A good Bill that disappoints

RAMASWAMY IYER IN THE HINDU

The Land Acquisition and Resettlement and Rehabilitation Bill 2011 seems to be driven by a desire to make acquisition for industrialisation and urbanisation easier.

One started reading the new Draft National Land Acquisition and Resettlement and Rehabilitation Bill 2011 with expectations of a great improvement over the 2007 Bills. There are indeed some very good features in the new Bill but, on the whole, one must regretfully report disappointment. Let us see how the Bill deals with some of the key issues involved.

(i) Acquisition of agricultural land: The Bill rules out the acquisition, not of all irrigated agricultural land, but of multi-cropped irrigated agricultural land. That limited exclusion seems rather half-hearted.

(ii) Avoiding or minimising displacement: A serious concern about the trauma of displacement does not seem to be the driving force behind the Bill. The principles of ‘no forced displacement’ and ‘free, informed prior consent’ are not mentioned. (Incidentally, the condition of consent by 80 per cent of the land-owners applies only to land-acquisition by the government for companies including PPP cases, and not to governmental acquisition for itself. It appears that there has been no dilution at all of ‘eminent domain’.) There are indeed a number of good provisions relating to displacement (SIA, review of SIA by an Expert Committee, consideration of ‘less displacing alternative’, public hearing, etc.), but the final decision is that of the bureaucracy. If a statutory clearance is needed for cutting a tree or for causing an environmental impact, should it not be required for displacing people? If the National Rehabilitation Commission mentioned in the 2007 Bill had been retained, a statutory displacement clearance by it could have been prescribed, but the present Bill envisages no such Commission.

(iii) Inadequacy of compensation: The present Bill increases the compensation amount significantly. This is welcome. Whether the earlier problems of delays and corruption in the payment process will disappear or diminish, remains to be seen.

(iv) The acquisition of land by the state for private companies: A view, held by many for a long time, is that there is no reason why the state should use its sovereign power to acquire land for private companies which are primarily in business for profit and not for conferring benefits on the public.

The 2007 Bills had sought to reduce the extent of land acquisition by the state for a company to 30 per cent , if the company purchases 70 per cent of the land needed by negotiation. The present Bill does away with the 70:30 formula, but provides for ‘partial’ acquisition by the state for a company if a company so requests. Presumably ‘partial’ acquisition could go up to near-full acquisition by the state. This seems a retrograde step.

(v) Private purchase: As for private negotiation, the Minister himself refers in his Foreword to the “asymmetry of power (and information) between those wanting to acquire the land and those whose lands are being acquired”, but the Bill provides no mechanism to reduce that asymmetry. It doubtless extends the R&R provisions to private negotiated purchases of land but provides no safeguard against unfair negotiation. (Even the extension of the R&R provisions to negotiated purchases — the legality of which may be challenged — applies only where a company buys 100 acres or more, and that threshold can be easily side-stepped in ways that need not be spelt out here.) One wishes that the Minister had strengthened the hands of the weaker party in the negotiation by providing — this is merely an illustration — that the compensation that the land-owners would have got under this Bill if the land had been acquired by the government (to be determined by the collector) would be the floor below which the price negotiated by the company with the land-owners shall not fall.

(vi) Change of land use: That safeguard might ensure a fair price, but there is also the question of transfer of agricultural land to non-agricultural use and the implications for food security. One possibility might be to say that all acquisition of land, including acquisitions for companies, must be only by the state; but that does not seem desirable and, in any case, it is not really an answer to the problem of land-transfer away from agriculture. Another possibility is that private purchases of agricultural land should be subject to state regulation from the point of view of land-use. That might be open to the objection of undue interference with a landowner’s right to sell his land. On the whole, the answer to the question of minimising transfers of agricultural land to non-agricultural use might lie in policies supportive of agriculture rather than in control or regulation over land transactions.

(vii) Definition of ‘public purpose: An issue that has persistently figured in the debate during the last decade or two is the need to narrow the definition of ‘public purpose’ and limit it to a few strictly governmental purposes (schools, dispensaries, etc). The present Bill moves in exactly the opposite direction. It defines ‘public purpose’ very broadly and leaves it to the bureaucracy to decide each case. Is it right to assume that any industry ipso facto serves a public purpose warranting the alienation of agricultural land? For instance, in the Singur episode land acquisition was for ‘industry’, i.e., Tatas‘ small car factory; was that ‘public purpose’? It can be so declared under the present Bill. Again, ‘infrastructure’ includes ‘tourism’, which would permit the acquisition of land for building hotels. It seems desirable to define ‘public purpose’ somewhat more stringently.

(viii) Coverage of ‘project-affected persons’: The Bill refers to loss of primary livelihoods but links it to the acquisition of land. The term ‘livelihoods’ is illustrated by a reference to the gathering of forest produce, hunting, fishing, etc; there is no reference to sellers of goods and services to the people in the project area, who will lose their livelihoods when the people whom they serve move away to resettlement areas. It is not clear whether they will be regarded as project-affected persons.

(ix) Social Impact Assessment: On Social Impact Assessment the present Bill is an improvement on the 2007 Bill, but the idea of SIA still falls short: it does not cover the disappearance of a whole way of life; the dispersal of close-knit communities; the loss of a centuries-old relationship with nature; the loss of roots; and so on. It is good that the SIA will be reviewed by an independent multi-disciplinary expert body, but it should first be prepared by a similar body. The Bill leaves the SIA to be prepared by the “appropriate government.”

(x) Rehabilitation package: The rehabilitation package is distinctly inferior to the packages already established in certain projects. The principle of ‘land for land’ has been abandoned. It figures only in the case of irrigation projects, and there the Bill envisages one acre per family instead of two acres as in the Sardar Sarovar Project. There are two points here. First, it is not clear why the Bill specifies irrigation projects; hydroelectric projects and flood control also have the same impacts as irrigation projects, and in any case many projects are ‘multi-purpose’ projects. Secondly, compensation and rehabilitation should have reference not to the nature of the project but to the nature of the impact. Whatever be the project, if an agricultural community is uprooted from its land and homestead, it has to be enabled to practise agriculture elsewhere, and not expected to become carpenters or weavers or traders.

(xi) Other matters: A number of officials and institutions are specified in the Bill, such as the Collector, Administrator of R&R, Commissioner of R&R, etc., but it is only in the R&R Committee that there is a significant non-official presence. The National Monitoring Committee is not ‘participatory’; apart from officials, it includes only a few experts. As indicated earlier, the idea of a National Rehabilitation Commission has been abandoned.

Incidentally, it is not clear why displacement by natural calamities should be brought within the purview of this Bill. There is a vital difference between unavoidable displacement caused by nature and deliberate displacement caused by human decisions.

Summing up, the Bill seems to be essentially driven by a desire to make land acquisition for industrialisation and urbanisation easier. It is clear that the Bill, which does contain many good features, nevertheless requires substantial improvement.

http://www.thehindu.com/opinion/lead/article2366476.ece

Draft National Land Acquisition and Resettlement and Rehabilitation Bill 2011

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A constitutional value for privacy

USHA RAMANATHAN IN THE HINDU

The fine line between transparency for accountability and transparency as a stand-alone ambition is getting fudged.

The notion of privacy has been under attack in recent times. Information technology, with its seemingly limitless capacity to hold, and give access to, all kinds of data and details about peoples, places, happenings and scores of other facts and fiction, has overwhelmed concerns about privacy. Facebook and its kin, though of remarkably recent origin, have already spun a web of forgetfulness around the significance of privacy.

The possibilities offered by technology have encouraged the state to get greedy for all that it can gather about people. In the beginning, it was only the census. The census was confidential. Not even a court could demand, and get, information about an individual collected as part of the census. The census was to get to know the state of the nation; not to delve into details about individuals. The census belongs to a tradition that is being edged into obscurity by more recent forays into data gathering and use.

