Meeting of a Delegation of Civil Society Members with the Commission Regarding Electoral Reforms

A delegation comprising Shri Shanti Bhushan, Shri Prashant Bhushan, Shri Arvind Kejriwal, Shri Manish Sisodia and Ms. Kiran Bedi met the Commission on 31st October, 2011. There was exchange of views on various issues, particularly on electoral reforms. The delegation made several suggestions including those relating to ‘Right to Recall, ‘Right to Reject’, checking corruption in electoral process, preventing criminalization of politics and strengthening of electoral system. The Chief Election Commissioner Dr. S.Y. Quraishi, Election Commissioners Sh. V.S. Sampath and Sh. H.S. Brahma and the senior officers of the Commission responded to the suggestions made by the delegation. There was complete unanimity about the need to end corruption from public life, especially elections.

Dr. Quraishi informed the delegation about various proposals of electoral reforms submitted by the Commission to the Government, from time to time. He also informed them about the recent country-wide consultations on electoral reforms, taken up jointly by the Election Commission of India and the Ministry of Law & Justice. Seven Regional Consultations have already been held in the last about 1 year and an all party meeting was now awaited. The CEC also shared with the delegation the latest developments in the area of speeding up of the proposed reforms. He also briefed them about various administrative and regulatory measures taken by the Commission in the recent months to check corruption, improve transparency and increase peoples’ participation in elections.

The suggestion about the ‘Right to Recall’ was discussed in detail. CEC explained various implications involved in the implementation of the suggestion, like, the minimum percentage of voters who may file the petition for recall, verification of authenticity of thousands of signatures and whether those signatures have been given voluntarily or under coercion, minimum time after which such petition for recall could be presented, the further exercise of calling for a referendum in the constituency and the holding of a subsequent election where the petition succeeds. He also mentioned that such a move would bring instability as the losers could start such a campaign from the day one. He further pointed out that this would also hamper development activities because of frequent elections and imposition of Model Code of Conduct too often. The delegation agreed that the matter needed to be further examined by them keeping all the above implications in mind.

The ‘Right to Reject’ issue was discussed in detail. The Commission informed the delegation that it had already proposed to the Government in December 2001 to make a suitable provision in the rules to introduce a button in the balloting unit of the Electronic Voting Machine (EVM) so that electors could exercise ‘none of the above’ option. The ‘Right to Reject’ will however require an amendment in the Representation of the People Act, 1951. The Commission pointed out that ‘Right to Reject’ may lead to more frequent elections. The delegation was however of the opinion that the ‘Right to Reject’ will not lead to more frequent elections as it will act as a deterrent on the Political Parties to sponsor more worthy candidates and will also help in curbing muscle and money power. CEC observed that the demand for ‘Right to Reject’ would only have an impact if the voting percentages were really high. What is the use of exercising this right if half of the voters do not turn up for voting? The Commission mentioned that the matter is also before the Supreme Court.

The CEC requested civil society groups to extend support to the ongoing positive efforts of the Commission to enhance voters’ participation in elections and strengthen democracy. The delegates assured the Commission that they would campaign for higher public participation in electoral process

The delegation expressed concern over the growing criminalization of politics. The Commission informed them that a proposal for debarring candidates, against whom charges have been framed by the Court of law for heinous crimes, from contesting elections has already been sent to the Government way back in 1998 and the same is at an advanced stage of consideration by the Government. They were of the view that if the ‘Right to Reject’ was provided for in the law, then it would also have a salutary effect on the political parties.

There were discussions on several other issues including state funding of elections, paid news and other reform proposals. The delegates requested for a complete brief on the latest set of electoral reforms proposals. The Commission handed over a written brief on the matter to the delegation. The meeting was extremely cordial and positive.

Election Commission of India
New Delhi, 01th November, 2011

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Holding government to account

WAJAHAT HABIBULLAH IN THE INDIAN EXPRESS

As the Right to Information Act (RTI) celebrated the sixth year of its coming, there has been much heated discussion, often emotional, of the benefits that it has brought and also the challenges with which it has confronted government. This debate came to a head with the prime minister’s inaugural address to the Annual Convention of the Central Information Commission on October 14.

