Thirteen ways to cleanse the system


In an article published 50 years ago, the great Indian democrat, Chakravarthi Rajagopalachari, deplored “the unconscionable and grievous expenditure on elections, which gives overwhelming advantage to money-power.” Rajaji argued that “elections now are largely, so to say, private enterprise, whereas this is the one thing that should be first nationalized.” Towards this end, he recommended that the government issue voter cards, take votes not at fixed destinations but at mobile booths that went from home to home and hamlet to hamlet, and provide State funding to parties and contestants.

In the decades since Rajaji wrote, money-power has become even more pervasive and influential. A candidate for Parliament requires crores of rupees to fight an election. These costs are obtained through party funds, which rest not (as they should) on membership fees and small voluntary donations, but on commissions creamed off government contracts, and on bribes given by industrialists to whom the parties have granted favours. The funds provided to (or gathered by) contestants are then used to seek to bribe voters. The money spent in fighting elections is recovered many-fold in case the party or contestant wins.

In Rajaji’s time, a minority of politicians (perhaps 20 per cent or so) were corrupt. And virtually none were criminals. Now, certainly less than 20 per cent of politicians in power are completely honest; and somewhat more than 20 per cent have criminal records. That said, the electoral system itself is relatively transparent. Sterling work by successive election commissioners — such as T.N. Seshan, J.M. Lyngdoh, N. Gopalaswami and S.Y. Quraishi — have largely put an end to the practice, widespread in the 1970s and 1980s, of capturing booths, doctoring ballot papers and ensuring that those who were not likely to vote in your favour were kept away from the electoral process. Also on the positive side, voter turnout remains high, far higher, in fact, than in older and otherwise more mature democracies. Besides, the poor vote in larger numbers than the middle-class and the rich.

Indian elections, then, are by no means a farce; but they are surely in need of reform. They need to be made independent of money-power, and less captive to the interests of crooks and criminals. Recognizing this, the ministry of law and the Election Commission have been holding a series of meetings in different parts of India, soliciting views on how best to reform the electoral system. Asked to speak at the meeting in Bangalore, I took as my manifesto (the word is inescapable) a submission prepared by the Association for Democratic Reforms, a remarkable organization that has single-handedly made electoral malpractice and the criminalization of politics topics of national debate. (It was a public interest litigation filed by the founding members of the ADR that resulted in a Supreme Court judgment making mandatory the declaration of assets and criminal records of all those seeking to contest assembly and parliamentary elections.)

The note submitted by the ADR to the ministry of law and the Election Commission makes 27 recommendations in all. These are listed in detail on the ADR website. I will here highlight 13 recommendations, which I shall divide into two categories — those that are immediately practicable, and can be put in place at once; and those that are highly desirable, and can perhaps be tested first in the Lok Sabha elections of 2014 and then implemented in subsequent parliamentary and assembly elections.

The seven proposals made by the ADR that can be implemented with immediate effect are:

1. Barring criminals from politics: A person charged with serious offences like murder, rape, kidnapping, or extortion, against whom charges have been framed by the police or the courts and which are punishable by sentences exceeding two years’ imprisonment should be prohibited from contesting elections. To prevent vendetta by political opponents, the law can specify that such action will be taken only if the case and charges were filed six or perhaps even nine months before the date of the election which the person wishes to contest;

2. Sources of income: Along with the declaration of assets and liabilities (now mandatory), candidates for state and national elections should also make public their yearly income and its sources;

3. Appointments of election commissioners: At the national level, this should be done by a multi-party committee consisting of the prime minister, the leader of the Opposition in the Lok Sabha, the Speaker of the Lok Sabha, and the Chief Justice of the Supreme Court of India. Likewise, state election commissioners should be chosen by a committee comprising the chief minister, the leader of the Opposition, the assembly Speaker, and the chief justice of the relevant high court. Further, to obviate bias and harassment, the chief election commissioner of the state should be a person from outside the state cadre;

4. Provision for negative voting: The electronic voting machines, while listing the names and affiliations of candidates, should have, as a final option, ‘None of the above’;

5. Bar on post-retirement jobs: All election commissioners should be barred from accepting government posts of any kind for a period of five years after their retirement, and from joining a political party for a further five years;

6. Financial transparency: It should be made mandatory for political parties to declare accounts annually, indicating their sources of funding, patterns of expenditure, etc;

7. Curbs on publicity at public expense: Six months prior to the expiry of the House, the government should be forbidden from taking out advertisements in the media trumpeting their achievements (real or imagined);

Six further proposals made by the ADR, which can be made operational in the next few years are:

1. The winning margin of candidates should be at least one vote more than 50 per cent of those cast. If no candidate gets a majority of votes, then the two top candidates in a constituency can ‘run-off’ against one another;