Collection of statistics

In the past three years, the state has begun to work at enhancing its capacity to reach into people’s lives and know all. Take, for instance, the 2008 law authorising the collection of statistics. This replaced a law of 1953 vintage that was concerned with “industry, trade and commerce,” and sought the help of returns filed and registers maintained in collecting data and churning out statistics. The 2008 Act is ambitious and expands its interest to “economic, demographic, scientific and environmental aspects.” The 2008 law derives its information from multiple sources, including individuals and households who are bound to give information when asked, on pain of punishment if they refuse or give information that was misleading. The law provides no boundaries reining in the statistician’s curiosity. So, to study sex selective abortion, and given that the skewed sex ratio is a matter for national concern, if the statistician decides to seek household data on miscarriages and abortions, that information has to be provided. And, ultrasound clinics can be called upon to be “informants” (a term the law uses), and we may never know that our personal history has travelled from database to database. Confidentiality is crumbling away, unheeded.

In April 2011, rules made under the Information Technology Act 2000 directed that every user of a cyber cafe should provide information including name, address and identification particulars. This, along with the photograph of the person as also a list of sites the person visited, should be preserved for at least one year. The idea of the friendly neighbourhood cyber café owner being the repository of this information does not seem to have struck the rule-giver as bizarre. Another set of rules, also dated April 11, 2011, gives the government the power to demand and get any data including “sensitive” data from any body corporate. This may include information about mental, physical and physiological health, sexual orientation.

In December 2009, the Home Ministry set up and hosted NATGRID. As a part of this, 21 databases are to feed 11 security agencies. It is closed to scrutiny; so we will never know what is being done with data, but we will all be under surveillance. All, of course, in the interests of national security.

The unique identification, or UID, project, marketed as voluntary and increasingly being projected as mandatory so that enrolment targets can be met, is a tool to achieve convergence of data that exist on various databases. It is, of course, not only the state that has an avid interest in these developments. The “market” supports the idea of connecting databases. Convergence will make the fortunes and foibles of the population transparent to the marketers. It is no wonder that they do not protest.

The explanation

This extraordinary momentum to get to “know” the people of India is explained away as being necessary to curb terrorism, or to prevent leakage and corruption, or as being essential to reach services to the poor. Or to give identity to those who the state does not know exist, and which ignorance can only be remedied by giving them a number by which it may be known that they exist. Or to make it possible to produce good statistics, which could, just perhaps, aid better planning. Ominous terms such as surveillance and “social control” are hardly, if ever, invoked even if they underpin each of these exercises. Revealing a steep decline in respect for civil liberties even among those representing civil society, the National Advisory Council‘s Communal Violence Bill adopted the idea of interception and non-transmission of communication — before it was withdrawn following criticism.

The Jan Lokpal Bill is drenched in a notion of transparency that treats the “private” as the enemy of the public, and as dispensable. In all this, the fine line drawn in the Right to Information discourse between transparency for accountability and transparency as a stand-alone ambition is getting badly fudged.

Now, happily, it has come to pass that the Supreme Court had lent its weight to the constitutional value of privacy in the Black Money judgment (Ram Jethmalani vs. Union of India, decision of July 4, 2011). The government has been objecting to the judgment as being a case of judicial overreach. It is a little difficult to understand this stance. The government had set up a high-level committee comprising 10 senior officers from various revenue and investigating wings of the state. The Supreme Court renamed this as a Special Investigation Team, while including the Director of the Research and Analysis Wing (RAW) in it. It is not clear why, and maybe an explanation would have helped.

What has irked the state, however, is the inclusion of two former judges of the Supreme Court to “guide and direct” the team. The judges found that “the major problem in the matters before us has been the inaction of the state,” and this inertia and lack of urgency needed to be set right. Yet, it is not as though the judges took the matter away from the executive; what they did was to introduce the judicial element, which would monitor progress in the investigation and act as a spur. This could be just what is needed to add a dash of transparency to governmental proceedings.

This same decision goes on to protect the individual person. In a refreshing return to constitutionalism and restoring significance to privacy when placed in a balance with public interest, the judges have expended thought and effort (paragraphs 72-77) in explaining the “right to privacy.” To pluck a couple of statements which are representative of what the judges held: “Right to privacy is an integral part of right to life. This is a cherished constitutional value and it is important that human beings be allowed domains of freedom that are free of public scrutiny unless they act in an unlawful manner… We are not proposing that constitutions cannot be interpreted in a manner that allows the nation-state to tackle the problems it faces. The principle is that exceptions cannot be carved out willy-nilly and without forethought as to the damage they may cause.”

The difference between a transparent state and a private citizen has been clearly established. These are words to be weighed while looking for the limits on the power of the state, and as privacy jurisprudence is developed.

(The author is an independent law researcher working on the jurisprudence of law, poverty and rights.)

http://www.thehindu.com/opinion/op-ed/article2306023.ece

A bill to settle a terrible debt

Siddharth Varadarajan IN THE HINDU

For decades, the victims of communal and targeted violence have been denied protections of law that the rest of us take for granted. It’s time to end this injustice.

In a vibrant and mature democracy, there would be no need to have special laws to prosecute the powerful or protect the weak. If a crime takes place, the law would simply take its course. In a country like ours, however, life is not so simple. Terrible crimes can be committed involving the murder of hundreds and even thousands of people, or the loot of billions of rupees. But the law in India does not take its course. More often than not, it stands still.

If the Lokpal bill represents an effort to get the law to change its course on the crime of corruption, the new draft bill on the prevention of communal and targeted violence is a modest contribution towards ensuring that India’s citizens enjoy the protection of the state regardless of their religion, language or caste.

The draft law framed by the National Advisory Council and released earlier this month for comment and feedback is a huge improvement over the bill originally drawn up by the United Progressive Alliance government in 2005. The earlier version paid lip service to the need for a law to tackle communal violence but made matters worse by giving the authorities greater coercive powers instead of finding ways to eliminate the institutional bias against the minorities, Dalits and adivasis, which lies at the heart of all targeted violence in India.

The November 1984 massacre of Sikhs provides a good illustration of how the institutionalised “riot system” works. Let us start with the victim. She is unable to get the local police to protect the lives of her family members or property. She is unable to file a proper complaint in a police station. Senior police officers, bureaucrats and Ministers, who by now are getting reports from all across the city, State and country, do not act immediately to ensure the targeted minorities are protected. Incendiary language against the victims is freely used. Women who are raped or sexually assaulted get no sympathy or assistance. When the riot victims form makeshift relief camps, the authorities harass them and try to make them leave. The victims have to struggle for years before the authorities finally provide some compensation for the death, injury and destruction they have suffered. As for the perpetrators of the violence, they get away since the police and the government do not gather evidence, conduct no investigation and appoint biased prosecutors, thereby sabotaging the chances of conviction and punishment.

With some modifications here and there, this is the same sickening script which played out in Gujarat in 2002, when Muslims were the targeted group. On a smaller scale, all victims of organised, targeted violence — be they Tamils in Karnataka or Hindi speakers in Maharashtra or Dalits in Haryana and other parts of the country — know from experience and instinct that they cannot automatically count on the local police coming to their help should they be attacked.

If one were to abstract the single most important stylised fact from the Indian “riot system”, it is this: violence occurs and is not immediately controlled because policemen and local administrators refuse to do their duty. It is also evident that they do so because the victims belong to a minority group, precisely the kind of situation the Constituent Assembly had in mind when it wrote Article 15(1) of the Constitution: “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them”.

How are policemen and officials able to get away with violating the Constitution in this manner? Because they know that neither the law nor their superiors will act against them. What we need, thus, is not so much a new law defining new crimes (although that would be useful too) but a law to ensure that the police and bureaucrats and their political masters follow the existing law of the land. In other words, we need a law that punishes them for discriminating against citizens who happen to be minorities. This is what the draft Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011 does.

