Amendments of the Registration of Births and Deaths Act, 1969 to include Registration of Marriages

NATIONAL LEGAL RESEARCH DESK

The Union Cabinet today approved the introduction of a Bill in the Budget Session of Parliament to amend the Registration of Births and Deaths Act, 1969 to include registration of marriages as well, so that the existing administrative mechanisms will be able to carry out such registration of marriages in accordance with the specified procedures and be able to maintain necessary records and statistics for registration of marriages also.

The Cabinet also approved introducing a Bill in Parliament to further amend the Anand Marriage Act, 1909 to provide for registration of marriages under the Act.

The proposed Bills will be beneficial for the women from unnecessary harassment in matrimonial and maintenance cases. It will also provide evidentiary value in the matters of custody of children, right of children born from the wedlock of the two persons whose marriage is registered and the age of the parties to the marriage.

The Hon`ble Supreme Court vide its judgment dated 14.02.2006 in Seema Vs. Ashwani Kumar (AIR 2006 S.C 1158) has directed the State Governments and the Central Government that marriages of all persons who are citizens of India belonging to various religious denominations should be made compulsorily registerable in their respective States where such marriages are solemnized and inter alia directing that as and when the Central Government enacts a comprehensive statute, the same shall be placed before that Court for scrutiny.

The Committee on Empowerment of Women (2006-2007) in its Twelfth Report (Fourteenth Lok Sabha) on “Plight of Indian Women deserted by Indian husbands” has viewed that all marriages, irrespective of religion should be compulsorily registered and desired that the Government to make registration of all marriages mandatory, making the procedure simpler, affordable and accessible.

The 18th Law Commission of India in its 205th Report titled” Proposal to Amend the Prohibition of Child Marriage Act, 2006 and Other Allied Laws” vide paragraph (iv) recommending that “registration of marriages within a stipulated period, of all the communities, viz. Hindu, Muslim, Christians, etc. should be made mandatory by the Government”.

The 18th Law Commission of India further in its 211th Report titled “Laws on Registration of Marriage and Divorce- A proposal for consolidation and Reform”, recommending for a Parliamentary Legislation on Compulsory Registration of Marriages by enacting of a “Marriage and Divorce Registration Act” which may be made applicable to the whole of India and to all citizens irrespective of their religion and personal law and without any exceptions or exemptions”.

The Registration of Births and Deaths Act, 1969 (18 of 1969) is an Act to provide for the regulation of registration of births and deaths and for the matters connected therewith. Accordingly, provisions have already been provided in the said Act for Registration establishment consisting of Registrar-General, Chief Registrar and Registration Division, District Registrars and Registrars. Further, procedures for registration of births and death and for maintenance of records and statistics are provided for in the said Act. Also, by virtue of the powers conferred under section 30 thereof, rules for compulsory registration of births and deaths have been framed by all the State Governments and Union territory Administrations. Therefore, if the said Act is suitably amended to include registration of marriages as well, then the existing administrative mechanisms will be able to carry out such registration of marriages in accordance with the specified procedures and be able to maintain necessary records and statistics for registration of marriages also.

The registration of marriages of the parties under the proposed amendment would not affect any right recognized or acquired by any party to marriage under any law, custom or usage.

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Revised SOP issued for Lawful Interception of Communication

The Central Government, with regard to Central Intelligence and Security Agencies, keeps updating the internal SOPs/instructions for processing, executing and conducting oversight of interceptions of telephones. The Government constituted an Inter-Ministerial Group headed by Home Secretary to consider issues relating to institutional frame work of Government for interception of messages/tapping of telephones, e-mail etc. As a result, on 19th May 2011, revised/updated SOPs to deal both with changing technology and ensuring a strict compliance of Rule 419-A were issued. The procedure to be followed for lawful interception of telephones permissible under Section 5(2) of the Indian Telegraph Act 1885 is governed by Rule 419-A of the Indian Telegraph (Amendment) Rules, 2007.

Section 5(2) of the Indian Telegraph Act, 1885 provides for lawful interception in the interests of the sovereignty, and integrity of India, the security of the State, friendly relations with Foreign States or public order or for preventing incitement to the commission of an offence. This Section read with Rule 419(A) of the Indian Telegraph (Amendment) Rules, 2007 imply statutory requirement that specific order/authorization of the Government is required for any lawful interception of communications.

