Stamp out khap panchayats: court

J. Venkatesan in THE HINDU

Casteism is one of the main causes holding up the country’s progress

Calling a person by caste name, if used with intent to insult, is an offence under SC/ST Act

Society regarding a section of its own countrymen as inferior is simply unacceptable

New Delhi: While deprecating the caste system in the country, the Supreme Court has declared illegal ‘khap panchayats’ which often decree or encourage honour killings or other institutionalised atrocities against boys and girls of different castes and religions who wish to get married or have married.

“This is wholly illegal and has to be ruthlessly stamped out. There is nothing honourable in honour killing or other atrocities and, in fact, it is nothing but barbaric and shameful murder. Other atrocities in respect of the personal lives of people committed by brutal, feudal-minded persons deserve harsh punishment. Only this way can we stamp out such acts of barbarism and feudal mentality. Moreover, these acts take the law into their own hands, and amount to kangaroo courts, which are wholly illegal,” a Bench of Justices Markandey Katju and Gyan Sudha Misra said on Tuesday.

Sentence upheld

The Bench upheld the sentence of two-year imprisonment, including six months’ imprisonment under the SC/ST (Prevention of Atrocities) Act, 1989, awarded by a trial court to Arumugam Servai, who called a member of a Scheduled Caste community by his caste name, ‘Pallan‘. It dismissed his appeal against a Madras High Court judgment.

Writing the judgment, Justice Katju said: “The word ‘Pallan’ no doubt denotes a specific caste, but it is also a word used in a derogatory sense to insult someone. Even calling a person ‘Pallan,’ if used with intent to insult a member of the Scheduled Caste, is, in our opinion an offence under the SC/ST PoA Act.”

Jefferson’s ringing words

The court quoted Thomas Jefferson in the American Declaration of Independence, 1776 saying “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator by certain inalienable rights that among these are life, liberty, and the pursuit of happiness.”

The Bench said: “Over two centuries have passed since Thomas Jefferson wrote those memorable words, which are still ringing in history, but a large section of Indian society still regards a section of its own countrymen as inferior. This mental attitude is simply unacceptable in the modern age, and it is one of the main causes holding up the country’s progress.”

Two-tumbler system

The Bench also expressed its anguish over the two-tumbler system prevalent in many parts of Tamil Nadu. “This system is that in many tea shops and restaurants there are separate tumblers for serving tea or other drinks to Scheduled Caste persons and non-Scheduled Caste persons. In our opinion, this is highly objectionable, and is an offence under the SC/ST Act, and hence those practising it must be criminally proceeded against and given harsh punishment if found guilty. All administrative and police officers will be accountable and departmentally proceeded against if, despite having knowledge of any such practice in the area under their jurisdiction, they do not launch criminal proceedings against the culprits.”

Condemning honour killings and khap panchayats, the Bench directed the administrative and police officials to take strong measures to prevent such atrocious acts. “If any such incidents happen, apart from instituting criminal proceedings against those responsible for such atrocities, the State government concerned is directed to immediately suspend the District Magistrate/Collector and the SSP/SPs of the district as well as other officials concerned and chargesheet them and proceed against them departmentally if they do not prevent the incident if it has not already occurred but they have knowledge of it in advance, or if it has occurred, they do not promptly apprehend the culprits and others involved and institute criminal proceedings against them, as, in our opinion, they will be deemed directly or indirectly accountable in this connection.”

The Bench directed that a copy of this judgment be sent to all Chief Secretaries, Home Secretaries and Directors-General of Police in all States and Union Territories, and circulated to all officers up to the level of District Magistrates and SSP/SP for strict compliance. A copy would also be sent to the Registrars-General/Registrars of all High Courts who would circulate it to all judges.


Jan Lokpal: an alternative view

K.N. Panikkar  IN THE HINDU

Given the scale of corruption in India, the constitution of a Jan Lokpal will be a welcome initiative. But the proposed Lokpal has the makings of a super-monster.

After 42 years of hesitation and uncertainty, an institutional mechanism to deal with the all-pervasive incidence of corruption in India is in sight. What apparently moved the state machinery was the agitation spearheaded by Anna Hazare, which drew spontaneous support primarily in the metropolitan cities. Within five days of Anna Hazare starting a ‘fast unto death’ at Jantar Mantar in New Delhi, the Government of India conceded his demand to constitute a committee to draft a bill to establish the institution of a Lokpal at the Centre.

