the Dhanbad district forum. During the pendency of the proceedings under the Consumer Protection Act, the bank initiated arbitration proceedings without the permission of the consumer forum, despite Sinha protesting against it. The bank also sold the vehicle in auction.

The district forum upheld the complaint, observing that repossession of the vehicle was illegal as Sinha had already paid Rs 1,23,000 and a balance of merely Rs 43,495 was outstanding. The bank’s appeal to the Jharkhand State Commission was dismissed, upholding the order of the district forum.

The bank filed a revision petition before the National Commission. Its main argument was the loan agreement contained a clause entitling the bank to repossess the vehicle. Vinay Kumar noted the bank was attempting to obfuscate the issue. The question was not about the right to repossess the vehicle, but the manner in which it had been done. The commission noted that in an earlier case before it involving Citicorp Maruti Finance, it had been observed that we are in a democratic country having a independent judiciary and various laws where musclemen are not to be encouraged for repossessing the hypothecated goods or vehicle for which a hire purchase agreement is executed. If musclemen are encouraged to repossess the property, it will create lawlessness and the loanee, who himself is in a financial crisis, would be helpless. It is impermissible for a money lender, financier or banker to take possession of the vehicle by use of force. This unlawful and unethical procedure is against public policy and also against the protection of public interest.

The commission also considered the case of ICICI Bank where the Supreme Court had observed that the practice of hiring recovery agents, who are musclemen, is deprecated and needs to be discouraged. Banks should resort to a procedure recognized by law to take possession of vehicles in cases where the borrower may have committed default in payment of the installments instead of taking resort to strong-arm tactics.

Impact: Consumer forums often refuse to entertain complaints about forcible repossession of a vehicle by stating that the remedy lies under the Securitization Act. This interpretation is not correct because the forcible repossession of a vehicle is a deficiency in service and an unfair trade practice for which a consumer complaint is maintainable. The judgment of the National Commission will help consumers fight for their rights against the might of banks and financial corporations.

(The author is a consumer activist and has won the Govt. of India‘s National Youth Award for Consumer Protection. His email is

The Public Interest Disclosure and Protection of Persons Making the Disclosures Bill, 2010


Commonly known as the Whistleblower‘s Bill, it seeks to establish a mechanism to register complaints on any allegations of corruption or wilful misuse of power against a public servant.  The Bill also provides safeguards against victimisation of the person who makes the complaint.

Highlights of the Bill

  • The Bill seeks to protect whistleblowers, i.e. persons making a public interest disclosure related to an act of corruption, misuse of power, or criminal offence by a public servant.
  • Any public servant or any other person including a non-governmental organization may make such a disclosure to the Central or State Vigilance Commission.
  • Every complaint has to include the identity of the complainant.
  • The Vigilance Commission shall not disclose the identity of the complainant except to the head of the department if he deems it necessary.  The Bill penalises any person who has disclosed the identity of the complainant.
  • The Bill prescribes penalties for knowingly making false complaints.

Key Issues and Analysis

  • The Bill aims to balance the need to protect honest officials from undue harassment with protecting persons making a public interest disclosure.  It punishes any person making false complaints.  However, it does not provide any penalty for victimising a complainant.
  • The CVC was designated to receive public interest disclosures since 2004 through a government resolution.  There have been only a few hundred complaints every year.  The provisions of the Bill are similar to that of the resolution.  Therefore, it is unlikely that the number of complaints will differ significantly.
  • The power of the CVC is limited to making recommendations.  Also it does not have any power to impose penalties.  This is in contrast to the powers of the Karnataka Lokayukta and the Delhi Lokayukta.
  • The Bill has a limited definition of disclosure and does not define victimisation.  Other countries such as US, UK, and Canada define disclosure more widely and define victimisation.
  • The Bill differs on many issues with the proposed Bill of the Law Commission and the 2nd Administrative Reform Commission’s report.   These include non-admission of anonymous complaints and lack of penalties for officials who victimise whistleblowers.



Whistleblowing is the act of disclosing information by an employee or any stakeholder about an illegal or unethical conduct within an organisation.

The Law Commission of India2 in 2001 had recommended that in order to eliminate corruption, a law to protect whistleblowers was essential. It had also drafted a Bill in its report. In 2004, in response to a petition filed after the murder of Satyendra Dubey, the Supreme Court directed that a machinery be put in place for acting on complaints from whistleblowers till a law is enacted.3 The government notified a resolution in 20044 that gave the Central Vigilance Commission (CVC) the power to act on complaints from whistleblowers.

Since 2004, CVC has received 1,354 complaints from whistleblowers (see Table 2). In 2007, the report of the Second Administrative Reforms Commission5 also recommended that a specific law be enacted to protect whistleblowers. India is also a signatory (not ratified) to the UN Convention against Corruption since 2005, which enjoins states to facilitate reporting of corruption by public officials and provide protection against retaliation for witnesses and experts.6

The Bill replaces the 2004 government resolution and sets up a mechanism to receive complaints of corruption or wilful misuse of power by a public servant. It also provides safeguards against victimization of the person making the complaint.

