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‘Government has not conceded anything’

Posted in ANNA HAZARE CAMPAIGN, CONSTITUTION, CORRUPTION, DEMOCRACY, FUNDAMENTAL RIGHTS, JAN LOKPAL by NNLRJ INDIA on September 6, 2011
Anna Hazare - Delhi

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FRONTLINE

CONSITUTIONAL expert and former Lok Sabha Secretary-General Subhash Kashyap says that the government has not conceded much, that it has not committed itself to anything, and that Team Anna has not gained much on its demand for the acceptance of a Jan Lokpal Bill. The only achievements of the fortnight-long agitation are public awakening and the fact that the issue of corruption has been placed centre stage. “It is still a long road ahead,” he said in an interview to Frontline. Excerpts:

The upsurge of support for Anna Hazare and the fact that Parliament held a sitting on a holiday to discuss the issues raised by him do herald the beginning of something big. What exactly has been the net outcome of the unprecedented anti-corruption movement?

Unprecedented no doubt it was because never before has Parliament held a sitting on a holiday to discuss an issue raised by a non-political entity. The issue had gripped the nation’s imagination for over 12 days. It was also unprecedented in the sense that never before has public support for any cause been so humongous. The government initially appeared in no mood to give in to Anna Hazare’s demands. But let us not get carried away by all this because the net outcome is tenuous in nature, to say the least. No substantive achievement has been made as far as acceptance of the demand for a Jan Lokpal Bill is concerned.

Why do you say this when Parliament has committed itself to accepting the three demands put forth by Hazare?

If you look at the ‘sense-of-the-House‘ resolution closely, you will notice that it was no resolution as such; so the House as such has not resolved anything. At best, it was only an ‘in principle’ agreement with the three demands, which have merely been ‘forwarded’ to the Standing Committee for its ‘perusal’. Hence, the government has not committed itself to anything, Parliament has not committed itself to anything, and the sense-of-the-House resolution forwarded to the Standing Committee is not binding on it. So, in strict legal or constitutional terms, the sense of the House has no meaning whatsoever, except a moralistic one. The committee may or may not honour it. So, in effect, the government has not conceded anything to Team Anna. It has stuck to its position that whatever it had to say would be put forth to the Standing Committee, which will take cognisance at the time of studying the Lokpal Bill.

Then why is the entire exercise being dubbed as a “victory of democracy”, as if this was history in the making?

It was history in the making in a different sense. It was for the first time since Independence that the government, and Parliament, was seen to be succumbing to public pressure, that it actually conceded that people too should be taken into account while drafting legislation. For the first time, people were seen to be taken seriously by the political class. Also, the fact that the entire exercise brought the issue of corruption to the fore makes it significant. But let us not lull ourselves into believing that this is a big victory against corruption. It is just the beginning. The proposed law will only be a curative solution, it will not attack the causes for corruption, nor will it prevent corruption. For that we need wide-ranging systemic reforms in all sectors.

If this is the case, what explains the massive support for the cause?

Dissatisfaction with the government, which has never been so pronounced, except during the Emergency in its second year. The situation today is akin to what Marx says, ‘the state has withered away’. There is total chaos, people are fed up with high prices, there is corruption at every level, there is massive governance deficit, the government has failed the people at all levels. It was a tailor-made situation for such an outpouring. People genuinely believed that they were participating in the second freedom struggle, to rid the country of corruption. But let me warn you, one such Bill cannot be the panacea for all that is wrong with the system. And let me also warn you that one should not be overambitious in expecting the re-drafted Lokpal Bill to include all these suggestions. It may or may not happen.

So what have we achieved, finally?

Anna Hazare has broken his fast! I am sure we will need him for many more such mobilisations in this fight against corruption.

Source: http://www.frontline.in/stories/20110923281901800.htm

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‘Genuine movement’

Posted in ANNA HAZARE CAMPAIGN, CONSTITUTION, CORRUPTION, DEMOCRACY, FUNDAMENTAL RIGHTS, GOVERNANCE, JAN LOKPAL by NNLRJ INDIA on September 6, 2011
Arun Jaitley

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VENKITESH RAMAKRISHNAN & AJOY ASHIRWAD MAHAPRASHASTA IN THE FRONTLINE

Interview with Arun Jaitley, BJP leader and Leader of the Opposition in the Rajya Sabha.

THE interventions in the monsoon session of Parliament by Arun Jaitley, the Leader of the Opposition in the Rajya Sabha, have been rated as “masterly” by a large number of seasoned Parliament-watchers. During the course of these interventions, which saw him make important observations on the legal and constitutional dimensions of the issues relating to corruption and the Lokpal Bill, the Bharatiya Janata Party leader also adopted the role of an “in-depth political analyst and visionary” who had cast off the limitations of a “narrow, sectarian politician”. In this interview to Frontline, Jaitley elaborated on these interventions and delineated his understanding of the future course of action on issues such as the Lokpal Bill. Excerpts:

Parliament has conceded three points raised by Team Anna on the Lokpal Bill, and the Standing Committee is going to look at the provisions of the Bill. What will be the broad road map on the issue?

Logically, all issues and viewpoints on which parliamentary consensus was built up after the recent debates will be placed before the Standing Committee. The committee should hold extensive public consultations and come out with a report expeditiously so that the final draft, with amendments, can be approved by the Cabinet. Hopefully, the government will introduce the amended Bill in the winter session.

What is the BJP’s position on the Lokpal issue?

There are two underlying principles that should guide the issue. There should be wide scope for government offices coming under the Lokpal’s jurisdiction. It should be a strong, independent Lokpal. The judiciary should have an alternative mechanism, where I prefer the National Judicial Commission. The appointment mechanisms should be completely independent; not excluding the government, but the government should not be able to be dominate or control it. So it should be an institutional mechanism. And it should be a mechanism where we are able to eventually bring in various other institutions. The institution of Lokpal should follow fair procedures. For instance, we should be able to bring in [under its purview] civil servants who work in state instrumentalities.

The only other factor that should be taken into consideration is that the Lokpal Bill should be consistent with constitutional requirements. There are four areas that need to be stressed in this connection. One, when you deal with the judiciary, you have to keep it independent of the executive. Therefore, the mechanism for the judiciary should be separate and not executive-centric.

Two, the principles of federal polity enshrined in the Constitution should not be affected by the Lokpal Bill. The Centre pressing for Lokayuktas in the States can compromise the federal principles of the Constitution. For instance, can the Centre legislate on a law dealing with State bureaucracy? My prima facie view is that with regard to some criminal law procedures, the Centre can, but not with regard to disciplinary and inquiry procedures against the State bureaucracy. The Centre can at best pass an enabling law under Article 252 of the Constitution [Power of Parliament to legislate for two or more States by consent and adoption of such legislation by any other State] or a model law, but not a binding law. The States will have to do it. Therefore, the fight against corruption should not compromise the federal principles. I have already spoken about the issue to Team Anna.