This was quite different from the past practices of the Indian state. Remember Potti Sriramulu, who at the end of a prolonged fast sacrificed his life for the formation of Andhra Pradesh. And Irom Sharmila has been on a hunger strike for more than 10 years, demanding the repeal of the Armed Forces (Special Powers) Act.

Nevertheless, the developments leading to the constitution of the committee to draft a Lokpal bill, and the provisions of the draft bill, raise fundamental questions about the working of Indian democracy. Some of these questions demand urgent attention before a bill is piloted in Parliament.

In the matter of deciding the composition and the terms of reference of the committee, Anna Hazare appears to have exercised decisive influence. He chose the “representatives of civil society” and the government accepted his suggestions. The committee consists of five “representatives of civil society,” and five Union Ministers representing the government. Welcoming the initiative, the Prime Minister has said that the “coming together of the government and civil society is a step that augurs well for democracy.” But it should be apparent that no democratic principle was followed in the constitution of the committee. The civil society representatives were handpicked by Anna, and the government nominees do not reflect the diverse political opinion that is represented in Parliament.

A Magsaysay award winner, Anna Hazare brought to the movement against corruption his considerable reputation and the moral strength derived from his social work in a village in Maharashtra, Ralegan Siddhi. But the methods he has adopted to press his demand have raised eyebrows. Many people believe that the hunger strike he undertook and the ultimatum he served were coercive in nature and have no place in a democracy. The attempt made by some of his followers to equate him with Gandhiji need not be taken seriously, as neither his ideas nor his methods justify such a claim. Nevertheless, his Gandhian credentials have earned him recognition from the state and civil society. Although he claims to be apolitical, he entertains a deep distrust of politics and politicians.

Paradoxically, he has sought the help of the political system to deal with the malaise of corruption. If he had chosen the moral path, he would have addressed the social conditions that made corruption possible. Yet, supported by a few civil society activists and projected by a section of the English media as a saviour of the nation, Anna acquired a larger-than-life stature that appeared to have punctured the government’s self-assurance.

His agitation has been lionised by some people as a second freedom struggle. But it appears to have escaped general notice that “the assertion of a few to represent the majority” without any representative character is essentially anti-democratic. The emotional, even unthinking, support that Anna Hazare commanded is understandable, given the widespread corruption indulged in by the political elite and the bureaucracy.

However, it is the timing of the agitation rather than the moral content of the campaign that accounts for the popular response. The neo-liberal policies pursued by the ruling elite had opened up the possibility of corruption in the massive transfer of public assets and the promotion of corporate interests through political patronage. Both the National Democratic Alliance led by the Bharatiya Janata Party and the United Progressive Alliance under the leadership of the Congress were bedfellows in promoting privatisation and inviting foreign capital to modernise India. The unprecedented levels of corruption in recent times are a concomitant of the economic conditions created by liberalisation.

Corruption is a complex issue that is embedded in bureaucratic rigidity and issues of economic access and political power. In this sense, the state is the main promoter of corruption. It cannot be reduced to a question of morality alone, nor can a solution be found by punishing individuals as a deterrent. Such a solution, however, will be most welcome to the state and its functionaries, and even to the liberal intelligentsia. It appears that corruption is a great unifier. For Anna Hazare’s anti-corruption platform attracted the former police officer Kiran Bedi and Arya Samaj leader Swami Agnivesh, along with communalists like Ram Madhav and religious entrepreneurs such as Baba Ramdev and Sri Ravi Shankar on the same platform. Not only were communalists and rightwing elements part of his entourage, but Anna extended his ‘blessings’ to the likes of Narendra Modi by praising the Gujarat model of development, ignoring in the process the moral problem that is so dear to his heart.

It is tragic that a person who believes that morality is neutral is being celebrated as the ‘saviour’ of the nation in some quarters, including the government. But the state’s favorable demeanour towards Anna is not surprising. So long as Anna Hazare, or for that matter anybody else, does not raise systemic and institutional issues, and only champions reformist measures, the state will have no problem in promoting them. In fact, the state’s attempt will be to ‘instrumentalise’ them.

As a result, Anna Hazare and his committee may end up as apologists for the state-run machinery of corruption. For it is not the absence of law that prevents action against the guilty, but the absence of a political will to do so. For a crisis-ridden government, the periodic appearance of the likes of Anna Hazare, and their reformist agendas, are safety valves. The government functionaries who are sharing the table with Anna now may help create another fortress around the beleaguered state.