Therefore, the Agencies have to statutorily obtain specific authorization from the Competent Authority (Union Home Secretary in the Central Government and the State Home Secretary for the States) for each case of lawful interception in accordance with provisions of Section 5(2) of the Indian Telegraph Act 1885 and Rule 419(A) of the Indian Telegraph (Amendment) Rules, 2007. Accordingly, it would be inaccurate to state that any Agency of the Centre or State Government, per se, is given a general authorization to undertake Lawful Interception. However, the Central Government from time to time lists some agencies which may make such requests for authorization in specific cases. The issue of listing NTRO can be considered & decided as per the national security imperatives, whenever required.

CENSORSHIP AND THE STATE

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

The Lokpal and the CBI

JAN LOKPAL BILL

JAN LOKPAL BILL

R K RAGHAVAN IN THE HINDU

The ushering in of a Lokpal should in no way dilute the CBI’s legal authority or operational effectiveness.

It is a happy turn of events that there is, at last, a kind of truce between the Central government and the Anna Hazare Team on the Lokpal issue. Both sides have displayed a measure of maturity that augurs well for the future of public life in India. The stage is now set for some animated but objective discussion of the law that will concretise the idea of a strong ombudsman. It is not enough for the two sides to say that they are for a credible Lokpal. They need to go the extra length to accommodate each other’s sensitivities. Otherwise things will be back to square one. This is why a lot of importance should be attached to the meeting of the Parliamentary Standing Committee scheduled in the next few days.

The Anna Team’s focus is rightly on the status of the Central Bureau of Investigation (CBI) in the future scheme of things. With all its faults — some real and many imaginary — the CBI is still the best bet to strike at the venality that marks public life in India.

To say that politicians alone are guilty of corruption, an impression given by the Anna Team, is greatly skewed. Civil service misdeeds are equally enormous and cannot be ignored. Take, for instance, the recent arrest of a senior Income Tax Department official who allegedly demanded a sum of Rs.50 lakh to overlook the suppression of unaccounted income by a company. Instances are legion of top officials of enforcement agencies asking for a bribe without any sense of shame or fear. The magnitude of corruption in the Central government departments is mind-boggling, and this is why we first need an effective anti-graft machinery at the Centre, rather than in the States. The corruption in the States could be tackled subsequently. If the Lokpal is unable to cut at the roots of the civil servant-politician nexus in promoting dishonesty, it would have hardly justified its creation.

The ushering in of a Lokpal should in no way dilute the CBI’s legal authority or its operational effectiveness. This should be the starting point for any discussions of the Standing Committee. A former Union Minister, referring to the plea for total autonomy for the CBI from the Executive, asked this writer some time ago as to who exactly the organisation should be answerable to if it wants to be autonomous — particularly when monitoring of all CBI cases by the judiciary was impractical. This query by an otherwise well-meaning public figure summarises the political perspective of the whole issue of the CBI’s autonomy. It reveals the unconcealed desire of the average politician to somehow retain at least a semblance of control over the CBI.

It is generally known that the senior bureaucracy is also not exactly unhappy with the current state of affairs wherein the CBI is under the thumb of the Department of Personnel. Perhaps the most significant move that came in 2003 was the insertion of Section 6A in the Delhi Special Police Establishment (DSPE) Act, 1946, making it mandatory for the CBI to get prior government permission before it can even proceed with a preliminary enquiry (PE) against an official of and above the rank of Joint Secretary. This was a dubious amendment to the Act, based on the specious ground of saving civil servants from needless harassment by the CBI. But it amounted to deliberate emasculation of an organisation that requires teeth to tackle public servant corruption. The provision has been questioned in judicial forums as violative of the fundamental right of citizens to equality before law. Let us hope that this issue is resolved soon in favour of maintaining the integrity of the public services.

It is against this backdrop that the Anna Team’s demand to bifurcate the CBI, attaching its anti-corruption wing with the proposed Lokpal machinery, should be examined. This is ostensibly in order to remove the organisation from the clutches of the Executive. The rationale is unexceptionable. The practicality of the proposed arrangement is, however, highly debatable.

