LAW RESOURCE INDIA

Parks, sanctuaries on mining no-go list soon

Posted in ENVIRONMENT by NNLRJ INDIA on April 14, 2012

NITIN SETHI IN THE TIMES OF INDIA

NEW DELHI: A panel set up to review norms for no-go areas that will protect certain areas from commercial activity is likely to recommend mining should be disallowed in all national parks and wildlife sanctuaries in the country.

Sources in the government told TOI that the committee, headed by the Union environment and forests secretary, is likely to close the debate over no-go areas as it is not inclined to reassess protected areas in view of existing legal protection provided to national parks and sanctuaries that has been supplemented by orders of the Supreme Court.

The committee was set up after a Group of Ministers (GoM) on coal asked the environment ministry to reconsider parameters for no-go areas, where mining is not permitted. They were renamed inviolate areas and the ministry asked to set new norms to be put before the GoM.

The panel’s decision can make it difficult for any relaxation of a policy that has come under pressure from some central ministries and state governments. While ministries like coal and mining have been keen that the no-go policy be made less rigid, the committee does not seem to favour any dilution.

The panel, sources said, feels that parks and sanctuaries provided a higher level of protection under the Wildlife Protection Act, 1976, should not be re-evaluated for their forest value. The head of the Wildlife Institute of India, Forest Survey of India and other senior forest officers from the Centre and select states are the other members of the committee.

There are 661 such protected areas comprising of 100 National Parks, 514 Wildlife Sanctuaries, 43 Conservation Reserves and 4 Community Reserves that add up to roughly 5% of the country’s geographical area. This includes the tiger reserves as well.

The committee is likely to recommend that patches of forest be measured for their forest cover as well as biodiversity values. The panel has not considered the implications of the Forest Rights Act as yet. Under the existing rules, the ministry cannot allocate forest lands to development projects until the rights of the people under the FRA have been settled and the village councils of the affected area agreed to the diversion of forest.

Once the committee’s recommendations are considered by the GoM and approved, the ministry would be asked to again demarcate the no-go zones for mining, but this may happen only after the cases of Mahan and Chhatrasal blocks in Madhya Pradesh, which the GoM has pushed hard for clearing, are reassessed.

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

Posted in ACCOUNTABILITY, CONSTITUTION, CORRUPTION, DEMOCRACY, JAN LOKPAL by NNLRJ INDIA on July 19, 2011

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.

Conflicting signals

Posted in CONSTITUTION, COURTS, ENVIRONMENT, JUDICIARY, JUSTICE, SUPREME COURT by NNLRJ INDIA on May 24, 2011

V. VENKATESAN IN FRONTLINE

The Supreme Court judgment dismissing the curative petitions against its verdict in the Bhopal gas criminal case leaves observers nonplussed.

ON May 11, a Constitution Bench of the Supreme Court unanimously delivered a judgment that, perhaps, should never be considered a precedent. The Bench, comprising Chief Justice of India S.H. Kapadia and Justices Altamas Kabir, R.V. Raveendran, B. Sudershan Reddy and Aftab Alam, held that a judgment delivered by the Supreme Court could not bind a lower court and that no decision by any court, including the Supreme Court, could be read in a manner as to nullify the express provisions of an Act or the Code of Criminal Procedure (CrPC).

The judgment, according to several experts, is deeply flawed. The Bench delivered the judgment while dismissing curative petitions filed by the Central Bureau of Investigation (CBI) and others for recalling and setting aside the Supreme Court’s judgment in Keshub Mahindra vs State of Madhya Pradesh, delivered on September 13, 1996. In Keshub Mahindra, a two-judge Bench, comprising Justice A. Ahmadi and Justice S. Majmudar, had quashed the charge of culpable homicide under Section 304 (Part II) of the Indian Penal Code, framed by the sessions court, against nine Indian accused in the Bhopal gas disaster criminal case and had directed the trial court to frame charges against them under Section 304-A, IPC.

The three foreign accused – the then chief of the Union Carbide Corporation, Warren Anderson; UCC; and Union Carbide Eastern Inc. – were absconding and did not, like the Indian accused, appeal against the charge of culpable homicide framed by the trial court. The Madhya Pradesh High Court had upheld the charge of culpable homicide against the accused before they went in appeal in the Supreme Court.

Under Section 304 (Part II) of the IPC, whoever commits culpable homicide not amounting to murder shall be punished with imprisonment, which may extend to 10 years, or with fine or with both if the act is done with the knowledge that it is likely to cause death. Section 304-A, on the other hand, seeks to punish those causing the death of any person by doing any rash or negligent act not amounting to culpable homicide with imprisonment for a term that may extend to two years, or with fine, or with both.