Three, in relation to the conduct of the Members of Parliament inside the House, the Bill should be consistent with Article 105 of the Constitution [power and privileges of the Houses of Parliament and of the members and committees].

Four, in relation to who takes disciplinary action – those who hold a civil post in the Central and State governments have protection under Article 307; that constitutional protection should not be affected.

Now, having covered all these areas, we can say that the Prime Minister should be covered but we can exclude certain functions; functions predominantly in the areas of public order and national security.

There is a suggestion that the functions of intelligence agencies relating to external affairs should not be covered. These are issues that should be fine-tuned by the Standing Committee.

There are other questions, too. Such as whether the entire bureaucracy should be covered and whether it should be entirely under the Lokpal. I think we would like the entire bureaucracy to be accountable. But the government has said there can be a splitting of functions in which the lower bureaucracy can come under the Central Vigilance Commission. There is a third proposal, that the lower bureaucracy can be put under a CVC, which in turn could be monitored by the Lokpal.

Should MPs be covered? Yes, obviously, but what they say inside the House, protected by the privileges of Article 105, should not be covered. These are issues of workability and accountability, which the Standing Committee can look into keeping the major principles in mind.

I have objected to only one point that is found in both the Bills [the Jan Lokpal and the government’s Bill], that is, the bugging of telephones. This can compromise national security. It violates personal liberty. I hope the Standing Committee will consider this.

The idea of attaching property of those charged with corruption has also raised objections.

There are already laws in some States that address this issue. There is a law of 1945 called Criminal Law Amendment Ordinance. The principle behind attaching property is that you cannot profit out of corruption. The court can attach corrupt money, not an executive authority, and use it for national development. The money should not wither away or you should not be able to dispose of the corrupt money. Proceeds of narcotics and smuggling money are invested in the state. Why not in the case of corrupt money? Bihar has brought this law. Other States are following suit.

There is a view that the BJP has spoken in different voices, especially with regard to the Jan Lokpal Bill.

The positions I have enunciated in Parliament are the party’s positions.

 Several votaries of the Jan Lokpal Bill hold the view that the existing anti-corruption laws are completely faulty and inefficient. Do you agree?

I think to say they are completely faulty may not be correct. They are a bit lax, a bit liberal, and capable of misuse. At times the law works, at times it does not. Seeing the enormity of corruption, you do not see so many people punished. A Lokpal may not be able to eliminate corruption but the fear of the Lokpal and of being tried under a fair mechanism may certainly be some kind of a deterrent.

Do you think this movement has created an unprecedented public sensibility?

I think this movement was genuine. No major parties participated. Sympathisers and workers did join it, but in their capacity as citizens. It was genuinely a citizens’ movement. It had a lot of goodwill. Such kind of consciousness is a positive development in India.

Do you subscribe to the view that such protest methods are symbolic of bypassing representative democracy?

I do not think it is fair to say that they were bypassing [representative democracy]. They were not saying they had the power to legislate, and not Parliament. Yes, they did bring pressure on Parliament. But we should treat them as a pressure group. They have the right to campaign and we have an obligation to listen to them. I think the government did not have a game plan. I have spoken to Team Anna at least three times. And on most issues, I have found its stand to be extremely reasonable, and after a little diversion we have converged on the same opinion. On the question of excluding certain functions of the Prime Minister, we are of the same view. Regarding the judiciary, we are of the same opinion also.

 There is a feeling in many quarters that the political class as a whole has lost the moral authority in the context of the movement.

I do not think this is fair. You see, there is a campaign against the political class. The campaign is also against Parliament. I still believe that there are still a large number of good and honest people in various political parties. There are aberrations also. But there is still a space for decency and ethics in politics and that space is being encouraged by such strong public opinion. There is no reason to be cynical. But if you pick up each one of the debates in Parliament in this session, I can tell you some of the debates have been exemplary. For instance, if you see the debate on the day Anna Hazare was arrested, or on the Lokpal Bill, or the impeachment debate, the quality has been very good. The fact is that if private television channels feel that the debates are bringing them TRPs and they cut out to Parliament for speeches, that itself means that people are interested. The stronger the public opinion, the more the viewership of parliamentary speeches, both in the electronic and the print media.

Provocative statements are being made against Parliament. We must not be vindictive in our actions even then. We should not make angry reactions or get provoked. What we do on the issues will be our response to the people. Even without this movement, States such as Madhya Pradesh, Bihar, Uttar Pradesh, Punjab and Himachal Pradesh have brought out Citizens’ Charters. This is a significant response and this is the way it should be.

http://www.frontline.in/stories/20110923281901400.htm

Legal concerns

Posted in ACCOUNTABILITY, ANNA HAZARE CAMPAIGN, CONSTITUTION, CORRUPTION, DEMOCRACY, GOVERNANCE, JAN LOKPAL by NNLRJ INDIA on September 6, 2011
JAN LOKPAL BILL

JAN LOKPAL BILL

V. VENKATESAN IN THE FRONTLINE

In its effort to recommend an effective Lokpal Bill, the Standing Committee has to consider all the nuances of the views of civil society.

THE 31 members of the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, drawn from the Lok Sabha and the Rajya Sabha, have an onerous task on hand as they begin to scrutinise the Lokpal Bill. They cannot discuss the government’s Bill oblivious to the anti-corruption movement led by Anna Hazare, which resulted in extraordinary debates and an identical sense-of-the-House agreement in both Houses of Parliament on August 27.

The committee’s Chairman, Abhishek Manu Singhvi, a Congress MP and a senior advocate in the Supreme Court, has promised several surprises in its recommendations on the Bill and is of the view that 80 per cent of the Bill will be changed after the committee submits its report before the winter session of Parliament begins.

This is the first time that members of the Standing Committee will be discussing the provisions of a government’s Bill on the basis of a sense-of-the-House agreement, which is a rare expression of the collective will of the House on a piece of legislation and is a corrective measure. In a sense, it amounts to an admission by all the parties in Parliament that they failed to read the public opinion at the time of introduction of the government’s Bill and therefore they want to ensure that the committee considers the key concerns expressed by the public over the Bill’s omissions.

It is possible that the committee will, in any case, be apprised of these concerns during its two-month-long interaction with the public, seeking comments and suggestions and hearing testimonies from select representatives of civil society and other stakeholders. Yet, the sense of the House on these concerns means that the committee cannot finalise its recommendations without considering that agreement. The committee’s report is not binding on Parliament, which has to debate the provisions of the Bill again, in the light of the recommendations.

The three concerns over which Parliament expressed its sense-of-the-House agreement in response to Team Anna’s demands in order to make Anna Hazare end his fast constitute the salient features of the Jan Lokpal Bill. The agreement was carefully worded in view of the differences among members over how to resolve the three concerns:

“This House agrees in principle on the following issues: Citizens’ Charter, Lower Bureaucracy also to be under the Lokpal through appropriate mechanism, and establishment of Lokayuktas in the States.”

Union Finance Minister Pranab Mukherjee requested the Speaker of the Lok Sabha and the Chairman of the Rajya Sabha to transmit the proceedings of both the Houses on August 27 to the Standing Committee for its perusal while formulating its recommendations on the Bill.