2. Elections should be funded by the state. The mechanics of this process have to be carefully worked out, to establish how much money is allocated to state parties, how much to national parties, how much to independent candidates, etc. But surely a committee composed of a selection of India’s many world-class economists can work out a formula that is both efficient and equitable;

3. The internal reform of political parties such that they have (a) regular elections (based on secret ballots); (b) term limits for office bearers;

4. The classification of political parties as public authorities, so that their finances and other activities come under the provision of the Right to Information Act;

5. The prompt detection of those who bribe voters with gifts of alcohol, televisions, etc., and their punishment by having their candidacy set aside;

6. The provision of annual reports to constituents by MPs and MLAs.

In recent months, the issue of political corruption has dominated the headlines — from the Commonwealth Games through the 2G scandal and the mining and real estate scams on to the controversy over the lok pal bill. Public discussion has been high on indignation and low on constructive proposals for reform. The document prepared by the ADR is an excellent starting point to move the debate from rhetoric to substance, from talk to action. For, to cleanse the election system is to cleanse the political class, and, thereby, the process of governance itself.




Freedom of the press and journalistic ethics

Justice Markandey Katju  IN THE HINDU

Freedom is important, so is responsibility. In countries like India, the media have a responsibility to fight backward ideas such as casteism and communalism, and help the people fight poverty and other social evils.

Freedom of the press and journalistic ethics is an important topic today in India — with the word ‘press’ encompassing the electronic media also. There should be a serious discussion on the topic. That discussion should include issues of the responsibilities of the press, since the media have become very prominent and very powerful.

In India, freedom of the press has been treated as part of the freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution, vide Brij Bhushan and Another vs. The State of Delhi, AIR 1950 SC 129 and Sakal Papers (P) Ltd vs. Union of India, AIR 1962 SC 305, among others. However, as mentioned in Article 19(2), reasonable restrictions can be placed on this right, in the interest of the sovereignty and integrity of India, the security of the state, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. Hence, freedom of the media is not an absolute freedom.

The importance of the freedom of the press lies in the fact that for most citizens the prospect of personal familiarity with newsworthy events is unrealistic. In seeking out news, the media therefore act for the public at large. It is the means by which people receive free flow of information and ideas, which is essential to intelligent self-governance, that is, democracy.

For a proper functioning of democracy it is essential that citizens are kept informed about news from various parts of the country and even abroad, because only then can they form rational opinions. A citizen surely cannot be expected personally to gather news to enable him or her to form such opinions. Hence, the media play an important role in a democracy and serve as an agency of the people to gather news for them. It is for this reason that freedom of the press has been emphasised in all democratic countries, while it was not permitted in feudal or totalitarian regimes.

In India, the media have played a historical role in providing information to the people about social and economic evils. The media have informed the people about the tremendous poverty in the country, the suicide of farmers in various States, the so-called honour killings in many places by Khap panchayats, corruption, and so on. For this, the media in India deserve kudos.

However, the media have a great responsibility also to see that the news they present is accurate and serve the interest of the people. If the media convey false news that may harm the reputation of a person or a section of society, it may do great damage since reputation is a valuable asset for a person. Even if the media subsequently correct a statement, the damage done may be irreparable. Hence, the media should take care to carefully investigate any news item before reporting it.

I know of a case where the photograph of a High Court judge, who was known to be upright, was shown on a TV channel along with that of a known criminal. The allegation against the judge was that he had acquired some land at a low price misusing his office. But my own inquiries (as part of which I met and asked questions to that judge and many others) revealed that he had acquired the land not in any discretionary quota but in the open market at the market price.

Also, sometimes the media present twisted or distorted news that may contain an element of truth but also an element of untruth. This, too, should be avoided because a half-truth can be more dangerous than a total lie. The media should avoid giving any slant to news, and avoid sensationalism and yellow journalism. Only then will they gain the respect of the people and fulfil their true role in a democracy.

Recently, reports were published of paid news — which involves someone paying a newspaper and getting something favourable to him published. If this is correct, it is most improper. Editors should curb this practice.

Media comments on pending cases, especially on criminal cases where the life or liberty of a citizen is involved, are a delicate issue and should be carefully considered. After all, judges are human beings too, and sometimes it may be difficult for them not to be influenced by such news. The British law is that when a case is sub judice, no comment can be made on it, whereas U.S. law permits such comment. In India we may have to take an intermediate view on this issue: while on the one hand we have a written Constitution that guarantees freedom of speech in Article 19(1)(a) — which the unwritten British Constitution does not — the life and liberty of a citizen is a fundamental right guaranteed by Article 21 and should not lightly be jeopardised. Hence, a balanced view has to be taken on this.

Also, often the media publish correct news but place too much emphasis on frivolous news such as those concerning the activities of film stars, models, cricketers and so on, while giving very little prominence to much more important issues that are basically socio-economic in nature.