More important, in Keshub Mahindra, the Supreme Court invoked its powers under Article 142 of the Constitution. This Article empowers the Supreme Court to pass such a decree or make such an order as is necessary for doing complete justice in any cause or matter pending before it, and such decrees or orders shall be enforceable throughout the country. In Keshub Mahindra, the court invoked this Article in order to avoid multiplicity of proceedings and to hold that the material led by the prosecution could only support charges under Section 304-A against the accused. It is fairly well settled that once a superior court holds that only Section 304-A of the IPC is applicable against the accused, Section 304 (Part II) will be inapplicable against the same accused in that case because the charge of negligence automatically excludes the charge of culpable homicide.

Surprisingly, the Supreme Court, in its May 11 judgment, did not deal with the question of how a decree or order made under Article 142 of the Constitution cannot be binding on a trial court. The curative petitions argued that because of the judgment in Keshub Mahindra, the trial court (Chief Judicial Magistrate, Bhopal) was barred from exercising its judicial power under Section 323 of the CrPC. This provision enables a magistrate to alter the charge of negligence by instituting the charge of culpable homicide against the accused and commit the case to the sessions court on the basis of evidence that comes on record during the trial.

But the trial court had observed that in view of the Supreme Court’s judgment in Keshub Mahindra, no court had the power to try the accused for an offence higher than the one under Section 304-A of the IPC. Accordingly, the Chief Judicial Magistrate, in his judgment delivered on June 7 last year, found eight of the Indian accused (one had expired during the trial period) guilty under Section 304-A and sentenced them to two years’ imprisonment.

Appeals have been filed in the sessions court with a prayer for the enhancement of the sentences against the accused on the grounds that the CJM erred in committing the trial of the case to the Sessions Court under Section 323 of the CrPC. These appeals, filed by the CBI and the State of Madhya Pradesh, are pending before the sessions court in Madhya Pradesh. Meanwhile, the CBI and others had filed the curative petitions in the Supreme Court in the hope of securing substantive justice for the victims and survivors of the disaster.

Patently flawed

Ironically, the Supreme Court’s holding in Keshub Mahindra was patently flawed as the CBI even in that case had argued that evidence on hand supported the charge of culpable homicide against the accused. But the May 11 judgment defends the Keshub Mahindra judgment to the hilt.

The Kapadia Bench observed: “In the 1996 judgment, this Court was at pains to make it absolutely clear that its findings were based on materials gathered in investigation and brought before the Court till that stage. At every place in the judgment where the Court records the finding or makes an observation in regard to the appropriate charge against the accused, it qualifies the finding or the observation by saying ‘on the materials produced by the prosecution for framing charge’. ‘At this stage’ is a kind of a constant refrain in that judgment.”

But those familiar with the Keshub Mahindra case in 1996 would aver that the Ahmadi-Majmudar Bench at that time simply and inexplicably ignored the materials cited by the CBI in support of the charge of culpable homicide. Therefore, its assertions that its “findings were based on materials gathered in investigation and brought before the Court till that stage” were not at all convincing, as they were contrary to facts.

In the curative petitions case, the Supreme Court was expected to examine the claims of the Ahmadi-Majmudar Bench for their veracity and set them aside, as they were contrary to facts. But the Kapadia Bench wrongly concluded that the 1996 judgment was not a fetter against the proper exercise of powers by a court under the CrPC and that the remedy for the curative petitioners lay in approaching the appellate/revisional courts to correct the magistrate who misread it.

The Supreme Court even felt vindicated by the arguments of the CBI and the State of Madhya Pradesh in the pending appeals before the Sessions Court in Madhya Pradesh. Observers are nonplussed that the apex court chose to rely on the arguments of a party in a pending case in a lower court, rather than independently examine the plea of the petitioners on merit.

‘Black day’

The Bhopal Group for Information and Action and other survivor organisations have expressed dismay over the judgment and called May 11 another black day for justice. They recalled that the Supreme Court, without conducting even one hearing, had dismissed the review petition filed by three survivor organisations against the Keshub Mahindra judgment in 1997. By its May 11 judgment, the Supreme Court heaped more injustice on the victims of the disaster, they said.

Legal researcher and commentator Usha Ramanathan, who has been closely following the Bhopal disaster litigation, put it succinctly: “The May 11 judgment shows that the Supreme Court lacked institutional memory with regard to what the Bhopal victims got out of the litigation. The option of curative petitions confers on the Supreme Court an extraordinary jurisdiction to correct its own past judgments. Yet, the court reaches an extraordinary conclusion and tells the lower court that it could violate its own order. It makes no sense. The court simply borrowed the formula suggested by the counsel for the accused. It should have either set aside the Keshub Mahindra judgment, or done nothing.”

The May 11 judgment also supports the view that the Supreme Court today sends discordant signals about the correct legal position. Recently, a two-judge Bench of the court led by Justice Markandey Katju passed strictures against a trial court judge for ignoring the Supreme Court’s ruling. The Kapadia Bench, however, thinks that there is nothing wrong if a lower court proceeds as if it is not bound by the Supreme Court’s ruling delivered earlier.

http://www.hinduonnet.com/fline/stories/20110603281110800.htm

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