The government has also forwarded to the committee the Jan Lokpal Bill and the comments and suggestions of Aruna Roy’s National Campaign for People’s Right to Information (NCPRI) and those of the Lok Satta party founded in 2006 by Jayaprakash Narayan, a former Indian Administrative Service officer.

The Jan Lokpal Bill, proposed by India Against Corruption (IAC), envisages a single institution that will cover all public servants and at all levels, from the Prime Minister down to the peons, which means all Ministers, elected representatives, civil servants and members of the judiciary. The NCPRI, however, is of the view that this will make the Bill too unwieldy and lead to the concentration of too much power in a single institution.

The NCPRI proposed three different institutions, namely, a national anti-corruption commission, called Lokpal, to tackle corruption of all elected representatives and senior bureaucrats; the Central Vigilance Commission (CVC) to be an investigative, prosecution and appellate authority for the remaining categories of civil servants; and a judicial accountability commission to investigate charges of corruption and misconduct against sitting judges.

While both the IAC and the NCPRI agree that the anti-corruption wing of the Central Bureau of Investigation can be transferred to the proposed Lokpal, the NCPRI wants the anti-corruption wing of the CBI dealing with the lower bureaucracy transferred to the CVC. The latest draft of the Jan Lokpal Bill is silent on the CVC’s future despite its previous version stating that the CVC be subsumed in the Lokpal and the CVC Act be repealed.

The Lok Satta’s model is similar to that of the NCPRI. According to it, the CVC (Chairman and two members) should be ex-officio members of the Lokpal and should be appointed in the same manner as the Lokpal. The CVC will perform all functions as envisaged under the law except that the allegations against Group A officers and above will be referred to the Lokpal. Once the CVC is integrated with the Lokpal, that body will exercise superintendence and guidance of the CBI. The CBI should be divided into two agencies – the normal crime investigation wing and the anti-corruption wing. The anti-corruption wing of the CBI will be accountable only to the CVC and not to the government. In States, the anti-corruption bureau will be directly under the Lokayukta, according to the Lok Satta proposal.

The differences among these three models are not in substance, but only in form. Hopefully, the appropriate mechanism which the committee will recommend should satisfy the authors of these three models.

On the Citizens’ Charter, the sense-of-the-House agreement is silent on the modalities. The Jan Lokpal Bill makes repeated violation of the Citizens’ Charter by any public servant an act of corruption. It defines “grievance” as a claim by a person that he could not get satisfactory redress according to the Citizens’ Charter despite approaching a public grievance redress officer ((PGRO) of the department concerned. The Bill also states that the Citizens’ Charter shall enumerate the public authority’s commitment to the citizens that are capable of being met within a specific time limit, and shall designate the officer whose duty would be to fulfil the commitment of the public authority.

The Jan Lokpal Bill further states that it shall be the duty of the PGRO to get the grievance redressed within 30 days from the receipt of the complaint. If he fails to do so, a complaint could be made to the Lokpal. The Lokpal, after hearing the PGRO, would impose suitable penalty not exceeding Rs.500 for each day’s delay, but not exceeding Rs.50,000, to be recovered from his salary. The Lokpal may also recommend imposition of departmental punishment on such PGROs.

The NCPRI feels that the Lokpal should not be involved in grievance redress because it is impractical, given the numbers that would be involved and the need to tackle grievances in a decentralised manner. It, therefore, suggests the setting up of an independent, specialised and professional grievance redress commission to redress grievances effectively in a decentralised and time-bound manner.

A three-member Bench of the Lokpal, according to the Jan Lokpal Bill, may direct any public authority to make changes in their Citizens’ Charter, and that public authority shall make such changes within a month of the receipt of that order.

The Lok Satta too agrees with the NCPRI that grievance redress should not be part of the Lokpal’s jurisdiction, but should come under a grievance redress authority to be formed at the Centre and in the States. Team Anna insists that grievance redress should come under the Lokpal because it has defined grievance non-redress as an act of corruption. The NCPRI and the Lok Satta do not seem to agree that grievance non-redress should be deemed to be an act of corruption.

However, when the Jan Lokpal Bill provides for an appellate grievance officer (AGO) in each district to receive grievances and requires that there shall be a social audit of each AGO every six months, it is not clear why the AGO cannot perform the functions of the Lokpal, as envisaged in the earlier drafts of the Jan Lokpal Bill.

The IAC’s difference with the NCPRI seems to be only over the definition of corruption, which is basically an academic, rather than a practical, issue. If the objective of grievance redress can be achieved under a different authority in a more effective manner than what has been proposed in the Jan Lokpal Bill, clearly Team Anna could consider the proposed alternative rather than insist on the literal adoption of its draft.

Both IAC and the NCPRI agree that the Lokpal, as an institution, should be replicated at the State level through appropriate Lokayuktas. The Lok Satta adds that the Lokayuktas should be appointed in a similar manner by a State-level selection committee and should have similar powers, protection and functions as that of the Lokpal.

It further adds that with the ratification of the United Nations Convention Against Corruption (UNCAC), Parliament, under Article 253 of the Constitution, has the power to make laws for the entire territory of India even on State subjects in matters relating to corruption. Although the Central government initially had reservations over the demand that the Bill could create Lokayuktas in States, it has now come around to the view that it could enact a model law for the States to adopt without violating the federal principle.

The Jan Lokpal Bill, according to its framers, would be called the Anti-Corruption, Grievance Redressal and Whistle-blower Protection Act. This suggests that the last two aspects are not subsumed under anti-corruption. Therefore, the NCPRI’s basket of measures proposing a separate grievance redressal commission and a distinct and strong whistle-blower protection law makes sense. Chapter XI of the Jan Lokpal Bill, with just one section and five sub-clauses, deals with protection of whistle-blowers. The NCPRI has come out with detailed notes for discussion on strengthening the Whistle-blower Protection Bill, currently pending in Parliament.

The fact that Team Anna wanted Parliament to commit on only these three issues makes it clear that it is flexible on other contentious issues such as the exclusion of the Prime Minister from the Lokpal’s ambit if the allegations against him pertain to national security and defence.

The government’s Bill includes in its ambit corruption in non-governmental organisations (NGOs). Team Anna’s answer to this is that the investigation of allegations of corruption in NGOs by the police does not lead to any conflict of interest and therefore such allegations can be kept outside the purview of the Lokpal. However, if the allegation mentions that a public servant sought to influence the investigation of corruption in an NGO, the Lokpal can investigate it and prosecute the accused.

Team Anna has also answered the criticism that the Jan Lokpal Bill is silent on corporate corruption by drawing attention to Section 6 (o), according to which the Lokpal’s function is to recommend cancellation or modification of a lease, licence, permission, contract or agreement if it was obtained by corrupt means and to recommend blacklisting of a firm, company, contractor or any other person involved in an act of corruption by the public authority. In the event of rejection of its recommendation, the Lokpal may approach the appropriate High Court for relief.