Key Features

Public Interest Disclosure

  • Any public servant or any other person including a non-governmental organization may make a public interest disclosure to a Competent Authority (defined as the Central or State Vigilance Commission).
  • “Disclosure” is defined as any complaint made in writing or electronic mail against a public servant on matters related to (a) attempt to or commission of an offence under the Prevention of Corruption Act, 1988; (b) wilful misuse of power which leads to demonstrable loss to the government or gain to the public servant; or (c) attempt or commission of a criminal offence by a public servant.
  • A “public servant” is any person who is an employee of the central government or the state government or any company or society owned or controlled by the central or state government. However, no public interest disclosure shall be accepted against defence, police and intelligence personnel.
  • Each disclosure shall be accompanied by full particulars and supporting documents. The Vigilance Commission shall not entertain anonymous complaints.

Procedure of Inquiry

  • First, the Vigilance Commission has to verify the identity of the complainant, and then conceal his identity (unless the complainant has revealed it to any other authority). Then it shall decide whether the matter needs to be investigated based on the disclosure or after making discreet inquiries. If it decides to investigate, it shall seek an explanation from the head of the concerned organisation. The Vigilance Commission shall not reveal the identity of the complainant to the head of the organisation unless it is of the opinion that it is necessary to do so. The head of the organisation cannot reveal the identity of the complainant.
  • After conducting the inquiry, if the Vigilance Commission feels that the complaint is frivolous or there is no sufficient ground to proceed, it shall close the matter. If the inquiry substantiates allegation of corruption or misuse of power, it shall recommend certain measures to the public authority (anybody falling within the jurisdiction of the Vigilance Commission). Measures include initiating proceedings against the concerned public servant, taking steps to redress the loss to the government, and recommending criminal proceedings to the appropriate authority.
  • Every public authority shall create a mechanism to deal with inquiries into disclosures. The mechanism shall be supervised by the Vigilance Commission.
  • The Vigilance Commission may take the assistance of the Central Bureau of Investigation or police authorities to make inquiries or to obtain information.

Exemption from Inquiry

  • The Vigilance Commission shall not entertain any matter (a) if it has been decided by a Court or Tribunal, (b) if a public inquiry has been ordered, or (c) if the complaint is made five years after the action.
  • The Bill exempts disclosure of proceedings of the Cabinet if it is likely to affect the sovereignty of India, security of the state, friendly relations with foreign states, public order, decency or morality. Such an exemption has to be certified by the Secretary to the central or state government.

Safeguards for Persons Making Disclosure

  • A person shall not be victimised or proceeded against merely on the grounds that he has made a disclosure or assisted in an inquiry. The directions of the Vigilance Commission are binding in this regard.
  • The Vigilance Commission may give directions to a concerned public servant or authority to protect a complainant or witness either on an application by the complainant or based on its own information. It may direct that the public servant who made the disclosure be restored to his previous position.
  • If the Vigilance Commission decides that a complainant or a witness or a person assisting an inquiry needs protection (either based on an application filed by the complaint or a witness or on its own information), it shall issue directions to the concerned government authorities to protect such persons.
  • The Vigilance Commission shall protect the identity of the complainant and related documents, unless it decides against doing so, or is required by a court to do so.


  • The Bill lays down penalties for various offences. For not furnishing reports to the Vigilance Commission, a fine of upto Rs 250 shall be imposed for each day till the report is submitted. The total penalty amount however cannot exceed Rs 50,000. For revealing the identity of complainant negligently or due to mala fide reasons, the penalty is imprisonment for upto 3 years and a fine of upto Rs 50,000. For knowingly making false or misleading disclosures with mala fide intentions, the penalty is imprisonment upto 2 years and a fine of upto Rs 30,000.
  • Any person aggrieved by an order of the Vigilance Commission relating to imposition of penalty for not furnishing reports or revealing identity of complainant may file an appeal to the High Court within 60 days.


Protection of Both Complainant and Public Official

The Bill seeks to strike a balance between protecting persons making a public interest disclosure and preventing undue harassment of public officials.7

Table 1: Comparison of protection provided to complainant and public official

Protection of complainant Protection of public official
Identity Vigilance Commission and the Head of the organisation have to protect the identity of the complainant. However, the Vigilance Commission can reveal the identity of the complainant to the Head if it is of the opinion that it is necessary to do so. Every complainant has to furnish his identity (no anonymous complaint to be entertained). No complaint made after 5 years of the action shall be entertained.
Penalty Identity revelation carries a penalty of upto 3 years and fine of upto Rs 50,000 prescribed. A false complaint carries a penalty of imprisonment upto 2 years and fine of upto Rs 30,000.
Victimisation The central government shall ensure that no complainant is victimised through proceedings against him merely because he made a disclosure. If a complainant is being victimised by a public servant, the Vigilance Commission may issue directions to the concerned public servant, including that the complainant be restored to his previous position. No penalty prescribed for public official
Appeal No appeal process specified if a complainant is penalized for false complaints. If a public official is penalized for revealing identity or obstructing investigation of the complaint, he can appeal to the high court.
Sources: Public Interest Disclosure Bill; PRS.