It is accepted in all circles that the essence of government in a democracy must be transparency with every organ of government — executive, judiciary and legislature — being answerable to the citizen. Hence the father of the nation, when describing his vision of self governance for India, described it as follows:

“The real Swaraj will come not by the acquisition of authority by a few but by the acquisition of capacity by all to resist authority when abused”

India’s Right to Information Act, 2005 therefore, asserts that democracy requires an informed citizenry and transparency of information, which are vital to its functioning and also to contain corruption and to hold governments and their instrumentalities accountable to the governed. This is a universal truth of particular relevance to us as a country, the government of which has, at least since the ‘70s, remained committed to “garibi hatao” . In the words of Kofi Annan, the former UN secretary general:

“The great democratising power of information has given us all the chance to effect change and alleviate poverty in ways we cannot even imagine today. Our task, your task— is to make that change real for those in need, wherever they may be. With information on our side, with knowledge of a potential for all, the path to poverty can be reversed.”

This thought found resonance in the prime minister’s speech introducing the bill in Parliament on May 11, 2005:

“I believe that the passage of this bill will see the dawn of a new era in our processes of governance, an era of performance and efficiency, an era which will ensure that benefits of growth flow to all sections of our people, an era which will eliminate the scourge of corruption, an era which will bring the common man’s concern to the heart of all processes of governance, an era which will truly fulfil the hopes of the founding fathers of our republic.”

But for whom are the benefits intended? We know that infrastructure in India is woefully inadequate despite privatisation; employment growth of 2.1 per cent in 1983 had in fact declined to 1.84 per cent in 2004; in the health sector there are regional, socio-economic, caste and gender-based disparities; Centre-state fiscal relations are a matter of concern; an institutional framework for public-private partnership is still to be developed; access to justice is not universal despite the rise of panchayati raj. Finally, because of the demands of national security versus social security and individual freedom, the essence of democracy, which respects the sovereignty of individual liberty, is vague at best. Some of these challenges, specifically the need to address threat to whistle-blowers, were cited by Dr Manmohan Singh in his address.

In this context, it is important to dwell on the definition of “information” in the Act. Information means any material in any form including records, documents, memos, emails, opinions, advice, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and “information relating to any private body which can be accessed by a public authority under any other law for the time being in force”. As the PM mentioned in his address, this will clearly bring under the Act almost the entire scope of the economic firmament, which, thanks to the heritage of our “welfare state”, is answerable to government in a wide host of sectors. Key concepts under the right to information, then, include the following:

Transparency and accountability in the working of every public authority.

The right of any citizen of India to request access to information and the corresponding duty of the government to meet the request, except the exempted information.

The duty of the government to proactively make available key information to all.

Clearly then, this law places a responsibility on all sections of the national fabric: citizenry, NGOs and the media. The responsibility is not that of government alone. This brings into context the PM’s call, on October 14, to all participants in the process to flag the challenges that government and the citizenry face in applying the law. What must follow then is the obligation so clearly enunciated in Section 4 (1) of the Act.

“ Every public authority shall — a) maintain all its records duly catalogued and indexed in a manner and form which facilitates the right to information under this Act and ensure that all records that are appropriate to be computerised are, within a reasonable time and subject to availability of resources, computerised and connected through a network all over the country on different systems so that access to such records is facilitated”

And what then is a “public authority”? This covers any authority or body or institution of self-government established or constituted —

by or under the Constitution;

by any other law made by Parliament;

by any other law made by state legislature;

by notification issued or order made by the appropriate government, and includes any body owned, controlled or substantially financed; non-government organisation substantially financed, directly or indirectly by funds provided by the appropriate government.

The right to information includes the right to inspect works, documents, records, take notes, extracts or certified copies of documents or records, take certified samples of material, obtain information in form of printouts, diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts. It does not extend to information not held in material form.