The CBI does not operate with any watertight compartmentalisation of its numerous wings. No doubt there is a distinct Anti-Corruption Wing functioning at its headquarters. In the field units the distinction is, however, blurred. There is a pooling of resources at all levels when a major case, invariably a sensational conventional crime, is investigated by the CBI at the request of a State government or on the orders of a court. This will no longer be possible if a large chunk of the CBI representing the anti-corruption staff is removed and tagged on to the Lokpal. The current top brass of the organisation are reportedly opposed to such an arrangement, which would deny them the substantial manpower needed for non-anti-corruption work. The CBI’s resources are already quite slender, making it difficult to cope with the nearly 1,000 cases registered by it each year and about 7,000 cases that are on trial.

Following the Vineet Narain judgment (1997) by the Supreme Court, the superintendence of the CBI’s anti-corruption work is with the Central Vigilance Commission (CVC). This is a nominal arrangement which has worked reasonably well, because we have had some non-interfering and mature Central Vigilance Commissioners, and an equally responsible and self-effacing CBI leadership. Under an aggressive and egoistic CVC this arrangement could have become untenable. If, however, you want to disturb this stable state of affairs with a view to yielding to the demand of the Anna Team, the whole process of transition will have to be carefully conceived and worked out.

As one who has headed the CBI, I am totally against any dismemberment of the organisation. That would cause more harm than good to the objective of rooting out corruption. If the Lokpal becomes a reality, the most sensible thing to do would be to transfer the existing authority of superintendence of the CBI from the CVC to the Lokpal. Any other arrangement would result in the creation of two separate investigating agencies, namely, the CBI, and the small unit envisaged for the Lokpal. That would lead to confusion and a clash of functions. Along with such empowerment, the Lokpal could be conferred the authority (that currently vests with the government) to sanction the prosecution of public servants. This can be done by suitably amending Section 197 of the Criminal Procedure Code, 1973 and Section 19 of the Prevention of Corruption Act, 1988. The power enjoyed by the government under Sections 377 and 378 of the CrPC to deny or accord permission to the CBI to go on appeal or prefer a revision petition against the orders of lower courts could also be vested in the Lokpal. It should be remembered that we have been witness to totally political decisions in such matters. Finally, the entire budget allocation for the CBI could be placed at the hands of the Lokpal, so that the CBI enjoys freedom from any tendentious holding up by government of sanctions of money required for its day-to-day running and implementing its long-term projects.

All these suggested moves may be viewed as being too drastic. But, then, without them the CBI will remain tied to the apron strings of the Executive. The former Chief Justice of India, J.S. Verma, must be a disappointed man. His bold judgment in the Vineet Narain case was aimed at insulating the CBI totally from political caprice. If, however, in the public perception this has not materialised, both the organisation’s leadership and the executive will have to bear the cross.

The opportunity that is currently available to improve the image of the CBI through a thoughtful fusing of the agency with the Lokpal should not be frittered away. A lot of magnanimity on the part of the current Executive is called for. At the same time, the role of the media and the citizenry at large in bringing enough pressure for a reform of the system can hardly be overemphasised.

(Dr. R.K. Raghavan is a former director of the Central Bureau of Investigation.)

http://www.thehindu.com/opinion/lead/article2424159.ece

Cabinet approves the Lokpal Bill, 2011

The Union Cabinet today approved the proposal for the enactment of a new legislation in the form of the Lokpal Bill, 2011. The Bill provides for the establishment of the institution of Lokpal to inquire into allegations of corruption against certain public functionaries and for matters connected therewith or incidental thereto.

The Bill envisages setting up the institution of Lokpal consisting of Chairperson and eight Members with the stipulation that half of the Members shall be Judicial Members. It will have its own Investigation Wing and Prosecution Wing with such officers and staff as are necessary to carry out its functions.

The Lokpal shall inquire into allegations of corruption made in respect of Prime Minister, after he has demitted office; a Minister of the Union; a Member of Parliament; any Group ‘A’ officer or equivalent; Chairperson or member or officer equivalent to Group ‘A’ in any body/ Board/ corporation/ authority/ company/ society/ trust/ autonomous body established by an Act of Parliament or wholly or partly financed or controlled by the Central Government; any director, manager, secretary or other officer of a society or association of persons or trust wholly or partly financed or aided by the Government or in receipt of any donations from the public and whose annual income exceeds such amount as the Central Government may by notification specify. However, the organisations created for religious purposes and receiving public donations would be outside the purview of Lokpal.