The CTV bill sets out to protect religious and linguistic minorities in any State in India, as well as the Scheduled Castes and the Scheduled Tribes, from targeted violence, including organised violence. Apart from including the usual Indian Penal Code offences, the NAC draft modernises the definition of sexual assault to cover crimes other than rape and elaborates on the crime of hate propaganda already covered by Section 153A of the IPC. Most importantly, it broadens the definition of dereliction of duty — which is already a crime — and, for the first time in India, adds offences by public servants or other superiors for breach of command responsibility. “Where it is shown that continuous widespread or systematic unlawful activity has occurred,” the draft says, “it can be reasonably presumed that the superior in command of the public servant whose duty it was to prevent the commission of communal and targeted violence, failed to exercise supervision … and shall be guilty of the offence of breach of command responsibility.” With 10 years imprisonment prescribed for this offence, superiors will hopefully be deterred from allowing a Delhi 1984 or Gujarat 2002 to happen on their watch.

Another important feature is the dilution of the standard requirement that officials can only be prosecuted with the prior sanction of the government. The CTV bill says no sanction will be required to prosecute officials charged with offences which broadly fall under the category of dereliction of duty. For other offences, sanction to prosecute must be given or denied within 30 days, failing which it is deemed to have been given. Although the bill says the reasons for denial of sanction must be recorded in writing, it should also explicitly say that this denial is open to judicial review.

Another lacuna the bill fills is on compensation for those affected by communal and targeted violence. Today, the relief that victims get is decided by the government on an ad hoc and sometimes discriminatory basis. Section 90 and 102 of the CTV bill rectify this by prescribing an equal entitlement to relief, reparation, restitution and compensation for all persons who suffer physical, mental, psychological or monetary harm as a result of the violence, regardless of whether they belong to a minority group or not. While a review of existing state practice suggests victims who belong to a religious or linguistic ‘majority’ group in a given state do not require special legal crutches to get the police or administration to register and act on their complaints, the CTV bill correctly recognises that they are entitled to the same enhanced and prompt relief as minority victims. The language of these Sections could, however, be strengthened to bring this aspect out more strongly.

The CTV bill also envisages the creation of a National Authority for Communal Harmony, Justice and Reparation. The authority’s role will be to serve as a catalyst for implementation of the new law. Its functions will include receiving and investigating complaints of violence and dereliction of duty, and monitoring the build up of an atmosphere likely to lead to violence. It cannot compel a State government to take action — in deference to the federal nature of law enforcement — but can approach the courts for directions to be given. There will also be State-level authorities, staffed, like the National Authority, by a process the ruling party cannot rig. The monitoring of relief and rehabilitation of victims will be a major part of their responsibilities.

On the negative side of the ledger, the NAC draft makes an unnecessary reference to the power of the Centre and to Article 355 of the Constitution. The aim, presumably, is to remind the Centre of its duties in the event of a State government failing to act against incidents of organised communal or targeted violence. But the Centre already has the statutory right to intervene in such situations; if it doesn’t, the reasons are political rather than legal. The draft also unnecessarily complicates the definition of communal and targeted violence by saying the acts concerned must not only be targeted against a person by virtue of his or her membership of any group but must also “destroy the secular fabric of the nation.” Like the reference to Art. 355, this additional requirement can safely be deleted without diluting what is otherwise a sound law.

The BJP and others who have attacked the bill by raising the bogey of “minority appeasement” have got it completely wrong again. This is a law which does away with the appeasement of corrupt, dishonest and rotten policemen and which ends the discrimination to which India’s religious and linguistic minorities are routinely subjected during incidents of targeted violence. The BJP never tires of talking about what happened to the Sikhs in 1984 when the Congress was in power. Now that a law has finally been framed to make that kind of mass violence more difficult, it must not muddy the water by asking why it covers “only” the minorities. In any case, the Bill’s definition covers Hindus as Hindus in States where they are in a minority (such as Jammu and Kashmir, Punjab and Nagaland), as linguistic minorities in virtually every State, and as SCs and STs. More importantly, persons from majority communities who suffer in the course of communal and targeted incidents will be entitled to the same relief as minority victims. If someone feels there is any ambiguity about this, the bill’s language can easily be strengthened to clarify this.

At the end of the day, however, we need to be clear about one thing: India needs a law to protect its most vulnerable citizens from mass violence, its minorities. This is a duty no civilised society can wash its hands of.

Draft ‘Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011

http://www.hindu.com/2011/06/21/stories/2011062156231000.htm

Engaging with Policy Makers

PRS LEGISLATIVE REVIEW

This Primer attempts to explain the process by which a citizen group can participate and become actively involved in the process of lawmaking.  A number of cases have been used to demonstrate how civil society groups have been able to engage in the process of law making.

Right to Information Act, 2005

The campaign for the right to information was started by a group of workers in a village in Rajasthan when they were not paid by the government for work done during a famine.  They formed a citizen group, Mazdoor Kisan Shakti Sangathan (MKSS).  This group was supported by several social activists and the press, and led to the formation of the National Campaign for People’s Right to Information (NCPRI) in 1996.

The NCPRI and Press Council of India formulated an initial draft of a right to information law in 1996.  The government introduced the Freedom of Information Bill in 2002. In August 2004, the NCPRI suggested a set of amendments to the Freedom of Information Act, 2002.  The National Advisory Council (NAC) endorsed many of these proposals, and the government introduced the Right to Information Bill in December 2004.  The law was enacted in 2005. 

The RTI Act is an example of how citizens groups can significantly affect government policy. This Primer explains the process by which a citizen group can participate and become actively involved in the process of lawmaking.  A number of cases have been used to demonstrate the various ways in which civil society groups have been able to engage with the legislative process. 

Who makes laws?

In India, the lawmaking bodies are Parliament at the central level and Legislative Assemblies and Councils at the state level.  Parliament consists of two Houses:  the Lok Sabha, or “House of the People,” and the Rajya Sabha, or “Council of States.”

How is a law made?

The process of enacting a new law can be broadly divided into four steps:

Step 1:   The need for a new law, or an amendment to an existing piece of legislation, is identified. This may be done either by the government or by citizen groups who can raise public awareness regarding the need for the law.

Sometimes individual Members of Parliament (MPs) can introduce Bills in Parliament, known as private member Bills, as ways to highlight the need for a law.  While such Bills are almost never passed into law, they can provide a framework or a context within which the government can introduce its own legislation on the same issue.

Step 2:   The concerned ministry drafts a text of the proposed law, which is called a ‘Bill’The Bill is circulated to other relevant ministries for inputs. Comments from the public on the proposed draft may also be invited. The draft is revised to incorporate such inputs and is then vetted by the Law Ministry.  It is then presented to the Cabinet for approval.

Step 3:   After the Cabinet approves the Bill, it is introduced in Parliament.  Under the Indian political system, Parliament is the central legislative (or law making) body.  Every Bill goes through three Readings in both Houses before it becomes an Act.

·         During the First Reading the Bill is introduced.  The introduction of a Bill may be opposed and the matter may be put to a vote in the House.  In August 2009, the Law Minister withdrew the motion to introduce the Judges (Disclosure of Assets and Liabilities) Bill as many MPs were opposed to the Bill, on grounds that it violated the Constitution.

After a Bill has been introduced, the Presiding Officer of the concerned House (Speaker in case of the Lok Sabha, Chairman in case of Rajya Sabha) may refer the Bill to the concerned Departmentally Related Standing Committee for examination.  The Standing Committee considers the broad objectives and the specific clauses of the Bill referred to it and may invite public comments on a Bill.

On rare occasions, Bills which come under the ambit of a number of different ministries, may be referred to a Joint Committee.

The Committee then submits its recommendations in the form of a report to Parliament.

In the Second Reading (Consideration), the Bill is scrutinized thoroughly.  Each clause of the Bill is discussed and may be accepted, amended or rejected.