The committee that was quickly constituted on the basis of mutual consent between Anna and the government has started its deliberations. More than one draft bill was presented at its first meeting, and therefore it is premature to discuss the provisions. Yet, there are some visible directions. Anna Hazare’s authoritarian approach to social problems, as is evident in the social ambience created in Ralegan Siddhi, and the principle of centralisation of authority that the state follows (in the matter of the National Council for Higher Education and Research Bill, for instance) find a common resonance in the drafts. They envision the Lokpal functioning in a social vacuum as a super-judicial authority, undermining the existing judicial system — which, all said and done, has withstood the pressures and preserved the rights of citizens. There is nothing in the draft to suggest that the Lokpal will bring to bear a greater sense of transparency and accountability of the system than what the existing institutions have so far achieved.

The aim of the bill is not to prevent corruption but to punish the corrupt. In this respect, the draft does not provide an approach that is qualitatively different from that of the existing institutions of the state. Only when a transparent system is put in place will the prevention of corruption become possible. Social audit does not necessarily create such transparency. The process of decision-making has to be fundamentally altered in order to ensure transparency. The targets should be the conditions that make corruption possible; that requires a complete overhauling of the existing mode of government management.

Given the scale and influence of corruption in India, the constitution of a Jan Lokpal will be a welcome initiative. But the proposed Lokpal has the makings of a super-monster. By absorbing all existing anti-corruption agencies, the Lokpal will have complete powers of independent investigation and prosecution. It will be an institution with overriding powers — but without any accountability. As such, it goes against all norms of democratic functioning. If the Jan Lokpal is to live up to its jan character, its authoritarian and centralised structure should be dispensed with and it should be turned into an instrument of people’s empowerment. A beginning towards this end should be made at the formative stage itself by sending the draft bill to every panchayat for discussion, so that nation’s conscience is truly aroused.

(Dr. K.N. Panikkar, a former Professor of the Jawaharlal Nehru University, is at knpanikkar

‘A gigantic institution that draws powers from a statute based on questionable principles’

Efforts to establish an Ombudsman-type institution in India started with the recommendation of the first Administrative Reforms Commission under the chairmanships of the late Shri Morarji Desai and the late Shri K. Hanumanthaiah during the 1970s. Bills were introduced in Parliament more than once, but we have not yet been able to bring about a consensus of views on what an Ombudsman-type institution, namely the Lokpal, should look like and the kinds of powers that should be vested in it. Even as the government is working on a draft bill, some civil society actors have come up with a draft Jan Lokpal bill demanding the establishment of a strong Lokpal that will tackle both corruption and maladministration that plague the government at various levels. Citizens can make complaints to the Lokpal directly about any act or omission that constitutes an offence under the Prevention of Corruption Act, 1988, against any public servant, including the prime minister, ministers of various ranks, members of Parliament, all government servants and employees of statutory corporations. Powers of inquiry, investigation, prosecution, oversight, enforcement of orders, tapping phones and intercepting messages, confiscating property, etc are all proposed to be vested on a single authority, namely the Lokpal. Such privileging of a single authority with wide-ranging powers and functions is unparalleled in the country’s legislative history and is perhaps unwise. An examination of the provisions contained in the Jan Lokpal bill 2011 (version 2.2) gives rise to the following major areas of concern:

Combining investigation and prosecution powers in the Lokpal: The combination of powers to investigate and prosecute public servants for offences of corruption goes against the basic principle of the separation of these two functions in the criminal justice system, which was accomplished as far back as in 1973. A prosecutor is an agent of justice and an officer of the court. He or she must apply an unbiased and independent mind to the case prepared by the investigating officer. Such independence may not be possible if the prosecution agency is under the overall control of the Lokpal.

 Vagueness of definitions: Certain terms as defined in the draft bill are vague. For example, “vigilance angle” includes within its ambit acts such as “exercise of discretion in excess”, “indulging in discrimination through one’s conduct directly or indirectly”. These are loose expressions of noble intent, but can cause havoc during application and judicial interpretations. Similarly, a whistleblower is defined as a person who faces a threat of professional or physical harm, or has been actually harmed for making a complaint to the Lokpal, or for making a request for information under the Right to Information Act, 2005. This is more restrictive than the definition of a whistleblower contained in the 2010 bill pending in Parliament. The mere making of a public interest disclosure of wrongdoing is adequate for the purpose of being identified as a whistleblower under that bill.