The protection provided to both parties raises certain issues.

Identity: The Bill does not allow anonymous complainants. But there are no clear provisions on what grounds the Vigilance Commission may reveal the identity of a complainant to the Head of an organisation. Some experts contend that allowing anonymous reporting provide protection to whistleblowers while others have expressed concern about difficulty of investigation and possibility of frivolous complaints.8 Countries such as the U.S., U.K., Canada and Australia9 have some provision to investigate anonymous complaints, while Italy and Slovakia10 do not allow anonymous complaints. However, even countries which allow anonymous complaints do not provide protection against victimisation if the identity of such a whistleblower becomes known.

Victimisation: (a) The Bill does not define what constitutes victimisation. (b) There is no penalty against the public servant who may be victimising the complainant. (c) This Bill does not provide for witness protection programme to protect witnesses during investigation and trial. The Law Commission has recommended guidelines for witness identity protection.11 Countries such as the US, Canada, Australia, Germany, Italy and South Africa have witness protection programmes.12

Penalty: The Vigilance Commission may reveal the identity of the complainant in certain circumstances (which may lead to victimisation) but the Bill does not provide for any penalty for victimising a complainant. However, a complainant may be penalised with imprisonment and a fine for making false complaints. This was recommended by the Law Commission report2 and the Cabinet Note stated that the Bill aimed to protect honest officials.7 Such provisions may deter persons from making a disclosure to the Vigilance Commission.

Appeal: The public official may appeal to the High Court against penalty for revealing identity or obstructing investigation. However, the Bill also penalises any malafide complaint, but does not specify an appeal process.

Performance of Present Mechanism

The CVC was designated to receive and act on complaints by whistleblowers through a 2004 Government Resolution. This Bill gives statutory status to that Resolution. However, as the data in Table 2 shows, the number of complaints has only been a few hundreds between 2005 and 2008.\

There is no official study that indicates whether the number of complaints reflect the level of corruption, or whether potential whistleblowers feel threatened. Given that the provisions of this Bill are similar to that of the Resolution, there is unlikely to be a significant change in the number of persons who are willing to disclose acts of corruption.

Table 2: Number of whistleblower complaints under 2004 Resolution
Year Complaints
2005 412
2006 338
2007 328
2008 276
Source: Annual Reports of Central Vigilance Commission

Powers of the Vigilance Commissions

The Central and State Vigilance Commissions shall be the nodal body to receive complaints from whistleblowers. However, their power is restricted to recommend corrective action to the public authority (including any penal action) on public officials after investigation.

Various state Lokayuktas have different powers. For example, the Karnataka Lokayukta Act states that in case a public servant is found to have committed any criminal offence, the Lokayukta may initiate prosecution without prior sanction from the concerned authority.13 The Delhi Lokayukta Act states that if the Lokayukta is not satisfied with the action taken by a competent authority on its report, he can make a special report to the Lt Governor and inform the complainant.14 The Andhra Pradesh Lokayukta and Upalokayukta Act provides a time-limit of one year to complete the investigation. Both the Andhra Pradesh and Himachal Pradesh Lokayukta Acts state that if an offence has been committed, a report is sent to the concerned authority who has to report within three months any action taken. If the Lokayukta is not satisfied with the action taken, he can report to the Governor and inform the complainant.15

Furthermore, an ARC report pointed out that there are few cases where CVC was able to initiate disciplinary action on government servants or impose major penalties.16 According to CVC’s data, between 2004 and 2008, there were 946 cases in which the department did not comply with the CVC’s recommendation on penalty.17


The Bill defines “disclosure” as a complaint related to corruption, any criminal offence or wilful misuse of power that leads to loss to the government or gain to the public servant. This definition is narrower that the one recommended by the Law Commission, which included mal-administration (any action which is unjust, causes undue delay or negligence, leads to waste of public funds). Countries such as Canada, US and Ghana have wider definition of disclosure (see Table 5).

The Bill does not define victimisation. The proposed Law Commission Bill defines victimisation to include suspension, transfer, dilution of power, adverse entries in the service record, and punishments under disciplinary rules. Countries such as US, UK, Canada, South Africa and Ghana define victimisation (see Table 5).

The Law Commission and Administrative Reforms Commission

In December 2001, the 179th report of the Law Commission of India examined the issue of whistle-blowing and made certain recommendations. The scope of these recommendations were wider that in the current Bill, as they included ministers within the purview, provided powers to the Authority to initiate criminal proceedings, and fixed a time limit. Table 3 compares the recommendations of the Commission with the provisions of the Bill.