During the Third Reading (Passing), the House votes on the redrafted Bill.

If the Bill is passed in one House, it is then sent to the other House, where it goes through the second and third readings.

During the second reading, the government, or any MP, may introduce amendments to the Bill, some of which may be based on recommendations of the Standing Committee.  However, the government is not bound to accept the Committee’s recommendations.

 Step 4:   After both Houses of Parliament pass a Bill, it is presented to the President for assent.  She has the right to seek information and clarification about the Bill, and may return it to Parliament for reconsideration.  (This may be done only once.  If both Houses pass the Bill again, the President has to assent.)

Step 5:   After the President gives assent, the Bill is notified as an Act.  Subsequently, the Bill is brought into force and rules and regulations to implement the Act are framed by the concerned ministry, and tabled in Parliament.  In some cases, if the provisions in the Bill permit, the ministry may bring the Act into force over a period of time rather than all at once.  For instance, various sections of the Food Safety and Standards Act, 2006 were brought into force in three different stages between August, 2006 and August, 2008.  A number of sections of the Act have not yet been brought into force as of date.

Is the above process always followed?

This process is almost always followed.  However some Bills may not be referred to a Standing Committee. Bills such as the SEZ Bill, 2005 and the National Investigation Agency Bill, 2008 were not sent to a Standing Committee.

How is public participation possible during the process of lawmaking?

Step 1:   The role which can be played by citizen groups before and while the Bill is being drafted.

The case of the Right to Information Act cited on Page 1 is an example of citizen groups coming forward to participate in legislative the process of lawmaking.  Beginning with a movement started by a group of citizens, the law eventually became operational in October 2005.

Step 2:   When the government asks for public feedback on a Bill

Even before a Bill has been drafted, the relevant ministry might choose to advertise and seek inputs from experts and citizens.  This, though, is a rare occurrencen some cases, the concerned ministry drafts a new legislation and seeks public feedback before sending it for Cabinet approval.

A New Police ActThe current Police Act dates back to 1861.  The government felt the need to update this Act.  The Ministry of Home Affairs had invited suggestions from individuals and citizen groups which may be incorporated into a new Bill.

Draft Protection of Women against Sexual Harassment at Workplace Bill, 2007

The Ministry of Women and Child Development had prepared a Bill intended to provide for the protection of women against sexual harassment in the workplace. The ministry had put up a draft of the Bill on its website and had invited comments.

Step 3:   Engaging with Standing Committees.

After a Bill has been introduced, it is usually referred to the concerned Standing Committee which invites various stakeholders and experts for their suggestions.

This provides another opportunity for civil society and the public to get involved in legislation. Fifteen witnesses deposed before the Standing Committee on Rural Development while it was preparing the report on the National Rural Employment Guarantee Bill.  All Standing Committee meetings are closed door sessions which are not open to the general public or the media.  Citizens groups can approach the relevant Committee to ask to be allowed to depose before it.

The Scheduled Tribes (Recognition of Forest Rights) Bill, 2005

The Bill sought to recognise the rights of forest dwellers to land occupied by them.  The Bill was referred to a joint committee of Parliament, since it involved issues relevant to a number of ministries such as tribal affairs and environment.  The committee received 109 written submissions from organisations and individuals. In addition, 44 witnesses deposed before it.

The Food Safety and Standards Bill, 2005

The Food Safety and Standards Bill, 2005 seeks to consolidate several laws governing the food sector and establish a single reference point for all matters relating to food safety and standards.  The Standing Committee heard the views of a number of stakeholders including citizen groups such as VOICE, New Delhi, and Gandhi Peace Foundation, Kottayam.

The Maintenance and Welfare of Parents and Senior Citizens Bill, 2007

The Maintenance and Welfare of Parents and Senior Citizens Bill, 2007 seeks to make it a legal obligation for children and heirs to provide maintenance to senior citizens.

The Standing Committee had received written submissions and oral testimony from several groups as it discussed the Bill between May and July, 2007.  Such groups included the All India Senior Citizens Confederation, the Senior Citizens Service Forum and Age Care India, etc.  The Standing Committee submitted its report in August 2007.  The Bill was finally passed and enacted into law in December, 2007.

The government is not bound to accept the recommendations made by the Standing Committee.  In the case of the Food Safety and Standards Act, 2006, the government did not accept any of the Committee’s recommendations.

Even after the Standing Committee has finalised its recommendations, there is scope to reach out to Members of Parliament and political parties.  There are a number of instances in which political parties – allies in the ruling coalition or the opposition parties – have been able to prevent a Bill from being passed in Parliament or by forcing the government to make amendments to the Bill before being passed.

The Pension Fund Regulatory and Development Authority Bill, 2005

The Pension Fund Regulatory and Development Authority (PFRDA) Bill was introduced in Lok Sabha in March 2005.  The Bill proposes a framework for the development and regulation of pension funds in India in order to promote old age income security.  The Standing Committee presented its report in July 2005.  The Committee was in agreement with most of the provisions of the Bill.  However, the Bill was criticized by a number of trade unions and the Left Parties.

Following the opposition to the Bill, the government deferred the discussion and vote on the Bill. Subsequently, the PFRDA Bill lapsed with the dissolution of the 14th Lok Sabha.

Step 4:   After the Bill is passed by both the Houses and goes to the President.

In some rare cases, the President may ask Parliament to reconsider a Bill.

The Parliament (Prevention of Disqualification) Bill, 2006

Article 102 of the Constitution prohibits MPs from holding any office of profit, except that of a Minister or any office specifically exempted.  The Parliament (Prevention of Disqualification) Act, 1959 lists offices which are exempted.

In 2006, several petitions were filed with the Election Commission that a number of MPs were holding offices of profit.  The government introduced a Bill in May 2006 exempting a number of posts (including those held by some sitting MPs) from the definition of office of profit.  The Bill was passed by both Houses and sent to the President for his assent.

The President returned the Bill, seeking clarification on a number of issues, and asked Parliament to reconsider it.  Parliament passed the Bill again without any changes, following which the President gave his assent.  However, a Joint Parliamentary Committee was set up to go into the issues relating to the holding of offices of profit by MPs.

Step 5:   After the President of India has assented to a Bill and it is notified as an Act.

After an Act is passed by Parliament, it can still be challenged in the courts on grounds that it violates the provisions of the Constitution of India.

The AIIMS (Amendment) Act, 2007

In 2007, Parliament passed the AIIMS (Amendment) Act, 2007, which provided for the retirement of the director of AIIMS at the age of 65.

The Act was challenged in the Supreme Court by the then director of AIIMS, P. Venugopal on grounds that the Act was discriminatory and was introduced specifically to superannuate him.

The Supreme Court upheld this petition and struck down the Act.  It also ordered the reinstatement of Dr. Venugopal as director of the institution.

Step 6:   When the rules and regulations to the Act are being drafted.

The government may ask the public for comments and suggestions before framing rules and regulations under the Act

The Food Safety and Standards Act, 2006The Food Safety and Standards Authority of India has been set up under the Food Safety and Standards Act, 2006 to regulate safety and hygiene standards for different foods.

The regulator recently called for public comments on guidelines drafted by it.  The guidelines were put up by the regulator on its website.

During the process of drafting and the Bill being considered in Parliament, a variety of stakeholders may be involved.  The final Act is usually a compromise between competing interests.  Despite this, there is every reason for concerned citizens and groups to make every effort possible to engage with the process and ensure that they are able to make their voices heard. 

http://www.prsindia.org/parliamenttrack/primers/engaging-with-policy-makers-183/

For a sensitive law

V. VENKATESAN  in New Delhi  – FRONTLINE

 The 117-year-old Land Acquisition Act cries out for reform, but there is resistance to introducing positive changes.

The Land Acquisition (Amendment) Bill, which seeks to amend the Land Acquisition Act, 1894, has had a long period of gestation. The Union Ministry of Rural Development initiated the process of amendment way back in October 1998. But it took around 10 years for the government to bring the Bill before Parliament.