What do we see on television these days? Some channels show film stars, pop music, disco-dancing and fashion parades (often with scantily clad young women), astrology, or cricket. Is it not a cruel irony and an affront to our poor people that so much time and resources are spent on such things? What have the Indian masses, who are facing terrible economic problems, to do with such things?

Historically, the media have been organs of the people against feudal oppression. In Europe, the media played a major role in transforming a feudal society into a modern one. The print media played a role in preparing for, and during, the British, American and French Revolutions. The print media were used by writers such as Rousseau, Voltaire, Thomas Paine, Junius and John Wilkes in the people’s fight against feudalism and despotism. Everyone knows of the great stir created by Thomas Paine’s pamphlet ‘Common Sense’ during the American Revolution, or of the letters of Junius during the reign of the despotic George III.

The media became powerful tools in the hands of the people then because they could not express themselves through the established organs of power: those organs were in the hands of feudal and despotic rulers. Hence, the people had to create new organs that would serve them. It is for this reason that that the print media became known as the Fourth Estate. In Europe and America, they represented the voice of the future, in contrast to the feudal or despotic organs that wanted to preserve the status quo in society. In the 20th century, other types of media emerged: radio, television and the Internet.

What should be the media’s role? This is a matter of great importance to India as it faces massive problems of poverty, unemployment, corruption, price rise and so on.

To my mind, in underdeveloped countries like India the media have a great responsibility to fight backward ideas such as casteism and communalism, and help the people in their struggle against poverty and other social evils. Since a large section of the people is backward and ignorant, it is all the more necessary that modern ideas are brought to them and their backwardness removed so that they become part of enlightened India. The media have a great responsibility in this respect.

(Markandey Katju is a Judge of the Supreme Court of India. The second part of this article will follow.)


The Land Acquisition (Amendment) Bill, 2007


The Land Acquisition (Amendment) Bill, 2007 was passed by the Lok Sabha on 25th February 2009 (the last day of the session) but the bill lapsed with the dissolution of the 14th Lok Sabha.

The acquisition of land by governments for development and industrialisation has become a contentious political issue in recent years.  Many have criticized the Land Acquisition Act, 1894, as a draconian piece of legislation which has been used to forcibly acquire land without paying adequate compensation. Given the increasing chorus of protests over such issues as displacement and rights over land, the government is planning to introduce an amendment to the 1894 Act.

The Amendment attempts to expand the rights of those whose land is being acquired while restricting the types of projects for which governments can acquire land. It also provides for a separate authority to settle disputes over land acquisition. A companion piece of legislation (the Rehabilitation and Resettlement Bill, 2007) attempts to specify the benefits that displaced people will receive.

 Highlights of the Bill

  • The Land Acquisition (Amendment) Bill, 2007 amends The Land Acquisition Act, 1894.
  • For acquisition resulting in large-scale displacement, a social impact assessment study must be conducted. Tribals, forest dwellers, and those with tenancy rights are also eligible for compensation.
  • Acquisition costs will include payment for loss or damages to land, and costs related to resettlement of displaced residents.
    While determining compensation, the intended use of land and value of such land in the current market is to be considered.
  • The Bill establishes the Land Acquisition Compensation Disputes Settlement Authority at the state and central levels to adjudicate disputes resulting from land acquisition proceedings.

Key Issues and Analysis

  • The Bill bars the jurisdiction of civil courts on all matters related to land acquisition. It is unclear whether there is a mechanism by which a person may challenge the qualification of a project as ‘public purpose.’
  • The Settlement Authority is a judicial body but could be entirely staffed by members without judicial qualifications or experience.
  • When acquired land is resold, the original acquirer is to distribute 80% of the capital gains to the original owners or their heirs. This implies that every acquirer must track the original owners and their heirs in perpetuity. Also, the resale price of land may be difficult to compute when it is part of a larger deal in which a company is taken over.
  • Companies have to offer part of compensation as shares or debentures. Unlike shares, debentures do not provide the land owner with a share of the profits of the project.
  • The Bill makes special provisions for compensation if land is acquired under ‘urgency’. The term ‘urgency’ is not defined.

Checking on the House

Indian Parliament Building Delhi India

Image via Wikipedia


Middle-class cynicism is frequently directed against the functioning of Indian democracy, political parties and Parliament. An impression that all politicians are dishonest and that Parliament is only disrupted, however erroneous, has caught the public imagination. The truth is to the contrary.

The Indian Parliament has evolved over the last six decades. There would be no better system to suit Indian conditions than parliamentary democracy. A country with diverse opinions, regions, religions, communities and tribes can find no system better than the present one where all sections of society and shades of opinions become a part of the parliamentary decision-making process. The feeling of involvement and inclusion is the strength of the Indian Parliament.

