LAW RESOURCE INDIA

Make full use of RTI

Posted in ACCOUNTABILITY, ANNA HAZARE CAMPAIGN, CORRUPTION, GOVERNANCE, RTI by NNLRJ INDIA on September 11, 2011
Make full use of RTI

Make full use of RTI

BALWINDER SINGH IN THE HINDU

The Right to Information Act (RTI) is a path-breaking law which empowers ordinary citizens to obtain the required information from the public authorities. This is also a major tool for preventing and fighting corruption. The media have been highlighting from time to time the positive work being done by RTI activists. But the experience in the last few years reveals that implementation of the Act has got distorted.

Section 4 is the cornerstone of the Act. It stipulates that “it shall be the constant endeavour of every public authority to provide as much information suo motu to the public at regular intervals through means of communication, including internet so that the public have minimum resort to the use of this Act to obtain information.” The Act goes to the extent of identifying certain specific areas of information which the authorities have to publish in the public domain within 120 days of the enactment.

This critical aspect of the RTI Act has not received the attention it deserves from the authorities, the Central and State Information Commissions or even RTI activists. This has led to the burdening of government organisations as well as the Central and State Information Commissions with a large number of individual applications seeking information and filing appeals, clogging the system. The Information Commissions will soon reach a stage where pending matters will take years for disposal, thus making the system dysfunctional. Every public authority, especially those having a large public interface, needs to take up the challenge of fully implementing Section 4 at the earliest.

Computerisation of government records is not merely a process of conversion of manual records. The challenge lies in re-engineering the business processes and then computerising the records in such a manner that it simultaneously leads to improvement in the efficiency of the organisation and maximising the availability of information in the public domain in formats which are useful to the general public or the stakeholders. While there is no explicit mention of the role of the CIC and the State Information Commissions in this regard, it is inherent in the very scheme of the Act that the Information Commissions have to play a pivotal role in ensuring that Section 4 on maximising information in the public domain is complied with. The Information Commissions can take the cue from the directions issued by the Central Vigilance Commission (CVC) in November, 2006.

This author conceptualised and drafted the relevant circular of the CVC which gave directions to all government organisations to provide complete information on their websites on the laws, procedures governing the issue of licence, permission, clearance, etc., and also make known the stage of applications from public or business entities when they are seeking such permissions, clearances, NOCs, licences, building plans and passports from the public authorities. He prepared an illustrative list of 16 areas where information is to be necessarily displayed in the public domain; three of these are as follows:

Land & building related issues

-Applications for mutation, conversion from leasehold to freehold of lands and buildings, approval of building plans by municipal authorities and the land owning regulating agencies like the MCD, the DDA, the NDMC, the L&DO and similar agencies in other Union Territories;

-Application for registration deeds by Sub-Registrars/Registrars and other applications connected with land record management;

-Application for allotment of land/flats, etc., by urban development agencies like the DDA.

Contracts & Procurement

-Applications for registration of contractors/suppliers/consultants/vendors, etc.

-Status of all bill payments to contractors/suppliers, etc.

Transport sector

Issue of driving licences, registration of vehicles, fitness certificates, release of impounded vehicles, etc. by the RTAs.

The same exercise can be carried forward by the Central as well as State Information Commissions. If the Information Commissions construe their responsibilities in a very narrow manner and take a view that they can only act on complaints, then civil society, the chambers of industries and commerce and RTI activists can lodge complaints wherever maximum possible information has not been placed in the public domain on websites or otherwise and the Information Commissions can issue directions to the public authorities in this regard.

The full potential of the RTI Act can be realised only by maximising information in the public domain. This would not only further the cause of right to information but also upgrade and modernise the working of government agencies, thus improving governance.

(The author is Special Director of the CBI and his email id is sbalwinder@yahoo.com)

http://www.thehindu.com/opinion/open-page/article2442483.ece

Is this real justice?

Posted in DEATH PENALTY by NNLRJ INDIA on September 11, 2011
DEATH PENALTY

DEATH PENALTY

PAMELA PHILIPOSE IN THE HINDU

Capital punishment is retributive justice and abolishing it is a risk that modern states need to take, says Pamela Philipose.

Gabriel Garcia Marquez‘s classic, One Hundred Years of Solitude, begins with a line that could be read as a powerful argument against capital punishment: “Many years later, as he faced the firing squad, General Aureliano Buendia was to remember that distant afternoon when his father took him to discover ice.”