The 1894 Act was long used for acquisition of land for public purposes and also for companies. However, it was widely felt that the Act required changes in order to strike a balance between the need for land for development and other public purposes and the need to protect the interests of persons whose lands are acquired.

The Land Acquisition (Amendment) Bill, 2007, was thus introduced in the Lok Sabha by the then Rural Development Minister, Raghuvansh Prasad Singh, on December 6, 2007 (Bill No.97 of 2007). It was then referred to the Standing Committee on Rural Development. The committee submitted its report to Parliament on October 21, 2008, and official amendments to the Bill were cleared by the Group of Ministers in December 2008. It was rechristened the Land Acquisition (Amendment) Bill, 2009, and passed by the last Lok Sabha on the penultimate day of its tenure, February 25, 2009 (Bill No.97-C of 2007). The government tabled the Bill in the Rajya Sabha on February 26, 2009, but could not ensure its passage before the House adjourned. The Bill lapsed after the constitution of the current Lok Sabha and the return of the United Progressive Alliance (UPA) to power in May 2009.

It is indeed surprising that the Bill, on which there are intense disagreements between the government and civil society, came close to enactment in 2009. It is equally paradoxical why the UPA-I government hastily secured the Bill’s passage in the Lok Sabha when it knew that it was near-impossible to do so in the Rajya Sabha, where it lacked a clear majority, and that the House was about to adjourn. Records of the Lok Sabha debates of February 25, 2009, reveal that the government sought the Bill’s passage in the absence of a substantial section of the Opposition and amidst protests from the remaining members in the House against some of its provisions.

The Lok Sabha debates of February 25, 2009, may only be of academic interest as the UPA-II government has promised to consider the criticisms against the Bill since then before introducing a revised Bill during the next session of Parliament. Nevertheless, the debates are worth revisiting, if only to understand the flaws in the Bill as originally conceived.

Raghuvansh Prasad Singh had claimed, while seeking members’ support to the Bill, that the Bill was pro-farmer and pro-poor. The government felt that the Bill’s salient features, specifically the abolition of the provision enabling the government to acquire land for companies, would make it acceptable to the MPs. According to the Bill, the government will acquire 30 per cent of the land for a private company only after the company has purchased directly 70 per cent of the land it requires. The Bill also promised to compensate farmers dispossessed of their land on the basis of the market price before their displacement. The Bill also promised to return the land to the owner if it was not used for the purpose for which the acquisition was made.

But these salient features paled into insignificance in the face of mounting criticism against the Bill. The Standing Committee had recommended that the 1894 Act should be repealed and new comprehensive legislation enacted in its place. The reason for this recommendation was that the 2007 Bill sought to make exhaustive amendments to the Principal Act, which might create confusion and legal complications. The committee rejected the government’s contention that the Parent Act with the proposed amendments must continue as a large number of very old cases involving the Act were still pending in various courts. However, this has not found favour with the government.

Public purpose

The Standing Committee felt that the Principal Act defined “public purpose” in a detailed manner and did not provide any discretion to the government. The committee, therefore, opposed Section 5(v)(f)(iii) of the Bill, which includes ‘any other purpose useful’ to the general public for declaring a project as public purpose. The committee feared that such discretion would enable the government to give benefit to a particular person or company. The revised Bill retains this controversial provision without addressing the committee’s concerns.

The committee found that the criteria of government acquiring land for a private company where 70 per cent of the land has been acquired by the company (that is, the body which requires land for setting up public welfare projects) were contradictory. It is because resettlement and rehabilitation (R&R) would be taken care of by the government for 30 per cent of the population (residing on land acquired by the government) and by the company for the 70 per cent.

As the social impact assessment study would be done only for families residing on land acquired by the government, the committee felt that benefits provided to these families would be governed by criteria that would not apply to families whose land had been acquired by the company. This would result in contradictions and frictions among families living in the same area. The committee, therefore, unanimously opposed the 70:30 criteria. The government ignored this concern, too, while revising the Bill in 2009.

The committee felt that the Principal Act, while defining ‘public purpose’, included housing without qualifying it. Such a definition, it said, was too liberal and included the acquisition of land for private companies for the purpose of building high-income group residential premises. Therefore, it recommended that the word ‘housing’ should be replaced by ‘housing for lower and middle-income groups’.

But the Bill, as revised by the government in 2009, includes housing “for such income groups as may be specified from time to time by the appropriate government” as part of its definition of public purpose. It is clear that such a definition defeats the very objective of the committee’s recommendation.

Market value

The determination of the market value of the land being acquired is another contentious issue. The committee had recommended that the highest price of sale deed, as indicated in the sale deeds of the last three years, plus 50 per cent of the highest price should be the criterion for assessing and determining the market value of the land being acquired. The committee felt that in tribal areas, since the land could not be purchased by non-tribal people, tribal people usually do not get adequate compensation when land is acquired and market price fixed.

Therefore, the committee recommended that in tribal areas the criterion for fixing market price should be the highest price of a sale deed of the adjoining non-tribal blocks/village for the last three years plus 50 per cent. The government ignored this recommendation, too, in the revised Bill.

The National Advisory Council (NAC), in its 13th meeting held in New Delhi on May 25, recommended that compensation for those who would lose land should be six times the registered sale deed value, including solatium. The assignees of government land should also be entitled to the same compensation, it suggested. Those who lost land should be offered the option of receiving all or part of their compensation in the form of annuities, it suggested.

The committee further found that sometimes the government acquired land for a public purpose and later used it for a purpose different from the originally intended one, resulting in the price of the land appreciating several times. Whereas the people residing in the surrounding areas benefited greatly by the project set up on the acquired land, the persons who lost their land to the project did not get any portion of the resultant hike owing to the acquisition.

The committee, therefore, felt that some share of the resultant hike owing to land acquisition should also go to the persons on whose land the specific project was set up. It thus recommended that the Bill have provisions to give some extra monetary benefits to the affected person/family in such cases. The revised Bill ignored this recommendation too.

During the Lok Sabha debate in February 2009, some members questioned the government’s claim that most of the recommendations of the Standing Committee had been accepted while preparing the revised Bill. Sandeep Dixit of the Congress reminded the government that there was a consensus that both the Land Acquisition (Amendment) Bill and the R&R Bill would be merged. The merger was considered necessary because drafting differences in the two Bills caused confusion with regard to similar provisions.

The NAC also recommended a single comprehensive law that discouraged forced displacement and minimised adverse impact on people, habitats, the environment, food security and biodiversity. It also recommended that the law should ensure that the process explored all possible options of acquiring more barren and less fertile and waste land before acquiring agricultural land.

It should also define comprehensively project-affected persons/families and provide for a just, timely compensation, resettlement and rehabilitation package through a humane, participatory, informed, consultative and transparent process, allowing for effective and fair implementation.

The NAC also made other significant proposals. Those who lost livelihoods (and not just land), too, should be compensated, it proposed. Another proposal was that agricultural workers, artisans, fisher-folk and forest gatherers, if they lost their livelihoods because of the acquisition of land, should be entitled to a grant amounting to 10 days’ minimum wages a month for 33 years.

Yet another proposal was that if land was acquired for a public purpose and not used within five years, private property that was acquired should be returned to its original owners. But the Bill provides for the reversion of the unutilised land only to the appropriate government (in the case of government-acquired land) and not to private owners. Here, the government apparently shared the Standing Committee’s view that “public purpose” was very vast and the appropriate government would be at liberty to use the acquired land for any purpose coming within the definition of public purpose.

But the government ignored another important but related recommendation of the Standing Committee. The committee had recommended a safeguard against acquisition of excess land at the notification stage so that the question of barring the government from transferring the acquired land for a purpose other than the public purpose did not arise.