Table 3: Comparison of the Law Commission Report and the Bill

Law Commission of India Bill
Scope Disclosure can be against Minister and public servant. Disclosure can be only against public servant.
Definitions Defines disclosure as a complaint against abuse or misuse of power; commission of an offence under any law; or mal-administration. Defines disclosure as a complaint against a public servant on commission of an offence under the Prevention of Corruption Act, 1988 or misuse of power leading to demonstrable loss to the government or gain to the public servant; or a criminal offence.
Defines victimisation. No definition.
Disclosure of Identity The name of person making the disclosure shall be revealed to the public servant unless the complainant requests that his identity be kept hidden or it is necessary in public interest. The Vigilance Commission shall not reveal the identity of the complainant to the head of the organisation except if it is of the opinion that it is necessary to do so.
Powers of Competent Authority The Competent Authority has the power to direct the appropriate authority to initiate criminal proceedings against the guilty official. The Vigilance Commission has the power to recommend measures such as initiating proceedings and taking steps to redress the loss to the government.
Time limit The Competent Authority has to complete the inquiry within 6 months to 2 years after receiving the complaint. No time limit prescribed for discreet inquiry. Time limit for explanation to be given by the concerned head of department shall be prescribed.
Burden of proof In case a complainant is victimised the burden of proof is on the employer or public servant who is accused of victimisation. No provision.
Penalty Penalty for false complaints is imprisonment upto 3 years and fine of upto Rs 50,000. Penalty for false complaints is imprisonment upto 2 years and fine of upto Rs 30,000.
Sources: 179th Law Commission Report, Bill 2010, PRS.

In 2007, the 2nd Administrative Reforms Commission (ARC) made certain recommendations related to whistle-blowing, which have not been incorporated in the Bill. It included acts of whistle-blowing in the private sector and prescribed penalties for victimising complainants. The issue of the private sector is now addressed by the Companies Bill, 2009. Table 4 compares the ARC report with the Bill.

Table 4: Comparison of the ARC Report and 2010 Bill

4th Report of the Second ARC Bill
Identity Protection Whistleblowers should be protected by ensuring confidentiality and anonymity. Makes provision to ensure confidentiality but does not allow anonymous complaints.
Private sector Should cover corporate whistleblowers unearthing fraud or serious damage to public interest. Not covered in this Bill. The Companies Bill, 2009 addresses this issue.
Penalty for Victimisation Acts of harassment or victimization of or retaliation against a whistleblower should be criminal offences with substantial penalty and sentence. No penalty for victimisation.
Sources: “Ethics in Governance,” Fourth Report of the Second Administrative Reforms Commission, Bill 2010, PRS.

Laws in other countries related to whistleblowing

Different countries protect whistleblowers in different ways. Some allow multiple agencies to receive complaints, some allow anonymous complaints, and some define victimisation and provide protection against it. Table 5 gives an overview of the laws related to whistleblowing in some countries.

Table 5: International comparison of whistleblowing laws


Definition of disclosure Authority Protection
US Violation of laws, gross mismanagement, waste of funds and abuse of authority Office of Special Counsel or Office of Inspector General Allow anonymous complaints. Protect employees from victimisation in appointment, promotion, transfer, or pay.
UK Crimes, civil offences (including negligence), miscarriages of justice, dangers to health and safety of the environment Employer, any prescribed persons, police, media or MP Allow anonymous complaints. Employment tribunal decides compensation if victimised by unfair dismissal or denial of promotion.
Canada Serious wrongdoing such as violation of law, misuse of public funds, gross mismanagement. Supervisor or Public Sector Integrity Commissioner Allow anonymous complaints. Has protection from reprisals (disciplinary measure, demotion, termination).
South Africa Criminal offence, failure to comply with legal obligations, miscarriage of justice, endangering health and safety of individuals, damaging environment, unfair discrimination. Various authorities such as legal adviser, employer, Cabinet member, and any prescribed person Right to approach court, including Labour court if subjected to occupational detriment (disciplinary action, dismissal, suspension, demotion, transfer, no reference
Australia Breach of Code of Conduct (be honest, comply with all laws, no improper use of inside information) Public Service Commissioner, Merit Protection Commissioner, Agency Head Protection against victimisation and discrimination
Ghana Impropriety such as economic crime, non-compliance of a law, likely to break the law, miscarriage of justice, mismanagement or waste of public resources. Various authorities such as employer, police, MP, Commission on Human Rights, President Allow oral or written complaints. Has right to bring action to High Court for victimisation (dismissal, suspension, transfer, harassment)
Sources: US: Whistleblower Protection Act, 1989; UK: Public Interest Disclosure Act, 1998; Canada: Public Servants Disclosure Protection Act, 2004; South Africa: Protected Disclosure Act, 2000; Australia: Public Service Act, 1999; Ghana: Whistleblower Act, 2006 and PRS