Another provision is Section 31 (1), which says that no government official shall be eligible to take up jobs, assignments, consultancies, etc., with any person, company, or organisation that he had dealt with in his official capacity. Subsections (2) and (3) of Section 31 call for complete transparency in the award of contracts, public-private partnerships, agreements or memorandums of understanding (MoUs).

Team Anna probably did not consider these provisions critical enough to bargain for their inclusion in the sense-of-the-House agreement even though they seem to be more significant than the three ‘sticky’ issues that it identified as the roadblocks that prevented Hazare from ending his fast.

It is ironical that Team Anna, which had initially questioned the relevance of the Standing Committee fine-tuning and improving the provisions of the government’s Bill, now sets great store by its ability to make a difference to the Bill.

Perhaps its confidence was restored after the committee’s recommendations on the Judicial Standards and Accountability Bill, referred to it by Parliament, became public. In its report, the committee is of the view that the government has to move beyond an incremental approach and give urgent and due thought to a holistic legislation encompassing the appointment process and other related matters to ensure judicial accountability for improved administration of justice.

In particular, the committee has recommended dilution of the provision imposing severe punishment for frivolous and vexatious complaints so that genuine complainants are not discouraged from complaining against the misbehaviour of a judge. The Bill prescribes imprisonment of up to five years and a fine of up to Rs.5 lakh for those found to have made false complaints against a judge.

The committee has also recommended the inclusion of non-judicial members in the composition of the complaints scrutiny panel, on whose decision alone a complaint could be considered by the National Judicial Oversight Committee. The Standing Committee has also recommended the need to broadbase the membership of this oversight committee with nominees from the executive, the legislature and the judiciary, and make it inclusive with representatives of all social classes.

Team Anna has agreed to drop its insistence that the Lokpal should include members of the judiciary in its ambit, on the condition that Parliament adopt a stronger Judicial Standards and Accountability Bill than the one that was referred to the Standing Committee. The Jan Lokpal Bill’s inclusion of the judiciary under the purview of the Lokpal did not go down well with other civil society groups, which are concerned about the threat to judicial independence from an all-powerful Lokpal.

Source: http://www.frontline.in/stories/20110923281901200.htm

CENSORSHIP AND THE STATE

Posted in CENSORSHIP LAW by NNLRJ INDIA on September 6, 2011

A.G. NOORANI IN THE FRONTLINE

The much-amended Cinematograph Act of 1952 needs a complete overhaul that takes film censorship out of the state’s purview.

THE entire system of film censorship in India is brazenly unconstitutional and a fraud on the Supreme Court. It is in utter disregard of the report of one of the most distinguished committees ever which toiled on film censorship 40 years ago. The structure erected by the outdated and much amended Cinematograph Act, 1952, is scandalous. It is designed to foster organised patronage. Politically, it establishes overwhelming state dominance to ensure the film industry’s dependence on Ministers and civil servants.

Like other Indians, members of the industry – actors, producers and distributors – wake up from their somnolence episodically, mostly when their own rights are affected. Those who protested over the cuts imposed on Prakash Jha‘s Aarakshan seemed to have no time for Ajay Sinha’s Khap, a movie on honour killings. It could not be screened in the one State that needed its message the most, Haryana. In her article, T.K. Rajalakshmi (“Reality show” , Frontline, August 26, 2011), remarked: “No one in the Mumbai film industry, save a few, bothered to back the beleaguered film director.” The police actively prevented the screening of the film.

On August 10, Amitabh Bachchan, who stars in Aarakshan, blogged: “If creative expression is to be curbed by institutes that wish to dictate their terms… above the conditions of… recognised constitutional formats… then we might as well accept that we live not in the sanctity of the tenets of democracy but a most unfortunate fascist conditioning.”

He must be congratulated on his belated discovery of a grim reality. A pity that it dawned on him only when his film was being brutalised. Our publicity-hungry civil liberty “activists” were conspicuous by their silence on the issue. The Athenian lawgiver Solon (640-558 B.C.), when asked how a people could preserve their liberties, said: “Those who are uninjured by an arbitrary act must be taught to feel as much indignation at it as those who are injured.” In India, such a consciousness is absent; protests are episodic. They subside and things go on as before. There is no national, non-political civil liberties organisation or movement.

Do not trust our politicians to fill the void. As a foreign correspondent once remarked, the Indian politician wakes up to deprivation of liberty only when the prison doors are shut behind him. Khaps provide musclemen during election. In Mumbai, two Ministers and a politician extracted from Prakash Jha his consent to cuts in order to gain some brownie points. One regrets the cuts; but one cannot condemn him. The system is frail, and crores of rupees are involved.

Cinematograph Act

It is time to reflect on the state of the law on film censorship. What are the travails that lie before the producer of a film as he seeks a certificate for its public exhibition, unrestricted or otherwise? The Act of 1952 establishes at the apex of the structure a Board of Film Certification comprising a chairman and not less than 12 and not more than 25 other members. It is to this board that any application for certification for public exhibition must be addressed. The chairman and members are appointed by the Central government. They do not enjoy security of tenure; no one in the entire edifice does. No qualifications are prescribed either.

New Delhi also appoints “at such regional centres as it thinks fit advisory panels” comprising such number of persons as it thinks fit. In this instance, “qualifications” are prescribed in a statement of the obvious. They must be “qualified in the opinion of the Central government to judge the effect of films on the public” (emphasis added, throughout). By this test, even literacy is not essential. Regional centres will have a powerful official, the regional officer, besides the chief executive officer of the board.

It is no reflection on the highly respected Chairperson now in office, Leela Samson, or on her immediate predecessor, Sharmila Tagore, to say that some of their predecessors, in the past, were appointed to give “jobs for the boys”. It is a notorious fact that the members of advisory panels are changed with every change of government in New Delhi. All are culpable in this – from Indira Gandhi and the Janata Party to the present.

Advisory panels are constituted under Section 5 of the Act. Its clause (3) says: “The Board may consult in such manner as may be prescribed any advisory panel in respect of any film for which an application for a certificate has been made.” The expression “as may be prescribed” is legalese for prescribed by rules made by the government. It is not the Act of 1952 passed by Parliament but the Cinematograph (Censorship) Rules, 1958, made by the government which set up two more powerful bodies – an examining committee (Rule 22) and a revising committee (Rule 24). Members of both are drawn from among members of the advisory panel. The examining committee plus “an examining officer” (a CEO or regional officer, or even the secretary to the chairman). It is the regional officer who appoints this committee when he receives the producer’s application for certification.

On receipt of the opinions of its members, in writing, the chairman of the board can refer the matter to a revising committee, either of his own motion or on the request of the applicant. The revising committee consists of members of the board or of an advisory panel, other than those who served on the examining committee. They are appointed by the chairman. He can pack the revising committee with those who will not disagree with his disagreement with the examining committee. If the chairman disagrees with the decision of the revising committee as well, the board shall itself examine the film or refer it to another revising committee; in either case for a final decision.