The Lokpal shall not require sanction or approval under Section 197 of the Code of Criminal Procedure, 1973 or Section 19 of the Prevention of Corruption Act, 1988, in cases where prosecution is proposed. The Lokpal will also have powers to attach the property of corrupt public servants acquired through corrupt means

Enactment of a new legislation in place of Benami Transactions (Prohibition) Act, 1988 – Introduction of the Benami Transactions (Prohibition ) Bill, 2011

The Union Cabinet today approved the proposal for the enactment of a new legislation in the form of the Benami Transactions (Prohibition) Bill, 2011 to replace the existing Benami Transactions (Prohibition) Act, 1988 and for its introduction in Parliament. During the process of formulating the rules for implementing certain provisions of the present Act which was passed in 1988, it was found that owing to infirmities in the legislation, formulation of the rules would not be possible without a comprehensive legislation by repealing the Act. The Bill contains elaborate provisions dealing with the definition of benami transaction and benami property, prohibited benami transactions, consequences of entering into a prohibited benami transaction and the procedure for implementing the benami law. Properties held by a coparcener in a Hindu undivided family and property held by a person in fiduciary capacity are excluded from the definition of benami transaction. Further, properties acquired by an individual in the name of spouse, brother or sister or any lineal ascendant or descendant are benami transactions which are not prohibited. Consequently, they are not subject to penal provisions.

Where any person enters into a benami transaction in order to defeat the provisions of any law or to avoid payment of statutory dues or to avoid payment to creditors, the beneficial owner, benamidar and any other person who abets or induces any person to enter into such benami transaction, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and shall also be liable to a fine. A benami property shall also be liable for confiscation by the Adjudicating Authority after the person concerned has been given due opportunity of being heard.

Background:

The major infirmities of the existing Act were:

  1. Powers of a civil court have to be conferred on the authorities under the Act.
  2. Specific provisions have to be introduced for vesting of confiscated property with the Central Government.
  3. An appropriate appellate structure has to be defined, while barring jurisdiction of a civil court against an action taken by the authorities under the Act.
  4. Matters of procedure relating to its administration, notice of hearing to parties concerned, service of notice and orders, powers of the competent authority relating to gathering of evidence etc are to be provided.
  5. The word ‘wife’ needs to be replaced with the word ‘spouse’ and property purchased in the name of certain other family members is to be allowed under the Act.

‘Bill says Lokpal should prove he has been a fighter against corruption. Where are those people? In media and civil society?’

SATYANANAD MISHRA CHIEF INFORMATION COMMISSIONER IN WALK THE TALK WITH SHEKHAR GUPTA IN THE INDIAN EXPRESS

In a season when every self-styled warrior against corruption is trying to look for a new weapon to fight it, my guest today is Satyananda Mishra, Chief Information Commissioner—someone who has in his control the strongest of those weapons, the RTI.

Actually when it all began, nobody thought it would be so effective. In a period of five-and-a-half years, it has touched the hearts and minds of people. The number of RTI applications is doubling every year.

As a former bureaucrat, you don’t see merit in what so many of your colleagues say—that RTI has now become a nuisance?

If you are in the government, then you will look at it as a nuisance. When you have to provide certain information, it might be embarrassing. But we must realise it’s very important to have this kind of a law.

But do you think people have learnt to use the RTI?

Quite a few have, but we should not be disappointed at the pace of its progress. No other law would have got such enthusiasm in five-and-a-half years. Around three million people are seeking information every year.

But this has also caught the bad guy’s attention, with so many RTI activists being attacked.

Firstly, anyone who seeks information can’t be called an RTI activist. An RTI activist is someone seeking information for public good. Any good district magistrate or superintendent of police will know who the RTI activists in their area are and they should provide them the necessary cover.

The potential of the RTI is now being realised, people are learning to use it. Yet, the discourse now seems to be completely different—from sledgehammer to machine gun to a canon now to a nuclear weapon.

We have a tendency—both the government and the people—to think that if you have a problem, then a law can solve it. I have seen it in Madhya Pradesh where a dozen laws were made in a year. A Corruption Eradication Act was enacted in the early Eighties, but nothing happened.

You have said that if the Lokpal comes into being, you will have to paratroop Yudhishtir to India in Kalyug.