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Law to deal with sexual offences against kids tabled in RS


A government study says that 53 per cent of children below 18 years of age have undergone some or the other form of sexual victimisation. What is even more worrisome is that more than half the abusers are known to the children. The gravity of the situation today set the wheels rolling for a crucial Bill that will give the country, for the first time, a comprehensive law to deal with sexual offences against children by providing for stringent punishment of up to 10 years in jail, which may even extend to life imprisonment.Tabled in the Rajya Sabha by Women and Child Krishna Tirath, the Protection of Children from Sexual Offences Bill, 2011, will deal exclusively with sexual offences against children. It will protect children from sexual assault, sexual harassment and pornography and provide for establishment of special courts for trial of such offences and for matters connected therewith or incidental thereto.

“Sexual offences against children are not adequately addressed by extant laws. A large number of such offences are neither specifically provided for nor are they adequately penalised,” the statement of objects of the Bill said. The Bill will now be sent to the Standing Committee. The legal tool also provides for treating sexual assault as “aggravated offence” where it is committed by a person in position of trust or authority over a child, including a member of the security forces, police officer, public servant, management or staff of a children’s home, hospital or educational institution.

It will be treated as an aggravated offence where the child victim is below the age of 12 or suffers from a mental or physical disability or the sexual offence causes grievous hurt or injury to the child with a long-term adverse effect on the child’s mind and body. The punishment for such an offence would be imprisonment of up to seven years with fine. The punishment for penetrative sexual assault has been proposed to be at least five years in jail and a minimum fine of Rs 50,000. Sexual assault also includes fondling the child in an inappropriate way, which will invite a penalty of minimum three years in jail.

Section 7 of the Bill provides for “no punishment” if the consent for sexual act has been obtained with a person aged between 16 and 18 years.

Oppressor’s case


Women’s organisations rise up against a petition that seeks an amendment to Section 498A of the Indian Penal Code.

A PETITION that alleges the misuse of Section 498A of the Indian Penal Code, which has been admitted by the Rajya Sabha Committee on Petitions, has become an object of concern among leading women’s organisations in the country. The petition claims that the law, dealing with dowry-related torture and acute domestic violence, is being misused. The existing law provides for a punishment of up to three years.

The petition, filed by one Dr Anupama Singh, ostensibly on behalf of many people, has demanded that the said section be made non-cognisable, bailable and compoundable. At present, the section reads: “Whoever, being the husband or the relative of the husband of a woman, subjects such women to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.” Currently, Section 498 is the only law that victims of dowry-related torture and domestic violence can have recourse to. The fact that dowry-related violence and dowry deaths have shown no abatement in the past two decades only indicates that the existing laws have not been implemented properly and have, therefore, failed to serve as deterrents.

It is ironical that while women’s organisations are demanding new laws to deal with the multifarious types of violence against women – the latest one is a law to deal with honour-related murders – and the government is responding positively, demands are being made to dilute existing ones. Besides, a Bill dealing with the protection of women from sexual harassment at the workplace has been introduced in the Lok Sabha. Also on the anvil is a draft Bill expanding the definition of sexual assault to include child abuse as well.

The fact that the Rajya Sabha committee has entertained a petition that seeks to amend Section 498A is perceived as a regressive step. Women’s groups, including the All India Democratic Women’s Association (AIDWA), have expressed their disappointment and submitted a memorandum to the committee highlighting their concern.

The petitioner has contended that Section 498A is being widely misused, fearlessly abused, and used with ulterior motives by unscrupulous people. The abuse, according to the petitioner, has caused a lot of harassment and torture, including atrocities inflicted on senior citizens, children, women (including pregnant women) and men. The petition claims that “there are several cases of dowry death wherein the supposedly ‘dead victims’ have come back alive, and several cases where the same women has [ sic] repeatedly alleged charges under this law in each of her [ sic] repeat marriages”.

The petition portrays complainant women as veritable Delilahs and Jezebels. It pleads that the law is being misused by women to “enable a get-rich-quick-scheme to extort large sums of money from innocent families”, “as a bargaining tool by those women who indulge in adultery”, to “alienate the husband from his parents and siblings so as to gain control over his finances and social behaviour including his lifestyle”, and to “conceal true facts about the mental health and educational level at the time of marriage, thereby adopting fraudulent means to forge the alliance”.

According to the petition, when their nefarious acts were exposed, the complainant women took recourse to this law, “deflecting the needle of crime on the innocent husband and his family… this law being an exception in Criminal Law presumes the accused as guilty until proven innocent; hence the woman’s word is taken as a gospel of truth. And there from begins the saga of unending trials, tribulations and destruction of an innocent man and his family.”