The government’s sincerity in revising the 2009 Bill in the light of the recommendations of the Standing Committee, the NAC and civil society groups is now on test.

http://www.hinduonnet.com/fline/stories/20110617281201900.htm

Mending the Food Security Act

New National Advisory Council(NAC)of India: So...

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Jean Drèze IN THE HINDU

The National Advisory Council has proposed a framework for the National Food Security Act. But its potential could be wasted by a flawed approach to the PDS.

Two years have passed since the Central government announced that a draft National Food Security Act (NFSA) would be posted on the Food Ministry’s website “very soon.” After prolonged deliberations, a detailed framework for this Act has recently been proposed by the National Advisory Council (NAC), and a draft is on the anvil. This is a “compromise draft” of sorts, heavily influenced by the government’s own concerns and priorities.

The NAC framework includes important provisions relating, for instance, to child nutrition, reform of the public distribution system (PDS), and redress of grievances. It has the potential to put all food-related schemes on a new footing, in a rights framework. However, this potential is in danger of being wasted by a flawed approach to the PDS.

In this approach, the PDS rests on a three-way division of the population, among “priority,” “general” and “excluded” households. (This article focusses on rural areas.) Priority households, covering at least 46 per cent of the rural population at the all-India level, are to get 35 kg of grain a month at “Antyodaya prices” (Rs. 3 a kg for rice, Rs. 2 for wheat and Re. 1 for millets). General households will get 20 kg at no more than half of the Minimum Support Price. And excluded households, which account for 10 per cent of the rural population, will get nothing.

This framework is problematic. First, it hinges on a lasting division of the population into three groups, without any clarity as to how the groups are to be identified. In the absence of any obvious alternative, the NAC is effectively falling back on the Below Poverty Line census to identify priority groups. This is a major setback — the NAC’s entire work began with a virtually unanimous rejection of BPL-based targeting for the PDS. Exclusion errors in earlier BPL censuses were very large, and the next BPL census is unlikely to fare much better, judging from the pilot survey.

Second, since identification criteria are left to the Central government, with some discretion for State governments, nobody has guaranteed PDS entitlements under the Act, except for a few ultra-marginalised groups (such as the so-called Primitive Tribal Groups) which have a right of “automatic inclusion” in the priority list. Other households have no legal entitlement to be included in the priority list or, for that matter, in the general list. Therefore, they have no guaranteed PDS entitlements at all. This undermines the basic purpose of the Act.

Third, the transition from the current Above Poverty Line-Below Poverty Line framework to the NAC framework is likely to be disruptive. There are at least three major sources of disruption: the creation of an “excluded” category; the transition to a new BPL list; and the switch from household to per capita entitlements. Each of these changes entails a loss of entitlements for significant numbers of households. Meanwhile, the entitlements of other households will be enhanced. Can we expect this transition to happen without major tensions, or even to be completed at all?

Fourth, the NAC framework fails to “de-link” PDS entitlements from official poverty estimates, and to prevent a rapid shrinkage of PDS coverage over time. It is well understood by now that official poverty lines in India are abysmally low, and that undernutrition is not confined to households below the “poverty line.” In the NAC framework, 46 per cent coverage of priority groups in rural areas corresponds to the proportion of the population below the “Tendulkar poverty line,” plus a margin of 10 per cent for targeting errors. This is significantly higher than the current BPL coverage of about 33 per cent. But except for ruling out any reduction of PDS entitlements before the end of the 12th Five Year Plan (which is only a few years from now), nothing in the draft NFSA prevents the government from reducing PDS coverage in tandem with official poverty estimates over the years.

Fifth, the idea of a universal PDS in the poorest 200 districts was dropped from the NAC framework (after being agreed and placed on record). This was an important idea, because any targeting process here is likely to lead to massive delays, fraud, and exclusion errors. In many of these districts, the local administration has little credibility. Large numbers of poor households are outside the BPL list, and are likely to remain excluded from the proposed “priority” list. Further, targeting is pointless in areas where an overwhelming majority of the population is vulnerable to food insecurity. Launching a universal PDS in these districts would have addressed a large part of the food insecurity problem in rural India in one go, at a small extra cost.

Sixth, the NAC abandoned another important idea as it went along: the automatic inclusion of all Scheduled Caste and Scheduled Tribe (SC/ST) households in the priority list — unless they come within the standard exclusion criteria. This will be a major protection against exclusion errors, and a well-justified form of positive discrimination in favour of SC/ST families. But the idea was dropped, on the grounds that it is difficult to reconcile with pre-specified “caps” on the coverage of priority groups at the State level based on poverty estimates. Punjab, for instance, has a low poverty ratio but a high proportion of SC/STs in the population — there is no obvious way to handle this.

In short, the NAC framework not only perpetuates the flaws of BPL targeting but also institutionalises artificial social divisions under the law. It is not difficult to imagine the Act being used as a foothold to extend these divisions to other domains.

The obvious alternative, a universal PDS, is a ‘no-no’ for the Central government. Is there another way to repair, or at least contain, the damage? I believe there is. Before coming to that, let me mention an interesting finding of recent BPL identification studies (by Reetika Khera, Sabina Alkire, and Himanshu, and others). These analyses, mainly based on the 2004-05 data from the National Sample Survey or the 2005-06 data from the National Family Health Survey, suggest that about 25 to 30 per cent of households in rural India meet simple, transparent and verifiable “exclusion criteria,” such as having a government job, owning a motorised vehicle, or living in a multi-storied pucca house.

This suggests a simple but far-reaching modification of the NAC framework: expand the excluded category, but extend “priority” entitlements (35 kg of grain at Antyodaya prices) to all other households. With an exclusion ratio of, say, 30 per cent, the foodgrain requirements will be the same as in the current NAC framework. The financial cost will be a little higher (because all entitled households will pay Antyodaya prices), but the extra cost will be a small fraction of the total food subsidy.

In this “quasi-universal” framework, every rural household will be entitled, by law, to 35 kg of grain a month at Antyodaya prices, unless it comes within the well-defined “exclusion criteria.” Everyone will be clear about their legal entitlements. The burden of proof, so to speak, will fall on the government to exclude a household, and poor households will be well protected from exclusion errors. State governments will be free to move even closer to universalisation, if they wish, by waiving some exclusion criteria and contributing additional resources to the PDS (as many States are already doing). Automatic inclusion of SC/STs (unless they come within the exclusion criteria) will be built in. PDS entitlements will be de-linked from the APL-BPL rigmarole, and from poverty estimates. And while some social division will remain, it will be “at the top,” without undermining solidarity among disadvantaged groups.

Two further modifications of the NAC framework will round up this proposal quite nicely. First, the idea of a universal PDS in the poorest 200 districts could easily be reinstated, by waiving exclusion criteria in these districts for an initial period of, say, 20 years. Second, the Act could be gradually extended to the whole country, over a period of, say, three years, starting with the poorest 200 districts. This will make it easier to meet the additional foodgrain requirements in a phased manner.

This approach is not perfect, but it seems much preferable to the confused, impractical and divisive framework that has emerged from the NAC (or rather, from protracted discussions between the NAC and the government). It will be easy to adapt the current NFSA draft to this approach, while retaining the valuable work that has been done by the NAC on other aspects of the draft. This small modification could make a big difference.

(The author is a Visiting Professor at the University of Allahabad. The views expressed here are his own.)

The Judicial Standards and Accountability Bill, 2010

Supreme Court of India

 

PRS LEGISLATIVE REVIEW

The Judicial Standards and Accountability Bill tries to lay down enforceable standards of conduct for judges.  It also requires judges to declare details of their and their family members’ assets and liabilities.  Importantly, it creates mechanisms to allow any person to complain against judges on grounds of misbehaviour or incapacity.