Yes, I said that. One of the proponents of that Bill is that it will have 15,000 people. Where will you get so many people with unimpeachable integrity, who have shown their resolve for fierce independence, with no track record of even a complaint against them? Where are those people?

Why the Yudhishtir simile?

In the Mahabharata, he was the paragon of all virtues, so the Lokpal under discussion is a person who should have these attributes, only then you will be able to tower over the Supreme Court judges, the Cabinet secretaries, Army Chief, Air Chief, all CAGs, CECs; that’s impractical.

Impractical or impossible?

Both. Having been a secretary in the government of India in charge of some of these agencies, I can tell you that it has been such a difficult thing to get the personnel… getting 11 people may not be so difficult. Even then I think it will be very difficult unless you are going to choose some of the mediapersons who have been campaigning against corruption.

Because one of the attributes of the new Lokpal would be that he should prove that he has been a fierce fighter against corruption. I can’t produce such a certificate. Who in the government will be able to produce a testimonial, because there is a clause that the applicant for the post of Lokpal will have to produce documentary evidence for that.

So no one in the government can produce such evidence?

Only people in media and civil society will be able to do that.

In this complicated country, even Yudhishtir was made to tell a lie and he did it under the divine advice of Lord Krishna. Governance is complicated, you said the law seems to have been drafted by people who don’t know how government functions.

Government decision-making is not simple. There is no black and white; rules are being made, they are being changed from time to time. That means the government is in a dynamic situation, engaging with the realities around and then changing itself. Of course, the government is slow, but nevertheless it changes. So there can’t be a body which is distanced from the talk. The premise is that it should have no linkage with the government; being under the control of the government and being distant from the government are completely different. If you are completely distant from the government, you are totally unaware of what is going on in the government. You can’t appreciate how decisions are being made.

Jayalalithaa now says that Lokpal will be a kind of parallel government.

From the structure of the Bill, as it exists, you will need another Shastri Bhavan or Nirman Bhavan to house the new Lokpal. Because if they have to look into complaints against 42 lakh central government employees, imagine if there are complaints against even 1 per cent of them, that is 42,000 complaints. And they have promised that every single complaint will be looked into. So think how many people will be required to look into that.

Have you seen complaints filed against your colleagues—you were secretary (personnel), DoPT?

Yes, I saw a complaint against one of the secretaries in which the complainant had taken the Delhi telephone directory and collected eight properties bearing the surname of this particular individual, claiming these properties belong to this officer and he has not reported it in the annual property return. So the inquiry began. Currently, the inquiry is done discreetly. Under the proposed Lokpal, the inquiry will be public. The data will be videographed and probably even telecast in the evening. Just imagine what would be the authority of the secretary when everyone in the department will be talking about him that this fellow has eight properties. Maybe at the end of the month you will say the complaint was wrong, but his reputation has been tarnished.

What about the case of this secretary, did you find any substance in the complaint?

No, none. There must be some respect for the system.

In your own interactions, have you found this respect lacking?

Yes. It seems we are dealing with a ‘gone’ case. Every system will have to have a compass. It is a huge government; there are millions of people working within this who are not so bad. And then there is a motivational factor. If you think everyone is corrupt and completely beyond redemption, then why will young people choose civil services? They have many other choices. Anyway, the quality of people joining the services is a matter of worry.

And you think that if this comes in, then simpler people will not want to come?

Yes, this will be one of the factors. When you choose a career, you evaluate the environment in which you will work. No one is saying there should be no inquiry. My personal objection to the architecture of this Bill is not about the intent—the intent is to punish—but the details of this are premised not on a desire to improve things, but on a desire to spite, to smother.

So you certainly don’t want the judiciary and the Army under this?

I don’t know whether the Army or judiciary should be brought under this or not. But whoever is brought under this should be brought under an independent Lokpal with sufficient inbuilt checks and balances. The present Bill structure doesn’t tell me to whom the Lokpal will be answerable.

And you may find one Yudhishtir, how will you find a succession of Yudhishtirs? And eleven of them at one time?

Not just eleven, several thousands of them because the Bill very conveniently defines who a Lokpal is. He is not only these eleven people, but also the thousands of people, including the peons, who will be the Lokpal. It says every employee of the Lokpal will be called a Lokpal and will have his powers. That’s the definition in Section 2 of the Bill.