The following are exempt from disclosure under Section 8 of the Right to Information Act:

Information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the state, relation with foreign state or lead to incitement of an offence.

Information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court.

Information, the disclosure of which would cause a breach of privilege of Parliament or the state legislature.

Information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information.

Information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information.

Information received in confidence from foreign governments.

Information which would impede the process of investigation or apprehension or prosecution of offenders.

Cabinet papers including records of deliberations of the council of ministers, secretaries and other officers.

Information which relates to personal information, the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual; infringes copyright, except of the state.

Where practicable, part of record can be released.

Intelligence and security agencies are exempt — except cases of corruption and human rights violation.

Third-party information to be released after giving notice to third party.

It needs, however, to be noted that under the proviso contained in Section 8(2), notwithstanding any of these exemptions or indeed the Official Secrets Act 1923, a public authority may still allow access to information, if public interest in disclosure is deemed to outweigh the harm to the protected interests. And most exempt information is, at any rate, to be released after 20 years, with some exceptions, although also provided that the information, which cannot be denied to Parliament or a state legislature shall not be denied to any person. Unfortunately, on this provision there has been no endeavour by government despite pronouncements of the Central Information Commission, thus making more complicated for itself government’s responsibility in keeping information secret.

What is noteworthy is that this law specifically seeks universal access, especially to the poor. It is, of course, open only to citizens of India, as per Section 3, but the fee is also required to be at a reasonable level, although the quantum is specified only by rule, and there is no fee for BPL persons. Assistant public information officers are required at sub-district levels to facilitate the filing of applications and appeals. Hence, heads of post offices have been given this authority by the Central government.

There is no need to specify a reason for seeking information or to provide any other personal details. There is a provision that the PIO reduce oral requests into writing and for the PIO to provide all required assistance, including to disabled persons. Information is to be provided in local languages. There is provision for damages.

This placed a host of responsibilities on public authorities, who were required to appoint PIOs/assistant PIOs within 100 days of the RTI enactment and to begin maintaining, cataloguing, and indexing, computerising and networking records in accordance with Section 4(1) (a).

If this has not happened to the extent required, the government, which appoints CPIOs from officers at a relatively junior level, has only itself to blame. These authorities were to publish, within 120 days of enactment, a whole set of information, and update it every year.

This was to include publishing suo moto all relevant facts while formulating important policies or announcing the decisions which affect the public, and also providing reasons for its administrative or quasi-judicial decisions to all affected persons. Authorities were made primarily responsible for raising awareness, educating and training officials and the public. Every department was expected to develop and organise educational programmes to advance the understanding of the public, particularly the disadvantaged, to exercise the right to information. Not having done so, the government can hardly blame the public for misuse.

Government was thus to encourage public authorities to participate in programmes, promote timely and effective dissemination of accurate information, train PIOs and produce relevant training materials. To achieve this, government has developed a scheme for e-governance. It is agreed that for the success of this initiative, RTI is essential. Here there has been progress, but only at the level of the Centre.

Key to the effective functioning of the Act is the Gram Panchayat, which can be the repository for scheme information, citizen surveys, fiscal information, etc. But this will happen only with the devolution of functions, funds and functionaries.

This body can then become the service provider for over-the-counter services, certificates, taxation, billing, licences, ration cards, and a host of such services at the grassroots, working to keep the citizenry informed as a group (Gram Sabhas) and as individuals, whose concerns and questions can also be appropriately addressed by reference to the relevant authority. This would ensure better feedback and accountability.

In reviewing the enforcement of the RTI Act, it would be wise to bear in mind the remarks of Justice Mathew on behalf of the bench in State of UP v Raj Narain (1975), oft-quoted in judicial circles while debating the law:

“In a government of responsibility like ours, where all agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries… to cover with a veil of secrecy the common routine business, is not in the interest of the public.”