Anyone aggrieved by an order of the board, arrived after these protracted proceedings, can move an Appellate Tribunal (Section 5 C and D). It comprises a chairman and not more than four other members, all appointed by the Central government. The chairman must be either a retired judge of the High Court or a person qualified to be a High Court judge – a party hack of 10 years’ practice as a lawyer qualifies as chairman. As for its members, all that is required of them is that, like members of advisory panels, they “must be qualified to judge the effect of films on the public”. Two things stand out in this system: (1) No qualifications are prescribed for anyone, from the chairman downwards; (2) Everyone, the chairman, members of the advisory panel, and even the judge who presides over what is supposed to be a judicial “Tribunal”, is a daily-wage earner. He or she holds office, in every single case, “during the pleasure of the Central government”.

There is a sleight of hand here. The Act empowers the government to make rules specifying the “terms and conditions of service”. It has abused this power to define the tenure of service and amass to itself the power to sack one and all. It is through this maze of arbitrary power that the hapless producer has to steer his film. His travails do not end even after he wins his case before the supposedly judicial tribunal.

Unregulated powers

The government wields vast “revisional powers” exercisable “at any stage” of the process, not only over the board but also over the tribunal (Section 6). Have you ever heard of the executive sitting in appeal over a judicial body? If the board receives a complaint in respect of a certified film, all that it can do is to refer it to its masters, the Central government. The board, it must be emphasised, is in law a quasi-judicial body. However, the scope of the state’s revisional powers is unregulated and undefined. No grounds are specified; no guidelines are indicated. The entire paraphernalia of the board, the advisory panel and the two committees can be reduced to naught by a mere fiat from New Delhi. The state’s clear objective underlying the Act of 1952 is to have a stranglehold over the film industry. No wonder Information and Broadcasting Ministers and Secretaries are sought after so ardently.

The Government of India can ask the chairman to “re-examine” a film – even one upheld by the tribunal – and to do so “in such manner and with such assistance as may be specified in the direction”. It could be the “assistance” of anybody. On receipt of the chairman’s opinion, thus arrived at, the government proceeds to “pass such orders” as it pleases (Section 6 and Rule 32). It can direct a certified film to be uncertified (Section 6 (2) and Rule 31) or suspend its exhibition “for such period as may be specified”. The entire edifice of film censorship collapses like a house of cards. It cannot be emphasised too strongly that State governments have absolutely no right or power to ban a film. Section 13 (1) of the Act clearly says, “The District Magistrate in respect of the district within his jurisdiction, may, if he is of opinion that any film which is being publicly exhibited is likely to cause a breach of the peace, by order, suspend the exhibition of the film and during such suspension the film shall be deemed to be an uncertified film in the State, part or district, as the case may be.”

Statutory discretion can be exercised only by the authority designated by the law to exercise it. The District Magistrate’s power is limited to his district and hinges on the likelihood of “breach of the peace”. State governments cannot lawfully order District Magistrates to ban films throughout the State. The District Magistrate’s order, moreover, is subject to confirmation by the Central government (Section 13 (2)).

Illiteracy is written into the law. Rule 41 (4) reads thus:

“(a) In cases where the examining committee, after examination of the film, considered that a scrutiny of the shooting script is necessary or the authenticity of the incidents depicted in a film of historical, mythological, biographical or legendary nature is to be verified, a provisional report to that effect shall be submitted by the regional officer to the chairman within a maximum of three working days after such examination.

“(b) A written communication shall be sent to the applicant within a maximum of three working days following the receipt of the chairman’s orders on the provisional report referred to in clause (a) and the applicant shall submit the script or the authentic sources on which the subject of his film is based within ten days from the date of receipt of such communication.

“(c) In cases where the members of the examining committee after the examination of the film submit to the chairman a provisional report indicating that expert opinion on subjects depicted in the film such as subjects relating to defence or foreign relations or any particular religion or law or medicine or any other subject, should be sought before the final report is submitted, the chairman may after taking into consideration the circumstances of the case specify a time limit for obtaining the expert opinion and for the submission of the final report of the examining committee thereafter.

“(d) In other cases, the script submitted by the applicant or the authentic sources furnished by him shall be scrutinised by the examining officer and the final report of the examining committee shall be forwarded by the examining officer to the chairman within ten days from the date of receipt of the script or the authentic sources, as the cast may be.” A script written by a litterateur is subject to such a scrutiny.

There is a fundamental objection to this bizarre provision. Evidently, its authors were ignorant of the very concept of an historical novel. Fiction based on history need not be historically correct. And who is to judge the accuracy of the historical narrative, the government’s hand-picked appointees? Expert opinion is as irrelevant as citation of sources. It is the richness of the imagination that matters, as does the style in the writing and in the depiction in the film.

The Centre can go so far as to impose “President’s Rule” on the board, making its chairman the Governor. Section 7B reads thus: “The Central government may, by general or special order, direct that any power, authority or jurisdiction exercisable by the board under this Act shall in relation to the certification of films under this part and subject to such conditions, if any, as may be specified in the order, be exercisable also by the chairman or any other member of the board, and anything done or action taken by the chairman or other member specified in the order shall be deemed to be a thing done or action taken by the board.”

But then, the Supreme Court itself has laboured under a completely wrong notion of what a historical novel is about. In 1990, Bhagwan S. Gidwani’s historical novel The Sword of Tipu Sultan inspired a producer to make a TV serial. Huge protests followed. Doordarshan’s decision explicitly to disavow any claim to historical accuracy or authenticity was one thing. What was saddening was the lapse on the part of the Supreme Court. Doordarshan’s formulation was made worse by the court sanctioning the words: (it) “has nothing to do with either the life or rule of Tipu Sultan”. This is manifestly incorrect and makes a mockery of the very concept of historical fiction; it is fiction inspired by history.

Disposing of a special leave petition seeking a ban on the airing of the serial, the Supreme Court directed in February 1991 that the following announcement be made along with the telecast of each episode: “No claim is made for the accuracy or authenticity of any episode being depicted in the serial. This serial is a fiction and has nothing to do either with the life or rule of Tipu Sultan. The serial is a dramatised presentation of Bhagwan Gidwani’s novel.” This is utterly wrong on the part of any court of law. The Supreme Court has since acted like a mediator asking writers to make cuts in works of solid historical research instead of taking a firm stand on their fundamental right to freedom of speech and expression.

The G.D. Khosla report

The stranglehold of the government and sheer arbitrariness, writ large over the Cinematograph Act, 1952, were strongly criticised in the report of the Enquiry Committee on Film Censorship headed by G.D. Khosla, a former Chief Justice of the High Court of Punjab. It was appointed on March 28, 1968, and submitted its report on July 26, 1969. It won praise from the Supreme Court. Its analyses expose very many provisions of the Cinematograph Act, 1952, the Cinematograph (Censorship) Rules, 1983 ( in supersession of the Rules of 1958), and the archaic censorship guidelines, framed by the Government of India 20 years ago on December 6, 1991, to be unconstitutional.