What about the two other contentious questions? One is whether to put the PM under this mechanism or not?

This is something on which you and I could have extremely divergent opinions. Someone like Justice Verma has argued why he thinks the PM should not be there. He feels that in the kind of system we work, if the PM has a series of complaints pending against him and inquired into in by the Lokpal, even if he is not summoned to their office, it will impact his national and international image. One has to be extremely careful in finally deciding whether authorities such as the PM and CJI should be brought under this or not.

How about the CBI? You were Secretary, DoPT and the CBI came under your control. What’s your take on the CBI being brought under the RTI?

When the RTI was made in 2005, there were 22 organisations which were put in the second schedule, taking them out of the RTI. They were security and intelligence agencies. The DoPT was framing the law. At that time, I don’t know why they didn’t think about this. Why did they take five-and-a-half years to think about the need for bringing the CBI under this?

So are you open-minded or do you prefer that the CBI be brought under this?

We have no problem with the CBI being under the RTI. In the last five years, I can assure you, that the CIC has not passed a single order which has put an obstacle in the right endeavours of the CBI.

Because your predecessor (Wajahat) Habibullah is a strong proponent of the CBI coming under the RTI. Two-and-a-half years ago, he said the RTI is a law whose reach and power is expanding every day. Has something about the law surprised you?

Yes, it has a surprising reach and a surprising way of empowering people. Normally, private banks are outside the RTI. The RBI has issued an advisory to ICICI Bank; somebody went to the RBI and asked for a copy, the RBI said no. The appeal came to us so we decided that the advisory should be given. Then ICICI went to the Bombay High Court and got a stay. The case was sent back to us so we passed an order that we don’t see any reason for changing it. So imagine a citizen doggedly pursuing the might of huge banks. But for this law, who would stand up like this?

Today if you see the discourse, Indian bureaucracy seems to be the root of all evil. Will you defend your profession?

I will and I’m grateful to you for not using the word ‘babu’. I think there is a complete disconnect somewhere and to a great extent, we in the civil services are also responsible for losing the trust and affection of the people. The people must be patient and kind because we are not dealing with foreign civil services, we are dealing with our own country’s civil service. Most of the people who are criticising civil services would have someone from their family in the services.

And your experience is that civil servants are either thieves or are honest?

I completely deny this charge that civil servants are corrupt. Yes, there are some people, but they are there in every walk of life.

In a small minority or in a substantial minority?

In a minority, certainly not the majority. Among the 42 lakh government employees, I don’t think the number of corrupt people will be (more than) 5 per cent or 10 per cent.

So this Lokpal will have one Lokpal for 10 corrupt people.

I can assure you that complaints are received against everybody, good or bad. Since this law proposes that every complaints will be looked into…

So these 15,000 people will become overworked very soon.

Yes, exactly.

You were in the Madhya Pradesh cadre. One of the many interesting things you have done is as the development commissioner for some of the most backward parts of the state, which also had mining. Describe some of the corruption you saw there and what tools did you find there to fight it?

In those days, in the late 70s, when I was in Korba, it had the biggest coal mines in the country—now in Chhattisgarh. Stealing coal from the mines and selling it in the black market was rampant. It was always alleged that some of the coal mine officials were mixed up with these people, you may call them the mafia. From time to time, we conducted raids and cops would detain people.

What methods did you find to empower people, to prevent exploitation because in that may lie some answers to the mining challenge for the future.

I was born in Keonjhar district of Orissa that has the second largest iron ore deposit after Bastar, and high poverty. Suddenly, the mine owners have become so rich and you can see the division in society. Unless something is done quickly and the share of the profit coming out of mines is distributed equitably among people living in the area whether or not they own the land…

What kind of a family do you come from?

I lost my parents when I was two. So my uncle, who was a teacher in a tribal school, brought me up. I began my education in a tribal school.

So you have seen a tough life.

Yes, I have seen the entire spectrum.

That’s the tragedy in India. A lot of people who talk about poverty haven’t actually been poor.

Yes. Moving from a place where I would trek 4 km daily until I passed high school to here in Delhi with you.

That is the beauty of this country, from poverty to power of this kind. So many of you in civil service are the salt of the earth and may your tribe increase and may we keep talking as the power of the law over which you preside unfolds in years to come.