 The writer was chief information commissioner to the government of India

http://www.indianexpress.com/news/holding-government-to-account/868485/0

http://www.indianexpress.com/news/questions-about-answers/869178/0

Shortcomings and malignant provisions

Union Ministers and the members of Lokpal Bill drafting committee P. Chidambaram, Kapil Sibal and Salman Khurshid address a press conference in New Delhi recently.

Union Ministers and the members of Lokpal Bill drafting committee P. Chidambaram, Kapil Sibal and Salman Khurshid address a press conference in New Delhi recently.

ANIL DIVAN IN THE HINDU

A few major provisions of the Government Lokpal Bill make for a ticking time bomb. It is better to have no Lokpal rather than have the one envisaged by the government.

There is unanimity of opinion that corruption at the higher levels of governance can be fought by a strong, credible, effective and independent Lokpal mechanism. As far back as 1979, the Supreme Court, speaking through Justice V.R. Krishna Iyer, observed that “corruption and repression — cousins in such situations — hijack developmental processes.” President Pratibha Patil, in her Independence Day-eve speech, lamented that “corruption is a cancer affecting our nation’s political, economic, cultural and social life. It is necessary to eliminate it.” In his Independence Day speech, the Prime Minister expressed the need for “a strong Lokpal to prevent corruption in high places.”

The major flaw

In the Indian system of governance, a fundamental flaw is that it is impossible for the Central Bureau of Investigation, the premier anti-corruption investigative agency that is subordinate to the Prime Minister’s Office (PMO), to even commence an inquiry or investigation into allegations of corruption against the higher bureaucracy — which often acts in concert with the political executive — without the prior approval of the Central government under Section 6A of the Delhi Special Police Establishment Act. Thus, the CBI is unable to enforce the postulate laid down by Chief Justice J.S. Verma in the Jain Hawala case: “Be you ever so high, the law is above you.”

The golden key to combating corruption is to fashion an anti-corruption police force completely independent of the executive.

Government Lokpal Bill

In the short space of an article, one can only highlight and emphasise a few major provisions which are insidious and malignant in the Government Lokpal Bill. Unless these are dropped, the Bill will be a ticking time bomb. It is better to have no Lokpal rather than have the one envisaged in the government Bill.

Appointment of Chairperson and other members

The structure of the Government Lokpal Bill is such that it gives a dominant and preponderant voice to the political executive in the selection of the Lokpal (Chairperson and members).

The Selection Committee (Clause 4) consists of the Prime Minister (Chairperson); the Speaker of the Lok Sabha (normally appointed by and owing allegiance to the ruling combination); a Union Cabinet Minister nominated by the Prime Minister; and one eminent jurist and one person of eminence in public life, both nominated by the Central government.

Thus, in a nine-member Selection Committee four will be nominees of the government, and one the Speaker of the Lok Sabha, all enjoying the confidence of the ruling party. The other four members are Leaders of the Opposition in the Lok Sabha and the Rajya Sabha, a sitting judge of the Supreme Court and a sitting Chief Justice of the High Court — both nominated by the Chief Justice of India. How will such a committee inspire public confidence or ensure a credible and independent Lokpal mechanism?

As against this, the Jan Lokpal Bill (Version 2.3) provides for a Selection Committee consisting of the Prime Minister, the Leader of the Opposition in the Lok Sabha, two judges of the Supreme Court and two permanent Chief Justices of the High Courts selected by collegiums of all Supreme Court Judges (four judicial members in all), the Comptroller and Auditor-General, the Chief Election Commissioner, and all previous chairpersons of the Lokpal.

It means a total of two politicians, four superior court judges, the CAG and the CEC. Surely, such a Selection Committee would inspire greater public confidence. The stranglehold of politicians representing the ruling combination in the Government Lokpal Bill is a highly malignant provision that requires to be summarily dropped.