Fundamentally, the Khosla report envisaged an “ independent and autonomous Board of Film Censors”. The present board is neither. It urged repeatedly (pages 56, 59, 99 and 100) that the censorship code be drawn up by the board itself and not by the government. The present code is a diktat by the government, which also acts as the supreme authority for its enforcement. Few committees had a more distinguished membership. Among its members were R.K. Narayan, K.A. Abbas, Romesh Thapar, Umashankar Joshi, Tara Sapre, and the chairman of the board of censors. Nargis was unable to participate in the proceedings and her substitute, Balraj Sahni, too, did not participate “owing to his heavy professional commitments”. Among the witnesses who appeared before the body were Satyajit Ray, E. Alkazi, Pahari Sanyal, Sohrab Modi, V. Shantaram, Prithviraj Kapoor, Hrishikesh Mukherjee, and some leading distributors and film critics.

The report became a bestseller. Attention was focussed on one highly popular recommendation to the neglect of much else: “No court of law will hold that a kiss by itself, irrespective of the circumstances in which it takes place or the individuals between whom it is exchanged, is indecent or immoral. In the same way, nudity of the human form may or may not be indecent. If there is, for instance, a brief shot of a woman undressing and entering a bathing pool, as in the film The Visit, no suspicion of indecency or immorality attaches to the shot which is relevant to the story. On the other hand, there are many scenes of cabaret performances or striptease sequences in Indian as well as foreign film which are obviously introduced in order to titillate the senses and thus make the film commercially saleable. Many of these scenes would be declared obscene even by the most liberal-minded judges.”

The report stressed the point that the fundamental right to freedom of speech and expression (Article 19 (1) (a) of the Constitution) is subject to three conditions – (1) “reasonable” restrictions, (2) imposed by law, and (3) only on grounds specified in Article 19 (2).

It is not unmindful of the need to balance freedom of expression with the interests of society, which naturally depend on the social outlook at any given period. That outlook has become illiberal in many respects: “We have of late become so inured to these restrictions that we cannot even imagine a society in which complete freedom of expression with regard to matters concerning sex was accepted as correct and essential…. We like to salve our needlessly guilty conscience by ascribing a religious significance to these sculptures (at Konark and Khajuraho) but few people are deceived by this mock spiritual argument. The plain fact of the matter is that in those days it was not considered offensive or objectionable to talk, write, paint or chisel images representing sex, sexual relations and even sexual perversities.”

Equally relevant are the report’s censures on the mechanism of film censorship that still prevails save for the introduction of a tribunal. Its verdict, however, can be set at naught by the Ministry of Information and Broadcasting: “No detailed qualifications have been prescribed, under the Rules, for the appointment either of the members of the board or for the personnel of the panels, but it is expected that these persons are possessed of sufficient educational and cultural competence to deal with the matter entrusted to their charge. The chairman holds a statutory appointment. He is appointed without any consultation with the Union Public Service Commission. No specific qualifications for the post have been prescribed.”

Most important defect

Note these censures: “The present board of censors is not an independent body. Its decisions are liable to be set aside by an order of government.… Here we may reiterate the most important defect, namely, the lack of responsibility which the present system entails. For work of such importance it is necessary that persons who are entrusted with it should feel a full sense of responsibility. The rigidity of a code drawn up by a superior power, the inhibition and lack of flexibility resulting from such rigidity, the constant fear of interference and a residual consolation that mistakes will be rectified by a higher authority are features which not only destroy the efficiency of the board but arouse almost universal condemnation of its decisions. It is important, therefore, that state censorship should be exercised not by a department of the state, whose decisions are subject to revision, appeal or interference by the government, but by an independent body which has been given sufficient authority and a sufficient sense of responsibility to deal with the matter finally and irrevocably.”

The word “irrevocably” clearly implies finality to the board’s verdict subject, of course, to the court’s powers. The Information and Broadcasting Ministry then ceases to exercise “revisional” or other overriding powers as it does now. No room for doubt whatever is left when the report discussed the second alternative: “Perhaps the most important advantage of an independent board is that it makes for consistency and uniformity of the censorship policy, because it is immune from changing political influencers and the caprices of the Secretary or Minister in charge of the relevant portfolio.” The report recommended the details of such a set-up.

The Khosla report had no use for the advisory panels of assorted groups of people who comprise the examining and revising committees of today: “We are firmly of the view that the present system of entrusting the preview of films to a panel of honorary examiners, consisting of persons who have little sense of responsibility and who have been appointed in the exercise of governmental patronage, should be completely done away with. It is the censors themselves who must see all films, evaluate them and assume full responsibility for certifying or rejecting them. After giving the matter our most anxious thought, we feel that a Central board of 20 members drawn from various regions and familiar with regional languages will be able to discharge this work competently and expeditiously.”

This also does away with the chairman of the board, an office in the bounty of the Information and Broadcasting Ministry. The report suggested that the chairman of the board should have the status and ranking of a High Court judge and all the members of the board should be full-time, paid members. This single, quasi-judicial body will be fully responsible for drawing up the censorship code and applying it.

The government-ordained guidelines, as at present, must be scrapped: “These guidelines must be drawn up by the censors themselves so that a measure of flexibility is assured and the censors have ample discretion in dealing with each picture as it comes up for certification. It is important not to have a code drawn up by the government under its rule-making authority, for such a code assumes the rigidity of a legal enactment, and does not permit the exercise of discretion, it does not take into account the change in ideology, moral standards and norms of conduct, such as greater freedom in social intercourse between members of both sexes, the gradual erosion of the joint family citadel, the introduction of divorce laws, the changing attitude towards untouchability, the rights of land and factory workers, the status of women, etc. Finally, a rigid code of the type in force now does not encourage the evaluation of a film as one integrated piece which must be assessed and judged as a whole and not as a collection of distinct and separable parts.” The guidelines now in force were framed by the government and richly deserve these censures.

Abbas’ petition

In 1969, K.A. Abbas, one of the members of the Khosla Committee, moved the Supreme Court in view of the cuts imposed on his film A Tale of Four Cities. He challenged censorship of films itself or, in the alternative, the Act and the Rule, as being violative of the fundamental right to freedom of speech and expression. One of the grounds was that there was no appeal to a court or to an independent tribunal. The government conceded that and promised that it “would set on foot legislation” for that and other reforms besides. Without it the Act was void. It was saved from being declared void only by the government’s assurance.

The court delivered its judgment on September 24, 1970. A tribunal was set up only in 1983. On the censorship code, the court tartly remarked: “Our standards must be so framed that we are not reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read.” The court noted a vital omission in the guidelines and said it should be repaired by positive “directions to emphasise the importance of art to a value judgment by the censors”.