The law, it says, is being misused “to enable divorce so as to revive any pre-marital relationship that the wife has had [ sic] as she may have unwillingly given her consent for marriage to satisfy her parents”; to deny custody of children to the husband and his family; and to inflict “sufferings on husband and his family to settle scores and to wreak vengeance, thereby posing a grave threat to the very existence of a peaceful family unit in society”. The petition claims that thousands of innocent families have been implicated in false cases as a complaint is enough to arrest the husband, in-laws and anyone else. It contends that this has led to the “arrest of lakhs [ sic] of innocent citizens (thousands of families), with many committing suicide as they are unable to bear the indelible stigma on their honour and reputation”.

Quoting from the National Crime Records Bureau (NCRB), the petition says that some 501,020 people had been arrested under Section 498A of the IPC from 2003-06; 294,147 of them completed trial under the Section; and 58,842 were convicted. The petition also quotes a 2005 Supreme Court order where the misuse of the law was compared to “unleashing legal terrorism”; an undated World Health Organisation (WHO) report that has apparently said that Section 498A is one of the major reasons for growing “elder abuse in India”; a Law Commission Report (154th); the Malimath Committee Report (on Reforms of the Criminal Justice System); and the 111th report of the Parliamentary Standing Committee on Home Affairs, which have apparently acknowledged that there has been widespread misuse of Section 498A.

The Malimath Committee Report made general observations in the section dealing with offences against women. It said: “There is a general complaint that Section 498A of the IPC regarding cruelty by the husband or his relatives is subjected to gross misuse and many times operates against the interest of the wife herself. This offence is non-bailable and non-compoundable. Hence husband and other members of the family are arrested and can be behind the bars, which may result in husband losing his job. Even if the wife is willing to condone and forgive the lapse of the husband and live in matrimony, this provision comes in the way of spouses returning to the matrimonial home. This hardship can be avoided by making the offence bailable and compoundable.”

The Standing Committee report, while referring to the Law Commission’s and Malimath Committee’s reports, also recommended compounding of the offence under Section 498A . It noted: “Section 498A is intended to protect the woman from the cruelty of the husband or his relative. It has been widely reported that this provision has been misused and is also harsh as it is non-bailable and non-compoundable. It is desirable to provide a chance to the estranged spouses to come together and therefore it is proposed to make the offence under Section 498A IPC a compoundable one by inserting this Section in the Table under Sub Section (2) of Section 320 of CrPC [Criminal Procedure Code], wherein it can be compounded with permission of the court.”

On the basis of the general observations of the reports, the petitioner has demanded that the section be suitably amended so as to make (1) the offence under it bailable, non-cognisable and compoundable; (2) to make it punishable for whosoever misuses it; (3) to make the misuser liable to compensate the financial loss suffered by the falsely accused in the process; (4) to make the law gender-neutral in order to protect the interests of any man or woman and (5) to ensure time-bound trial, with a six-month limit.

As far as the number of cases are concerned, very few people would dispute the figures quoted in the NCRB reports. Roughly around 80,000 cases of torture are filed every year; every minute, a woman is killed for dowry; and very few of the complaints result in convictions. For this, the poor implementation of the law rather than the law itself is to blame.

Women’s groups feel that any dilution of the law will first leave victims of cruelty in the lurch. Making the offence non-cognisable would mean that the police will not respond to any complaint made by a woman and also not investigate the matter. This would also mean that every time a woman faces domestic violence, she will have to go to the court to file a complaint before a magistrate, a process that the majority of Indian women will not find easy. The offence being bailable implies that no person can be arrested at any stage by the police without a magistrate’s order. This would mean that a woman victim could well face more physical or mental abuse without any protection whatsoever from her aggressor.

Sloppy investigation

As far as sloppy investigation is concerned, AIDWA has argued that amendments made to the CrPC in 2009 included one with regard to the powers of the police. The amendment provides that in cases that entail a punishment of up to seven years of imprisonment the police should, before arresting a person, make proper investigation. It also states that no arrest shall be made if the accused cooperates with the police and does not tamper with evidence. The onus to investigate properly before conducting an arrest is, therefore, on the police.

AIDWA, which is the largest women’s organisation in the country and has fairly long experience in dealing with issues relating to women as victims, says that the ground realities are in complete contrast to what has been presented in the petition. First, it says, women approach the police or any organisation only after going through a lot of physical and mental battery. Even when they have dared to file a complaint, it is common to find gender biases, corruption and inefficiency on the part of the police.

Second, the police have been found to take an inordinately long time to register complaints, and complainants have often had to make repeated trips to the police station. Even the specialised Crimes Against Women Cells (in Delhi and Mumbai) have not proved helpful to women complainants. AIDWA’s experience is that women are forced to attend conciliation proceedings, and the cases are normally registered after the breakdown of these. Neither do the police make attempts to recover the streedhan or dowry in time. The nature of the investigation has, by and large, been shoddy in that the statements of the complainant and other members of her family/relatives are not recorded.