Exclusion of Prime Minister

In an earlier article (The Hindu, July 1, 2011), I argued that the Prime Minister should be under the Lokpal. Article 361 of the Constitution grants immunity from criminal proceedings only to the President and the Governors (earlier the Raj Pramukhs) during their term of office. No immunity from criminal or civil liability has been granted to the Prime Minister. Thus the basic structure of the Constitution negates and denies any immunity to the Prime Minister.

Procedure and opportunity to suspected accused

Clauses 23 to 29 completely undermine the provisions and procedures under the Code of Criminal Procedure which apply to all crimes, including crimes committed under the Prevention of Corruption Act, 1988. Under the normal procedure, the police have the power to investigate, gather physical and scientific evidence, interview and interrogate individuals who can assist the investigation and, thereafter, furnish their final report to the appropriate court under Section 173 of the Code. It is then for the court to either frame charges against the potential accused or discharge them. During the investigation and the final report (popularly known as the charge sheet), there is no question of giving any opportunity to show cause or disclose to the accused the material or the evidence collected.

Under Clause 23, an opportunity to be heard, and a copy of the complaint and material collected, are to be given to the suspect at several stages before the completion of the investigation. Under Clause 24, inspection is to be allowed to the suspect when an investigation or inquiry is “proposed to be initiated by the Lokpal.” Similarly, under Clause 25, an opportunity to be heard is to be given to any person “other than the prospective accused.”

These provisions are bound to undermine effective investigation and collection of evidence. The prospective accused will act as an active terrorist to destroy the Lokpal’s efforts. Apart from going for judicial review at every stage, alleging lack of adequate opportunity to be heard, the potential accused, after inspection of the material, would have the opportunity to approach witnesses, intimidate or corrupt whistleblowers, and fabricate evidence and interfere with the investigation. These provisions are a ticking time bomb which can be detonated by the prospective accused at a time he chooses.

Inclusion of NGOs as public servants

Clause 17 of the government Bill and related clauses expand the definition of “public servant” to include non-governmental organisations/ societies/ their office-bearers who receive donations from the public. Even autonomous NGOs not controlled by the government but aided by it are brought within the definition of ‘public servant.’ This is the most mischievous provision with a view to harassing, intimidating and blackmailing NGOs/societies and their office-bearers who are the principal activists and whistleblowers under the Right to Information Act, and who are leading the movement for an effective Lokpal to curb corruption at the highest levels. These NGOs are liable under the normal criminal law and should be excluded from the definition of ‘public servant.’

Investigative machinery and prosecution wing

Under the Constitution, there are checks and balances on the political and bureaucratic executives. Broadly they are the judiciary, the CAG, and the CEC. Members of the higher judiciary, the CAG and the CEC cannot be removed by the political executive except by impeachment. This secures for them an independence from the executive which enables them to invalidate, audit and check the excesses of the executive. However, the anti-corruption machinery as indicated above is completely flawed.

It is essential that either the anti-corruption branch of the CBI be transferred immediately to function under the Lokpal mechanism so that it is completely free from executive interference, or the entire CBI be brought under the Lokpal mechanism and be made subordinate to it.

Once the investigative machinery is put in place under the Lokpal, it should be a separate ‘cadre’ and none of its members should go back to or be transferred to any Central or State cadre or other investigative organisations. In substance, the Lokpal and the investigative machinery should be totally insulated and independent of all outside interference, influence, favours and patronage. If the CBI is not under the Lokpal, turf wars and jurisdictional disputes between the CBI and the Lokpal will lead to litigation, scuttling the efficient working of the Lokpal.

Unless these fundamental flaws are eliminated, it is best to scrap the Government Lokpal Bill and continue with the present system because the remedy would be worse than the disease. The Lokpal as contemplated by the government will be misused by the executive to silence the anti-corruption movement. The efforts of civil society led by Anna Hazare will come to naught.

Compromise, accommodation and give-and-take are essential to work a successful and vigorous democracy. In conclusion, remember what Mahatma Gandhi said: “All compromise is based on give-and-take, but there can be no give-and-take on fundamentals. Any compromise on fundamentals is a surrender. For it is all give and no take.”