The government’s promise to the Supreme Court to usher in legislation was sought to be fulfilled in 1973. The amending Act was to come in force on July 1, 1975. The Emergency, proclaimed on June 25, 1975, prompted the cancellation of the notification. The Janata Party government did not bring the Act into force either. All it did was revise the guidelines on January 7, 1978. Its I&B Minister, L.K. Advani, said in Madras (now Chennai) on May 6, 1978, that it was considering the establishment of a tribunal. He criticised the practice of the government setting aside the censor board’s decisions. In 1981, the amendments of 1973 were repealed and a new set of amendments was made to the Cinematograph Act, 1952. Some more followed in 1984. It is this regime, with the Rules of 1983 and the guidelines of 1991, that is in force today.

Clearly, the law is a fraud on the Supreme Court. The promise to set up an independent tribunal has been violated. Section 96 of the Criminal Procedure Code provides for a Bench of three High Court judges to consider the validity of an order banning a book. The least that can be done in film censorship is to establish a truly independent tribunal. Since the Khosla report, a pattern of obligatory consultation on appointments to high offices has been established by laws in respect of the chairmen of the Press Council of India, the National Human Rights Commission, and the Prasar Bharati Board. No such consultation is enjoined in the Cinematograph Act.

The Cinematograph Act, 1952, needs a drastic overhaul now, over half a century since its enactment. It is clumsy and ill-structured. The Rules set up bodies which should be set up by the parent Act itself. The Khosla report, approved by the Supreme Court, and the court’s ruling must be implemented. The board as it is now constituted, the bogus advisory panel and its examining and revising committees and tribunal must be scrapped. An independent board of qualified persons must itself censor films in accordance with guidelines framed by the board itself after full consultations with writers, the film industry and the public. Appeals should lie to the High Court. The state should be shorn of its revisional powers. The procedure in force today is cumbrous, dilatory and unconstitutional.

It is open to the film industry to set up a small group from among its members to draft a model statute for public debate. The present state of film censorship is obscene.

http://www.frontline.in/stories/20110923281909100.htm

Why all in one?

Posted in ANNA HAZARE CAMPAIGN, CONSTITUTION, CORRUPTION, DEMOCRACY, JAN LOKPAL by NNLRJ INDIA on September 6, 2011
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USHA RAMANATHAN IN THE FRONTLINE

Given the experience with extraordinary powers vested in any institution, the wisdom of having a super-powerful body must be debated.

IT is axiomatic that it is the state that has the exclusive power to make law. As is true of many axioms, this too reflects reality only in part; various groups do, in fact, influence lawmaking. The Disabilities Act, 1995; the Right to Information Act, 2005; and the National Rural Employment Guarantee Act (NREGA), 2005, are obvious examples. Yet, alongside this experience is the intransigence of the state, which the Lokpal debate has thrown into sharp focus.

The government’s Lokpal Bill, 2011, was introduced in the Lok Sabha on August 4, following tough talking and hard bargaining by five members of a civil society team. Yet, this Bill manages to remain status quoist even while ceding some ground. Its ‘Lokpal’ will be a chairperson with a maximum of eight other members, half of whom are to be judicial members. The pool from which it will draw its candidates is populated with sitting and retired judges of the Supreme Court and Chief Justices of High Courts. The appointment process, too, is more of the same.

The government is, by instinct and practice, loath to dilute its control over what it creates, and the Lokpal Bill too is witness to this. The chairperson or any other member is to be removed from office on the grounds of misbehaviour on a report from the Supreme Court, on the basis of an inquiry made by it. The Supreme Court may, however, act only when the reference has been made to it “by the President”, on a petition signed by at least a hundred Members of Parliament or, again, by the President, on a petition from a citizen where the President is satisfied that such reference should be made.

Acceding to the demands of the team of five, the Bill has accepted the formula of a separate investigation wing and a prosecution wing to be constituted by and under the control of the Lokpal. There is relative fiscal autonomy where the Lokpal is to prepare its budget each year, which is to be sent to the Central government “for information”.

The sticky issue of whether the Prime Minister should be subject to the Lokpal’s scrutiny has been answered by including him – “after he has demitted the office of the Prime Minister”. Ministers, MPs and high-ranking officials are within this law, but not the lower bureaucracy.

The inclusion of any person belonging to “any association of persons or trust (whether registered under any law for the time being in force or not) in receipt of any donation from the public” is being read as a way of getting back at a public that has placed the government in this difficult spot. The notable absence of corporations from the ambit of this Bill has drawn adverse comments, especially given the role corporations are to have had in so many recent scams.

Prosecution or disciplinary proceedings, the power of search or seizure, provisional attachment of assets, and the power to recommend transfer or suspension of a public servant who is connected with allegations of corruption are all in the Bill, as are provisions providing for declaration of assets and adverse inference where assets not declared are found in the possession of or in use by a public servant.

Perhaps the most striking deviation from extant law is the change in the nature of the ‘sanction’ power. The power of the executive to withhold sanction for prosecution has been a huge hurdle to holding the corrupt guilty. The government Bill hands over to the Lokpal the power to give or withhold sanction. The Jan Lokpal Bill, too, adopts this approach. Neither, however, acknowledges the changes that have been introduced in the Torture Bill, which, carefully, does not leave the power in anybody’s discretion. It, instead, requires that where the decision is not to allow prosecution, reasons have to be given, which may, then, be subject to judicial review. That places a check on arbitrary use of power by any agency. The formula in the two Bills relocates the discretion in the Lokpal but does not change the nature of that power to exercise discretion.

The presumption of ‘good faith’ – that everything done by a public servant shall be presumed to be done “in good faith or intended to be done in the discharge of official functions or in exercise of his powers” – has been retained.

Generally, then, the government Bill is more of the same with one significant change, some reluctant halfway measures, and much that has been left unconsidered.

The Jan Lokpal Bill has moved through many versions. In June, version 2.3 was made available on the website of India Against Corruption (IAC). Mildly put, this Bill is markedly at variance with the government Bill. This Bill envisages a Lokpal that would have “administrative, financial and functional independence from the government”. To achieve this, the Lokpal is to have its own investigating agency, which it will supervise, monitor and direct. It will appoint and dispense with the services of its investigators.

The arm of the Central Bureau of Investigation (CBI) that investigates corruption is to be excised from it and subsumed in the Lokpal. Some years ago, in an effort to give functional autonomy to the CBI from its political masters, the Supreme Court shifted control of the CBI to place it in the Central Vigilance Commission (CVC). The Jan Lokpal Bill works on the unreasoned belief that the Lokpal will not succumb to the temptations of such extensive control over the investigating agency.

Powers of the Lokpal

The powers of the Lokpal are elaborate and have been set out in two clauses in the Bill. They include the power to

“Appoint judicial officers, prosecutors and senior counsel.”

Initiate and monitor the progress of prosecution.

“Attach property and assets acquired by corrupt means and to confiscate them in certain cases.”

“Recommend cancellation or modification of a lease, licence, permission, contract or agreement if it was obtained by corrupt means, and to recommend blacklisting of a firm, company, contract or any other person involved in an act of corruption.” In this case, the public authority shall either comply with the recommendation or reject it within a month of receiving it. If rejected, the Lokpal “may approach the appropriate High Court seeking appropriate directions to be given to the public authority”.