AIDWA general secretary Sudha Sundararaman and legal convener Kirti Singh have demanded that complaints under Section 498A be dealt with in the same way as complaints under provisions for other serious crimes. A perusal of various judgments under this section reveals that there was hardly an instance in which the accused were held guilty under Section 498A on its own. It was only in cases where the woman had finally died that the accused were punished under this section. False complaints, the organisation said, needed to be dealt with on a case-to-case basis.


It is presumed that a law can be misused only if there is a fair degree of knowledge about it. The Associated Chambers of Commerce and Industry of India conducted a survey of 10,000 women, including working women, housewives and college girls in Delhi and the National Capital Region, and found that despite over 20 constitutional provisions for women, 70 per cent of those surveyed were not aware of their legal rights. Another questionnaire-based survey, on 2,460 young women, done by AIDWA last year in 13 States revealed that violence at home was an endemic and commonplace phenomenon. The respondents were all in the 16-30 age group.

In some States such as Tamil Nadu, all the married women surveyed admitted to violence by their husbands and in-laws. The survey findings from Uttar Pradesh were equally shocking. Of the 239 women surveyed, 132 reported domestic violence, and the trend was common across educated and uneducated families.

The majority of respondents from Mumbai and Pune revealed that remaining single was not an option; similarly, 33 of the 40 women surveyed in Rajasthan felt that marriage was essential. While most of the married women shared their experiences of domestic violence with their parents, none of them reported sharing such experiences with their in-laws. Of the 100 women surveyed in Haryana, 44 reported violence at the hands of their natal and marital family members.

The findings of various surveys conducted only reaffirm what has been known all along – that women do suffer a lot of violence in this country. The virtual absence of any marital rights makes women even more vulnerable in contemplating action against their husbands or in-laws. The latest NCRB data, which are for 2008, revealed that dowry deaths had gone up from 6,975 cases in 1998 to 8,093 in 2007; cases registered under Section 498A had risen from 41,375 to 75,930 (almost doubled), while reported sexual harassment cases had gone up from 8,053 to 10,950 in the 10-year period. There has been a steady escalation in the violence against women, that too dowry-related violence. If there had been a real decline, it would be reflected in the number of dowry deaths.

In a socio-cultural milieu that encourages a culture of silence as far as women are concerned, where getting married and staying married are extolled values, and where marriage is perceived as providing security and social respect, the possibility of a large number of women faking and falsifying incidents of violence and harassment against them is not only remote but almost improbable.

Less than activist

Judicial review of executive action is not unique, but the remedy in the CVC case is a departure from the court’s record of approach to corruption.

Madhav Khosla in The Frontline


Supreme Court of India

THE Supreme Court’s decision to declare the appointment of Chief Vigilance Commissioner (CVC) P.J. Thomas as non-existent in law has stimulated much debate. The political fallout of the ruling has been widely studied, with pundits pondering over how seriously it may impact the Prime Minister‘s reputation. But the court’s decision deserves close scrutiny on questions exogenous to the political implications it may carry. In particular, the decision invites us to revisit the debate on judicial activism, which dictates contemporary analyses of the Indian Supreme Court. How can the CVC verdict best be characterised, and in what way can it inform our understanding of how the Supreme Court operates?

Over the past two decades, there has been an outpouring of literature characterising the Supreme Court as an activist institution. Wide-ranging judgments on questions of social justice and political decision-making, facilitated by the invention of public interest litigation, have helped encourage this characterisation. Indeed, it is now commonly assumed that the court fills a governance deficit that politics has created. However, the real story is far more nuanced. Although there has been a genuine expansion in the formal powers of the judiciary, we have noticed very few instances in which the court has actually gone the whole hog. In most cases, its effort has been to nudge government action, and its acts have been more rhetorical than substantive.

So, for instance, we find several decisions that attack corruption, but one can barely find any judgments that seriously punish corrupt politicians. The court’s jurisprudence has played, more than anything else, an expressive role. It helps to create awareness, initiate a change in social meanings, and perhaps even articulate constitutional aspirations. This expressive role is important, and it has its place in modern constitutional democracies; but it is vital that we do not overestimate its character.

Take, for instance, the question of social rights. In such cases, the Supreme Court adopts a far weaker approach than we believe. It enforces no systemic right; no person has the right to a certain minimum degree of a social service such as housing or health; neither does our citizenry have a right to ask that the state undertake reasonable measures to deliver such services. Rather, the Supreme Court adopts a conditional approach; an approach that makes the existence of a right conditional upon action taken by the state. So, for example, the court will often ask whether a hospital that has been built is functioning effectively, but it will never ask the state to build more hospitals. It will only review and enforce a right based on state action already undertaken, thereby meaning that the remedies awarded are modulated according to the conditionalities in operation. This approach exemplifies the expressive role that the Supreme Court plays.