The imminent extinction of a sentient life endowed with thought and memory, linked intimately to the lives of others, is a fearsome thing. So it is entirely understandable why that angst-ridden question — Should India remove capital punishment from its statute books? — refuses to go away. Here we are, with our much-feted legacy of non-violence, with our burnished democratic Constitution and Credentials, still attached by the feet to the ever-shrinking corner of the globe which continues to defend the death penalty.

Uneasy defence

It has been an uneasy defence for sure. The umbrella formulation that the death penalty should only be accorded in the “rarest of rare cases”, put forward in 1980 by the Supreme Court in Bachan Singh v. State of Punjab, has remained an uncertain talisman with Indian courts interpreting it in an astoundingly variegated manner, but it has remained a talisman nevertheless. Indian Presidents, too, have routinely dragged their feet over rejecting mercy pleas. The country has also, incidentally, seen attempts to institutionally “reform” the administration of the death penalty. The ‘Model Prison Manual for the Superintendence & Management of Prisons In India’ (2003) recommends that all prisoners going to meet their fate at the gallows be made to wear “a cotton cap with flap” so that he/she will not be able to see the gallows — an highly ineffectual aid, surely, under such circumstances.

Internationally, India continues to remain in an ambiguous position. It is party to the International Convention on Civil and Political Rights that requires countries to move towards the abolition of capital punishment, but has desisted from ratifying the Second Optional Protocol to the Convention and last November it voted along with China and Saudi Arabia to oppose a UN resolution for a moratorium on the death penalty.

So while there may be some curling of toes over the prospect of denying criminals on death row their right to life, the Indian State has consistently balked at doing away with the hanging option. By and large, the argument put forward by the Law Commission of India in 1967 continues to hold sway. In its 35th Report, the Law Commission pronounced that “Having regard… to the conditions in India, to the variety of the social upbringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its area, to the diversity of its population and to the paramount need for maintaining law and order in the country at the present juncture, India cannot risk the experiment of abolition of capital punishment.”

Necessary risk

The fact is that 139 countries in the world — and their number is rising not declining — despite serious security challenges have taken this “risk”, precisely because it is a risk that modern and modernising states should take, given that not doing so would compromise the very notion of an enlightened state. Remember that many of these countries have had long and grisly trysts with capital punishment. Pre-19th century England, for instance, had over 200 “crimes” that could invite a hanging sentence. The list included thievery (goods valued at five shillings and more), maiming horses, impersonation and ‘sodomy’.

One of the justifications for persisting with the death penalty is, of course, that inchoate, arbitrary, unquantifiable and often irrational concept known as “public opinion”. Indian courts, incidentally, have been sensitive to “public opinion”. In a judgment, Dhananjoy Chatterjee v State of West Bengal, that had led in 2004 to the last public hanging India has witnessed so far, the Supreme Court stated: “Imposition of appropriate punishment is the manner in which the courts respond to society’s cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime…”

But “society’s cry for justice” is an uncertain foundation for justice as Arthur Chaskalson, who served as Chief Justice of South Africa from 2001 to 2005, reiterated. He put it this way, “Public opinion may have some relevance to the enquiry, but in itself it is no substitute for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favour. If public opinion were to be decisive there would be no need for constitutional adjudication…”

The founding fathers and mothers of post-Independence India did not ban capital punishment and retained the 1861 Indian Penal Code providing for the death penalty. But it was not as if they did not envisage the possibility of the country exercising that option at some point. Amiyo Kumar Ghosh, a member in the Constitutent Assembly, while opposing an amendment that wanted a partial ban on capital punishment, went on to say, “I think that with the growth of consciousness, with the development of society, the State should revise a punishment of this nature…”

Why persist?

The questions we then need to ask is why, despite the long decades that have intervened since those words, India still cannot countenance such a possibility. Why does it continue to perceive the hangman’s noose as coterminous with the scales of justice? Why does it settle for peremptory and irrevocable responses to heinous crimes, when the world is engaging with ideas of restorative rather than retributive justice? Can’t post-independence India not hold itself to standards higher than those set by its one-time imperial rulers, standards that had been sharply critiqued by the freedom movement?

A passage from Bhagat Singh’s last petition to the Punjab governor should give us pause: “As to the question of our fates, please allow us to say that when you have decided to put us to death, you will certainly do it. You have got the power in your hands and the power is the greatest justification in this world. We know that the maxim ‘Might is right’ serves as your guiding motto. The whole of our trial was just a proof of that. We wanted to point out that according to the verdict of your court we had waged war and were therefore war prisoners. And we claim to be treated as such, i.e., we claim to be shot dead instead of to be hanged.”

He and his comrades in arms, Rajguru and Sukhdev, were hanged on March 23, 1931.

http://www.thehindu.com/arts/magazine/article2442039.ece

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