“Ensure due compliance of its orders by imposing penalties on persons failing to comply with its orders.”

“Initiate suo motu appropriate action… on receipt of any information from any source about any corruption.”

Make recommendations to public authorities, in consultation with them, “to make changes in their work practices to reduce the scope of corruption and whistle-blower victimisation”, and the authority concerned is to send a compliance report within two months.

“Prepare a sentencing policy under the Prevention of Corruption Act and revis(e) it from time to time.” This is an extraordinary prescription by which parliamentary power to detail the policy of punishment is moved to the discretion of the Lokpal. The punishment for corruption can be set anywhere between six months and a life sentence.

“Prepare an appropriate reward scheme to encourage complaints from within and outside the government to report acts and evidence of corruption.”

Enquire into the statements of declaration of assets “filed by all successful candidates after any election to any seat in any House of Parliament”.

Punish a public servant with imprisonment up to six months or fine or both “if he fails to comply with its orders for ensuring the compliance”.

Assume competence to investigate any offence under any other law while investigating an offence under the Prevention of Corruption Act.

Interception and monitoring of various media of communication can be undertaken at the behest of the Lokpal – and a member of the core committee claimed recently that this was non-negotiable.

The breadth of the Lokpal’s interest includes within it complaints of corruption against the Prime Minister, Ministers and MPs, and the higher judiciary, and these shall be looked into by a bench of seven members if the Lokpal so decides. The Lokpal will, among its other functions, protect the whistle-blower and the Right to Information (RTI) activist; deal with grievances where there is a delay or non-performance in delivery of services; and ensure that its own staff does not practice corruption.

A complex appointment process and a complaints procedure by which anyone may complain to the Supreme Court, which will then inquire and decide whether a Lokpal is guilty as charged, are the bulwarks offered against excessive power corrupting the Lokpal.

The inadequacy of these protections has been raised and needs much discussion and reasoned debate.

A multiplicity of powers – to legislate, judge, punish and protect – are to be placed in this institution of the Lokpal. There are questions about constitutionality, separation of powers, checks and balances, and the consequence of absolute power waiting to be addressed in this Bill. It does, however, provide a useful counterpoint to the government Bill.

A postscript: although having the Lokayuktas in the Act is one of the demands, the Jan Lokpal Bill does not elaborate on this theme and stops with stating that “similar provisions for Lokayuktas… will have to be incorporated in the Bill”.

The National Campaign for People’s Right to Information (NCPRI) has proposed a “basket of measures” in place of an omnibus law that vests all the power, and responsibility, in a Lokpal. These largely draw upon Bills pending in Parliament and work at improving and strengthening them. These are the Judicial Standards and Accountability Bill, the Whistleblowers’ Bill, the Lokpal Bill and the toughening up of the Central Vigilance Commission Act, 2003. In addition, a National Grievance Redress Bill, 2011, has been drafted to cover the complaints that arise in the delivery of services.

The NCPRI position is that loading one institution with the work of dealing with corruption and inefficiency in the lower bureaucracy, protecting whistle-blowers and RTI activists, and confronting big-ticket corruption would make for an impossible agenda. As for the judiciary, the independence of the judiciary must be preserved, as must the separation of powers; and dealing with matters of standards and corruption in the judiciary would best be by a separate law. The NCPRI documents are offered as critiques and drafts meant to facilitate discussion.

Suggestions emanating from the Lok Satta and the Foundation for Democratic Reforms reflect on the proposals currently on the table and open the door for discussion. A Bahujan Lokpal Bill, 2011, sent to the Standing Committee brings into the debate the issue of representation in such a powerful body and the recognition of the diversion of funds and policy focus from the Scheduled Castes, for instance, to other purposes as happened during the Commonwealth Games.

Some of the changes that may be brought may need a constitutional amendment. Congress general secretary Rahul Gandhi made a suggestion in Parliament that the Lokpal may be made into a constitutional entity, a suggestion that has been seconded by former Chief Election Commissioner T.N. Seshan.

Given the experience with extraordinary power when vested in any institution, the wisdom of having such a super-powerful, insulated body awaits serious deliberation.

Usha Ramanathan is an independent law researcher working on the jurisprudence of law, poverty and rights.

http://www.frontline.in/stories/20110923281902400.htm

National Green Tribunal

Posted in ENVIRONMENT by NNLRJ INDIA on September 6, 2011
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The Government has appointed four Expert Members and two Judicial Members in the National Green Tribunal (NGT). A Selection Committee as per the details given below has been constituted under Rule 3 of NGT (Manner of Appointment of Judicial and Expert Members, Salaries, Allowances and other Terms and Conditions of Service of Chairperson and other Members and procedure for Inquiry) Rules, 2010 dated 26.11.2010, framed under NGT Act, 2010:

(1)        Sitting Judge of Supreme Court nominated by the Chief Justice of India in consultation with Ministry of Law and Justice– Chaiperson
(2)        Chairperson of the NGT                                                                                         Member
(3)        Secretary to Government of India, M/o Environment & Forests       Member
(4)        Director, Indian Institute of Technology, Kanpur                                    Member
(5)        Director, Indian Institute of Management, Ahmadabad                        Member
(6)        President, Centre for Policy Research, New Delhi                                    Member

 During the first phase of selection process of Members in the Tribunal, the following criteria were applied on the applicants who initially fulfilled the eligibility under Section 5 of the NGT Act, 2010 for further screening of applications:

For Judicial Member

No sitting/former Judge of the High Court will be considered for appointment to the post of ‘Judicial Member’ of the Tribunal if he has retired prior to one year or still has more than one year in service, both computed from the date of advertisement. It is in the interest of the Tribunal and administration of Justice as well that a person appointed should have reasonable tenure to be the Member of the Tribunal and discharge his functions effectively.

The other terms are the Judge concerned should have preferably performed judicial work relating to Environment Laws, the comments of the Chief Justice of the concerned High Court, may also be invited in relation to judges short-listed for appointments as ‘Judicial Member’ of the Tribunal and the applicants who are presently working as Member of any Tribunal or have got an assignment post-retiral will not be considered.

 For Expert Member

(a)        No serving/retired Government employee will be considered for appointment to the post of ‘expert Member’ of the Tribunal if he has retired prior to one year or still has more than one year in service, both computed from the date of advertisement .It is in the interest of the Tribunal and administration of justice as well that a person appointed should have reasonable tenure to be the Member of the Tribunal and discharge his functions effectively.

 (b)        The ‘Expert Member’ besides satisfying the qualifications prescribed under Section 5 read with Rule 5 should have requisite experience relatable to expertise in the environmental management.

 (c)        The Ministry to also examine whether there is any serious conflict of interest between the applicant and the Ministry/ Administrative interest of the Tribunal

 (d)       The applicants who have opted for deputation only and are below the rank of Additional Secretary to the Government of India would not be considered.

 This information was given by the Minister of State for Environment and Forests (independent charge) Shrimati Jayanthi Natarajan in a written reply to a question by Dr. Arvind Kumar Sharma in Lok Sabha today.

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