Studied in the light of this generally reticent approach that the court actually adopts, the declaration striking down the CVC’s appointment is a rare one. Appointed by the President of India, following a recommendation by a High Powered Committee constituting the Prime Minister, the Minister of Home Affairs and the Leader of Opposition in the Lok Sabha, the post of the CVC is one of considerable prestige. The judicial review of executive action is not unique. But the remedy in this case, particularly given the high threshold that is ordinarily set for a violation in such instances, is unexpected and is a departure from the court’s previously lacklustre approach to corruption.

Yet, those who champion the decision fail to appreciate its narrow character. As some constitutional experts have observed, a careful study of the case reveals that it does little. The court struck down the recommendation of the committee that was tasked with the CVC’s appointment. But this was not because the committee’s decision was unreasonable. The court did not enter into the substantive merits of the decision-making process. Rather, it found the decision to be non-est in law on a thin procedural ground: the facts material to the candidature of P.J. Thomas had not been considered by the committee.

So, for example, the committee did not consider a first information report that had been registered against Thomas, a certain report by the Comptroller and Auditor General, and so on. Thus, a failure to adopt an appropriate process vitiated the ultimate decision taken by the committee. Judicial review on this narrow ground should make us pause before we celebrate the Supreme Court’s ruling and the role that the institution performs in our democracy. The court’s decision does not establish a broad and novel principle of law, and it would be a gross exaggeration to term the decision as one which is activist.

Moreover, the CVC verdict indicates that it is time we abandoned the “activist” metaphor altogether. The metaphor is used to critique judicial decisions but is not justified through any accepted theory of legal interpretation. That is to say, decisions are sometimes branded as activist because they move beyond a strictly textual reading of a legal source; at other times, the metaphor is used when a decision may depart from precedent; at some moments, it is embraced to condemn a decision on institutional grounds – on the grounds that the judiciary has taken an action that should legitimately be taken by elected representatives, and so on. There is no clear understanding of what kind of critique the term “activist” truly levies, and it consequently becomes a convenient way to denounce a decision that one finds personally unfavourable.

Further, if we move beyond singular notions of activism and the above difficulty to adopt a holistic understanding of judicial activism, we notice that the term clouds the reality that judicial decisions are multifaceted in nature. They often have strands of activism and restraint. The CVC judgment provides an excellent case in point. On the one hand, the decision strikes down a public appointment, an outcome that the court is not known to typically deliver. In this respect, it will not be very unfair to characterise this aspect of the decision as one that is activist. And yet, the decision is carefully founded on a narrow ground, it involves no substantive review, and the court is cautious in ensuring that it can find only very limited application in future cases. In this respect, then, one can imagine the decision being understood as exhibiting restraint.

This aspect of the decision may well prompt some disappointment. While the court did establish principles for future CVC appointments, it did not go further and establish a general legal principle for how charges of corruption must be dealt with in all public appointments of this nature. In this respect, it is certainly true that the decision has not led, as commentary on the decision observed, to the court rescuing Indian democracy.

But it may be worth being measured about such disappointment. The court is at present swimming in rough waters. Chief Justice S.H. Kapadia has inherited a Supreme Court that is increasingly fractured, speaks in many voices, and is in genuine danger of lacking an institutional identity. Narrow rulings can be risky; taken to their extreme they can inhibit the coherent development of law and disturb the consistency that is the law’s chief claim to authority. But in moments of political tension, where the political legitimacy of the court is often questioned, narrow rulings may be more effective than broader ones. Rather than viewing this as an instrumentalist argument in favour of the court’s approach, it is simply a reminder that it is sometimes unwise if not risky for judges to do too much. Indeed, the remarkable political acceptance that the decision has received may have something to do with the fact that the court did not disturb more appointments than were immediately necessary. Moreover, the reaction to the decision may also be useful in analysing the activist content of the decision, if a multifaceted understanding of this phenomenon is embraced.

Other than the CVC, who has observed that he will be challenging the ruling, it has been respected across political parties. The absence of any social or political backlash to a decision lends support to the claim that the decision is not unabashedly activist.

Finally, it is interesting to notice how the court’s reasoning illustrates the peculiar irony of the CVC controversy. The court took the position that the recommendation did not exist in law because material facts were not considered by the committee. This reasoning enabled it to defend the decision on grounds of procedure rather than substance. If the government’s position had been that the facts in question were considered but for mitigating reasons ultimately rejected, the court may well have been unable to review the recommendation on such strict reasons of procedure. Such a situation would have forced the court to engage in a substantive review of the recommendation if it had to strike it down, and it may well have refused to travel such an extraordinary distance.

But if the government had taken the position that it knew of the allegations against Thomas and yet decided, on balance, to appoint him, it would have meant political suicide. In other words, the stance that enabled the government to make a defendable political claim prevented it from making a defendable legal one.

Madhav Khosla, a Yale Law School graduate, is at the Centre for Policy Research, New Delhi. His study of the Supreme Court’s approach to social rights, “Making Social Rights Conditional”, is forthcoming in International Journal of Constitutional Law.