(Anil Divan is a Senior Advocate, and president of the Bar Association of India. e-mail: abdsad@airtelmail.in)

http://www.thehindu.com/opinion/lead/article2586273.ece

WITNESS EXAMINATION THROUGH VIDEO CONFRENCING

Once the victim is rehabilitated, it is not in her interest to recall her to the court of law for any purpose including evidence, as she is compelled to relive the trauma and indignity. Therefore, it would be better to take into consideration the statement given by her before repatriation and act accordingly. If, however, her recall is necessitated, it should be done in such a way that it causes  least harm to her. Dislocating her from the rehabilitated ambience usually causes serious problems. Therefore, if her statement is to be recorded, or evidence taken, it should be done in commission  or through video conferencing at an appropriate place which would create least disturbance and discomfort to the person concerned. The Supreme Court has held in State of Maharashtra vs Praful Desai (2003 4 SCC 601) that the recording of evidence by way of video conferencing might be done in cases where the attendance of the witness cannot be ensured without delay, expense and inconvenience. It was also held by the apex court that recording of evidence by video conferencing was a ‘procedure established by law’ under Article 21 of the Constitution and did not violate the rights of the accused. The court observed that although the rights of the accused must be safeguarded, they should not be overemphasised to the extent of forgetting that the victim also has rights. Therefore, the ITPA should make it mandatory to provide video conferencing facility at the place where the victim would find it comfortable. The victim’s best interests should be the deciding factor in choosing the place and time of video recording/conferencing.

Another order by the High Court of Delhi has made notable improvement in the field of criminal jurisprudence and victim protection in India. On 27 February 2004, the High Court delivered this order, in Crl. M.1467/04 in Crl. W. 532/1992, in a petition filed by an NGO Prajwala of Hyderabad through its advocate Ms. Aparna Bhat. Thanks to the intervention of the Delhi High Court, girls rescued from the brothels in Delhi were repatriated and rehabilitated in their hometowns in several parts of India including Andhra Pradesh. The rehabilitation work was carried out by the Government of Andhra Pradesh with the involvement and participation of the NGO, Prajwala. Many of these girls who had been rehabilitated to districts like Nellore, were summoned by the trial court in Delhi for providing evidence against the exploiters. Since these girls were repatriated after spending considerable time in the rescue home in Delhi, ideally speaking, their statements should have been recorded by the trial court during that period. However, due to the delays in the trial, this was not done and, therefore, these girls were called to Delhi. The government agencies in Andhra Pradesh tried their best to get in touch with these girls. Since their efforts failed, Prajwala was asked to step in again. The NGO realised that these girls were reluctant and unwilling to go to Delhi mainly because they did not want to relive the trauma and agony which they had undergone. It was decided to move the trial court for facilitating the recording of evidence of these girls to their hometowns. However, the court did not approve of this for want of required infrastructure. The matter was, therefore, taken up with the High Court of Delhi which directed the government counsel to look for alternatives. Since National Informatics Centre did not have the required facilities, the counsels for the government and the NGO took initiative, interacted with the government of Andhra Pradesh and found that video conferencing facility was available in Andhra Bhawan, New Delhi. The A.P. government agreed to provide this facility, which they have in Delhi and the concerned district headquarters in Andhra Pradesh. The High Court confirmed the availability of these facilities at A.P. Bhawan by judicial officers and then gave orders for recording the evidence of the victims through video conferencing. The court also directed that the state of Andhra Pradesh make appropriate arrangements for the same and that the trial court ensure adequate safeguards enumerated in the decision of the Supreme Court in State of Maharashtra vs.Dr. Praful B. Desai, 2003 4 SCC 601. This was a historical decision of the Delhi High Court because, for the first time in India, inter-state video conferencing was being utilised in criminal trials.  Once implemented, this judgment can go a long way in protecting the rights of trafficked victims and, therefore, is a judgment truly honouring the human rights of the victims.