Selection committee: The draft bill requires that two of the youngest judges of the Supreme Court and two youngest chief justices of high courts to be part of the selection committee for the Lokpal. While the principle of length of service… which itself contributes to experience and knowledge guides the idea of having the seniormost judges on such panels, the underlying principle of choosing the youngest judges is not very clear. What criteria will be applied in this regard — actual age of the judge, or the length of service?

 Appointment of the Lokpal: Clause 8(11) gives a high degree of finality to the list of names recommended by the selection committee for filling up vacancies in the Lokpal. The president is required to only sign on the dotted line. The president must be allowed the space to satisfy himself/herself that the procedure for selection as laid down by the law has indeed been observed and the best candidates have been selected through due process. If these criteria are not fulfilled, the president must have the power to request the committee to reconsider its recommendations. The inclusion of the outgoing members of the Lokpal in the committee will needlessly inflate its size with no major purpose. The outgoing members may instead be consulted informally before the final list of candidates is prepared.

Videographing the selection process: The draft bill envisages the videographing of the entire selection process and making it public. While interviews of candidates may be made public, the committee must be allowed the space to deliberate in confidence while making a final decision. The outcome of the discussions and the reasons for selection may indeed be made public but if the deliberations are also made public, the candour and freeness of the discussions are likely to be affected adversely.

 Lokpal fund: The draft bill envisages the creation of a fund into which all penalties and fines imposed by the Lokpal and 10 per cent of the monies confiscated will be deposited. The Lokpal will have absolute discretion to use these funds to enhance or upgrade the infrastructure of the Lokpal. This provision ignores the principle of legislative oversight over the manner of spending of funds collected from the public. Insulating large sums of money from parliamentary scrutiny does not lead to stronger mechanisms of accountability.

 Independence of the judiciary: The draft bill in a few places encroaches upon the constitutionally guaranteed independence of the Supreme Court. The provision relating to removal places several restrictions on the inherent powers of the Supreme Court to determine the number of justices who will hear a case or even dismiss a case in liminae.

Further, the draft bill brings all justices of the Supreme Court and the high courts under the ambit of the Lokpal. Offences of corruption are better handled by a separate body such as a national judicial accountability commission. Clauses 17 and 18 of the draft bill give powers of appeal to the Lokpal over all the actions of the justices of the Supreme Court and the high courts. A mere allegation of mala fide against a judicial body is adequate for the Lokpal to start an inquiry or investigation into the actions of judges. This is entirely undesirable as it violates the principle of independence of the judiciary which enables judges to act without fear.

 Power of review over executive decisions: Clauses 8 and 17 turn the Lokpal into a civil court that will reverse the decisions of the executive such as grant of licences, permits, authorisations and even blacklist companies and contractors. This is not the job of an Ombudsman-type institution. Instead, the Lokpal must make recommendations to the public authority to take such actions and any failure to comply with must be dealt with by the Lokpal by approaching the appropriate court for issue of an enforcement decree.

 Transparency must be balanced with other public interests: It is laudable that the draft bill places a lot of emphasis on transparency in the proceedings of the Lokpal. However, the draft bill fails to balance this public interest with other important public interests such as the right to privacy and reputation. In our society, it is not uncommon for persons accused of offences to be stigmatised even though they may eventually be acquitted by a court of law. It is important to ensure adequate balance between the need for transparency and the need to protect privacy and reputation of individuals.

 Extraordinary powers of the Lokpal: The draft bill seeks to vest enormous powers in the Lokpal such as telephone tapping, issue of letters rogatory, confiscation of property for making false assets statements, etc. While these powers may be necessary for tackling corruption, there must be adequate checks and balances to prevent their misuse. Lord Acton famously said: “All power tends to corrupt; absolute power corrupts absolutely.” The draft bill does not provide for appeals against most actions and orders of the Lokpal. This is a major lacuna. Letter rogatory unless issued by an independent court may not be valid in external jurisdictions. The efforts to tackle corruption in extra-territorial jurisdictions may come to naught merely because of this provision. The draft bill also lacks procedural safeguards save the requirement of giving a hearing to a public servant prior to confiscation of property.

The Lokpal in effect will be the investigator, prosecutor and enforcer of its will. When coupled with the powers to punish for contempt and in the absence of an appellate body the draft bill in fact creates a gigantic institution that draws its powers from a statute that is based on questionable principles.

 Extracted from notes presented at a public consultation on the Lokpal Bill at the Nehru Memorial Museum and Library on April 16.  Justice Shah retired from the Delhi high court in 2010. Nayak is co-convenor of the National Campaign for People’s RTI