Highlights of the Bill

  • The Judicial Standards and Accountability Bill, 2010 requires judges to declare their assets, lays down judicial standards, and establishes processes for removal of judges of the Supreme Court and High Courts.
  • Judges will be required to declare their assets and liabilities, and also that of their spouse and children.
  • The Bill establishes the National Judicial Oversight Committee, the Complaints Scrutiny Panel and an investigation committee.  Any person can make a complaint against a judge to the Oversight Committee on grounds of ‘misbehaviour’.
  • A motion for removal of a judge on grounds of misbehaviour can also be moved in Parliament.  Such a motion will be referred for further inquiry to the Oversight Committee.
  • Complaints and inquiries against judges will be confidential and frivolous complaints will be penalised.
  • The Oversight Committee may issue advisories or warnings to judges, and also recommend their removal to the President.

Key Issues and Analysis

  • The key issue is whether the balance between independence and accountability is maintained by the proposed mechanism in the Bill.  The Oversight Committee has non-judicial members which might impinge on the independence of the judiciary.
  • The Bill penalises anyone who breaches the confidentiality of complaints.  It is questionable whether a penalty is needed for a frivolous complaint that remains confidential.
  • The Scrutiny Panel has judges from the same High Court.  This is different from the in-house procedure of the Supreme Court.
  • The Oversight Committee has non-judicial members.  The procedure of the Committee is not an in-house procedure of the judiciary.  It is not clear whether the power of the Oversight Committee to impose minor measures is constitutionally valid.
  • The Bill does not mention whether a judge has the right to appeal to the Supreme Court against an order of removal issued by the President after Parliament finds him guilty of ‘misbehaviour’.

PART A: HIGHLIGHTS OF THE BILL1

Context

The Constitution provides that judges of the High Courts and Supreme Court can be removed only by Parliament on the basis of a motion in either the Lok Sabha or the Rajya Sabha.2 The existing procedure for investigation into allegations of misbehaviour or incapacity of Supreme Court and High Court judges is specified in the Judges (Inquiry) Act, 1968. Currently two cases are under investigation: Justice Soumitra Sen of the Calcutta High Court, and Justice Dinakaran of the Sikkim High Court (earlier in the Karnataka High Court). Before this the only case under this process was that of Justice Ramaswamy, but Parliament did not pass the motion to remove him.

In recent years, a number of allegations of corruption against members of the higher judiciary have been made.3 In 1997, the Supreme Court adopted resolutions on (a) Restatement of Values of Judicial Life, and (b) In-house procedure within the judiciary.4 A concept paper on a National Judicial Commission was prepared by the National Advisory Council in 2005.5 The Judges (Inquiry) Bill, 2005 was drafted by the government and examined by the Law Commission. The revised Judges (Inquiry) Bill, 2006 incorporated almost all the Law Commission’s recommendations, and sought to establish a National Judicial Council (NJC). That Bill has however lapsed now.

Key Features

The 2010 Bill replaces the Judges (Inquiry) Act, 1968. It seeks to: (a) create enforceable standards for the conduct of judges of High Courts and the Supreme Court, (b) change the existing mechanism for investigation into allegations of misbehaviour or incapacity of judges of High Courts and the Supreme Court, (c) change the process of removal of judges, (d) enable minor disciplinary measures to be taken against judges, and (e) require the declaration of assets of judges.

Judicial Standards

  • The Bill requires judges to follow certain standards of conduct. Complaints against judges can be made on grounds of non-compliance with these standards or certain activities such as corruption, wilful abuse of power or persistent failure to perform duties.
  • Some activities prohibited under the Bill are: (a) close association with individual members of the Bar who practise in the same court, (b) allowing family members who are members of the Bar to use the judge’s residence for professional work, (c) hearing or deciding matters in which a member of the judge’s family or relative or friend is concerned, (d) entering into public debate on political matters or matters which the judge is likely to decide, and (e) engaging in trade or business and speculation in securities.

Investigation Authorities

The Bill establishes three bodies to investigate complaints against judges: the National Judicial Oversight Committee, the Complaints Scrutiny Panel and allows for the constitution of an investigation committee.

  • National Judicial Oversight Committee: will consist of a retired Chief Justice of India as the Chairperson, a judge of the Supreme Court, a Chief Justice of the High Court, the Attorney General for India, and an eminent person appointed by the President. The Oversight Committee shall have supervisory powers regarding investigation into complaints against judges, and also the power to impose minor measures.
  • Scrutiny Panel: will be constituted in the Supreme Court and every High Court. It shall consist of a former Chief Justice and two sitting judges of that court. The Panel shall conduct an initial investigation into the merits of a complaint made against a judge. It shall also have the power to report frivolous or vexatious complaints. Persons making frivolous or vexatious complaints can be penalised by rigorous imprisonment of up to five years and fine of up to five lakh rupees.
  • Investigation Committee: will be set up by Oversight Committee to enquire into complaints. The investigation committee will be set up if the Scrutiny Panel recommends that an inquiry should be carried out to investigate a complaint. The Bill does not specify the qualifications of members of the investigation committee, but leaves this to the discretion of the Oversight Committee.

Complaint and Reference Procedures

The Bill changes the complaint procedure existing in the Judges (Inquiry) Act, 1968. Currently, the removal process may only be initiated by a motion in Parliament. The Bill adds a process to permit any person to file a complaint. Any frivolous or vexatious complaint, if proved, carries a punishment. The proposed changes are given in Table1. Also see Figure 1 on page 6.

 

Table 1: Complaint procedure and authorities under the Bill and the Judges (Inquiry) Act, 1968
Topic Judges (Inquiry) Act, 1968 Judicial Standards and Accountability Bill, 2010
Persons allowed to file complaints Members of Parliament (motion presented in either House of Parliament). Members of Parliament or any other person.
Person to whom complaint has to be made Speaker of the Lok Sabha or the Chairman of the Rajya Sabha. Speaker/ Chairman (by Members of Parliament) 

National Judicial Oversight Committee (by persons other than Members of Parliament).

Subsequent procedure
  • The Speaker/ Chairman may set up a three member committee for investigation.
  • The Committee will consist of (a) one judge from the Supreme Court and one from among the Chief Justices of High Courts, and (b) a distinguished jurist.
  • The Committee shall prepare a report after concluding its investigation. The report shall be laid before both the Lok Sabha and the Rajya Sabha.
  • If the report finds that the charges against the judge are not proved, no further action will be taken.
  • If the charges framed are proved, the motion against the judge will be taken up for consideration.
  • If the motion is adopted by both houses of Parliament by two-thirds majority, the misbehaviour or incapacity of the judge is deemed to be proved.
  • If the complaint is made by Parliament, the Speaker/ Chairman will refer the matter to the Oversight Committee who will constitute an investigation committee. In other cases, the Oversight Committee refers the matter to the Scrutiny Panel within three months.
  • The Scrutiny Panel shall report to the Oversight Committee on whether there are sufficient grounds for proceeding against the judge. Report to be submitted in three months, may be extended by three months.
  • If the Scrutiny Panel reports that there are sufficient grounds for proceeding against the judge, the Oversight Committee shall set up an investigation committee to look into the complaint (Scrutiny Panel will not be involved if the matter is referred through Parliament). Inquiry has to be completed within six months. The investigation committee shall report its findings to the Oversight Committee.
  • If the Oversight Committee is satisfied that the charges have been proved, the Committee can (a) issue advisories or warnings, or (b) request the judge to resign voluntarily.
  • If the judge does not resign voluntarily, the Committee shall advise the President to proceed with the removal of the judge, and the President shall refer the matter to Parliament.
  • The judge may be removed if each House adopts the motion with two-thirds majority.
Sources: Judicial Standards and Accountability Bill, 2010; Judges (Inquiry) Act, 1968; PRS.

Confidentiality and Exemption from RTI

  • The Bill prohibits participants in investigations against a Judge from revealing any information regarding the investigation or the complaint without the written consent or direction of the Oversight Committee. The Bill imposes penalties on those violating the confidentiality provisions. Anyone violating these provisions may be imprisoned for up to one month, and may also be fined.
  • The Bill exempts documents and records of proceedings related to a complaint from the purview of the Right to Information Act, 2005. The reports of the investigation committee and the order of the Oversight Committee shall be made public.
  • Proceedings of the investigation committee will not be open to the public.

Disclosure of Assets and Liabilities

  • Judges will be required to declare their assets and liabilities, and also that of their spouse and dependent children. Such declaration has to take place within 30 days of the judge taking his oath to enter his office. In addition, every judge will have to file an annual report of his assets and liabilities. The assets and liabilities of the judge will be displayed on the website of the court to which he belongs.

PART B: KEY ISSUES AND ANALYSIS

There are four main issues with regard to the Bill: (i) the composition of the bodies established to judge judges; (ii) whether provisions on confidentiality and penalties for frivolous and vexatious complaints deter persons from complaining against judges; (iii) whether minor measures can be imposed by a body comprising of non-judicial members, and (iv) whether judges should be able to appeal against orders removing them.

Judging the Judges

Composition of authority tasked to remove judges

The key issue is to find a balance between holding judges accountable and maintaining the independence of the judiciary. The Standing Committee on Personnel, Public Grievances, Law and Justice6, and the Law Commission7 have examined these issues in light of the Judges (Inquiry) Bill, 2005 and 2006. The composition of the bodies established to judge the judges needs to reflect this balance.

The Judges (Inquiry) Bill, 2006 proposed a National Judicial Commission only of judges. The Law Commission report agreed with the composition of the Commission. The Standing Committee proposed that the Commission should be broad-based to represent members from the executive, legislature, and the Bar. They argued that if there was a problem regarding non-judicial members, an alternative mechanism should be set up. The alternative would be to have a broad-based committee to conduct preliminary investigations. Such an Empowered Committee should consist of members from the judiciary, executive, legislature and the Bar.6

The Oversight Committee in the Bill differs from the recommendations of the Standing Committee. It now consists of three judicial members and two non-judicial members. The two non-judicial members are the Attorney General (appointed by the executive), and an eminent person to be appointed by the President (executive’s nominee). There is no member of the legislature in any of the authorities proposed in the Bill.

Table 2 compares the composition of suggested judicial oversight bodies in India.

 

Table 2: Composition of Suggested Judicial Oversight Bodies in India
Judges (Inquiry) Bill, 2006 and Law Commission Standing Committee 2010 Bill
Composition
  • Chief Justice of India;
  • Two senior-most judges of the Supreme Court;
  • Two Chief Justices of High Courts.
Recommended a broad-based committee consisting of members from the executive, legislature, and the bar; or, 

The establishment of a broad-based empowered committee to conduct initial screening of complaints.

  • The National Oversight Committee has members from the judiciary and the executive;
  • The Scrutiny Panel doing initial screenings is composed entirely of judges;
  • The composition of the investigation committee is not known.
Sources: Judges (Inquiry) Bill, 2006; Standing Committee on Personnel, Public Grievances, Law and Justice; PRS.

The basic features of some judicial oversight bodies in other countries are summarised in Table 3.

 

Table 3: Judicial Oversight Bodies in Some Countries
Investigation Body Qualifications Authority to remove judges
England & Wales Judicial Appointments Commission & Ombudsman Lay person with no legal experience Legislature
Canada Two oversight commission members and appointee of Justice Minister Judges Legislature
United States Judicial Council Judges Judiciary & Legislature
France Oversight commission Judges, prosecutors, & three who are neither judges nor of the legislature Oversight commission
Germany Federal Constitutional Court Judges Federal Constitutional Court
South Africa Oversight Commission Ministers, legislators, lawyers, law professors, and judges Executive, after a resolution by two-thirds of the legislature

Sources: 195th Law Commission Report; US Court of Appeals; PRS.

Composition of Scrutiny Panel

The Bill provides that judges from the same High Court shall first scrutinise whether a complaint against a judge needs to be investigated. It does not provide a review mechanism by the Oversight Committee if the Scrutiny Panel decides that there is no merit in the complaint.

In 1997, the Supreme Court adopted a different in-house procedure for inquiring into complaints of misbehaviour against judges. It stated that the inquiry committee would consist of two Chief Justices of High Courts other than the High Court to which the judge belongs, and one other High Court judge.7 This procedure ensured that judges of the same High Court would not sit in inquiry against a judge. Table 4 compares the current in-house procedure and the procedure proposed in the Bill:

 

Table 4: Composition of committees under the Supreme Court’s 1997 Resolution and the Bill.
Supreme Court’s in-house procedure Bill
Judge of the High Court Two Chief Justices of High Courts other than the High Court to which the judge belongs, and one other High Court judge. Scrutiny Panel. Headed by a former Chief Justice of that High Court and two other sitting judges of that court.
Judge of the Supreme Court judge Three judges of the Supreme Court. Same as above.
Role Investigate and recommend penalties such as withdrawal of work, public censure, warnings, etc. Report to Oversight Committee whether further investigation is necessary.
Sources: 195th Report of the Law Commission of India; Judicial Standards and Accountability Bill, 2010; PRS.

The report of the Standing Committee on the Judges (Inquiry) Bill, 2006, had proposed a screening body with wider representation. It suggested that the body have representatives of the judiciary, legislature and the Bar. The major reasons it had given for the proposing this ‘Empowered Committee’ were: (a) it would be an impartial, wider representative body, (b) it would provide for the screening of complaints at an initial level; and (c) wider representation would ensure credibility and transparency.

Penalties for frivolous complaints

The Bill requires all complaints to be kept confidential. Any breach of confidentiality carries a penalty. In addition, a vexatious or frivolous complaint, if made in public, may also be penalised under the Contempt of Courts Act, 1971. These two safeguards protect a judge from defamation. However, judges cannot be defamed if complaints are kept confidential. Therefore, the need for an additional safeguard against frivolous complaints may be questionable.

The quantum of penalty is significantly higher than for other similar offences. The Contempt of Courts Act, 1971 provides for simple imprisonment for up to six months and a fine of up to Rs 2,000.8 The Judges (Inquiry) Bill, 2006 (and the Law Commission report) had proposed a maximum penalty of simple imprisonment of up to one year, and fine of up to Rs 25,000. The Bill imposes a penalty of imprisonment of up to five years, and fine of up to five lakh rupees.

Constitutional validity of minor measures

The Bill allows for minor measures to be imposed by the Oversight Committee in some cases. These are: (a) issuing advisories, or (b) warnings. The Supreme Court9 and the Law Commission7 upheld the constitutionality of minor measures in the context of oversight bodies composed entirely of the judiciary. The Law Commission viewed the imposition of minor measures as an in-house process. This would not be an encroachment by the executive or the legislature since such power is vested in ‘peers’ within the judiciary.”10

The Oversight Committee proposed in the Bill consists of members from the executive as well as the judiciary. It is therefore not clear whether this can be viewed as an in-house process and whether it violates the constitutional safeguards of the independence of the judiciary.

Right of a judge to appeal to Supreme Court against removal

In a 1993 judgement, the Supreme Court has held that a judge can seek ‘judicial review’ against an order of the President removing him.11 The Bill makes no mention of whether a judge who has been removed has a right to appeal to the Supreme Court. Therefore, based on this judgement, a judge will to have the right to appeal to the Supreme Court to review the order of removal passed by Parliament2. The Standing Committee had stated that there should not be any provision for appeal as the finality of a Presidential order should not be challenged.

Figure 1: Procedure of investigation into a complaint against a High Court or Supreme Court judge.

Judicial Standard Bill

Judicial Standard Bill

 

*Under the reference procedure, the final report of the Oversight Committee is submitted to the Speaker/ Chairman irrespective of the findings of the investigation committee.

Anirudh Burman  / Vivake Prasad
March 18, 2011

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