One of the greatest challenges before Indian democracy is to curb the use of money power in elections. Sixty-four years after Independence we have still not been able to evolve a transparent mechanism for funding politics. This certainly lowers the credibility of our parliamentary democracy.

Parliament is a forum where governments are held accountable through questions, motions and debates. It is an empowered forum for legislation. It is the appropriate forum where issues of public concern and importance are raised. Conventions have a very important role in parliamentary functioning. Thus, knee-jerk reforms have to be avoided. What we must lean in favour of is the strengthening of established institutions and conventions. Changes must be well-thought-out, debated and then implemented on the strength of consensus. The establishment of department-related standing committees is one of the key reforms that Parliament has evolved in recent years. Standing committees deal with raw legislation drafted by the government. They hear various stakeholders, they examine each clause almost word by word. Contentious legislations are scrutinised by standing committees for months together. The strength of a standing committee is its predominant non-partisan functioning. There are no whips and no public gaze. Members belonging to the same party can express contrary viewpoints. The maturity of the Indian Parliament is evident from the fact that most reports of the department-related standing committees on legislation are unanimous. Occasionally, there are dissenting notes. It has been suggested that the committees should now be subjected to the public gaze and even telecasting be permitted. However populist the measure is, I would hate to jump to any hasty conclusion at this stage. The committee system has evolved over the last two decades. The standing committee system should be allowed to mature before we move to the next step.

The biggest weakness of the Indian Parliament is the lack of long duration. India’s population is growing; so are the problems. To meet for less than 70 days in a year is inadequate. Short durations lead to paucity of time available for debates, issues of public importance and legislation. When members, particularly from the opposition, want to raise several issues, the privilege is denied for paucity of time. The gagging of debate leads to obstructionism. Parliamentary obstructionism then becomes an acceptable mode to highlight an issue of public importance. More time is lost. Legislations are then cleared in haste in order to cover up the backlog. There have been suggestions in recent years to legislatively provide for a minimum 100 days’ session every year.

However, the duration may have to be enhanced a lot more. Similar reform is required in the states where the number of days of each assembly is being curtailed. Many governments find parliamentary accountability inconvenient and hence resort to shorter sessions. State assemblies are now meeting for 20 to 50 days a year. This flaw needs to be corrected.

A parliament is judged by the quality of its debates. Live telecast of Parliament, even as a substitute for adequate print media reportage, has incentivised members to prepare better and conduct themselves properly. In times to come, the quality of performance of an MP on the floor of the House will impact the prospects of returning in the next elections. His performance in the House has to be a relevant consideration in how his constituents judge him. In the last few decades the participation of prime ministers in parliamentary debates has declined. Their effective intervention is confined to reading written texts prepared by their offices. This is unacceptable. Even on the Prime Minister’s Question day it is the minister of state in the PMO who responds to most questions. The prime minister is the chief executive in a parliamentary democracy. He must be the most accountable executive. He cannot be accountable through a proxy system. It is, therefore, important that prime ministerial accountability in a democracy through parliamentary procedures is strengthened. In Britain, the system of Prime Minister’s Questions (PMQ) has successfully evolved over the years. Every Wednesday morning the PM faces impromptu questions in the House of Commons. Short questions with crisp and direct answers render the Wednesday morning thriller before television audiences. People judge the PM by the content and the quality of his responses. Opposition leaders and other members are judged by the quality of their intervention. The PM has to be the most accountable in a democracy. His depleting presence in Parliament compels one to suggest that the PMQ be successfully replicated in India. It will add to the quality of debate, a popular interest in Parliament, restoration of faith in India’s parliamentary democracy and certainly be the most effective mode of exercising one’s right to know.

The government and the opposition both have a key role to play in Parliament. Conflicting opinions and at times even tensions between the two bring out the best in Indian democracy. However, there must be healthy communication between the political leadership in government and the opposition. Of late, there is a decline in this consultation. The initiative for this consultation must come from the government. This consultation has to be real rather than formal. It is for the government of the day to consider whether the decline in this consultation is deliberate or attributable to the introvertish character of the UPA’s political leadership.

The anti-defection law emphasises the rigidity of the whip. A whip regulates the house. It enforces political discipline on members of a political party. The whip should be confined merely to voting. It should not regulate the content of the debate. The debates must be thought-provoking, buoyant and based on ingenuity. That will add to the strength of Indian democracy.

The writer, a BJP MP, is leader of the opposition in Rajya Sabha, express@expressindia.com


Amar Singh and Jaya Prada move Supreme Court for freedom of speech


Feeling gagged by the interpretation of the anti-defection law of 1996 that a member elected or nominated by a political party continues to be under its control even after his/her expulsion, sacked Samajwadi Party MPs Amar Singh and Jaya Prada have moved the Supreme Court. Amar and Jaya have said that expulsion for alleged anti-party activities has curtained their freedom of speech, a key right for any lawmaker. They are aggrieved by the interpretation of the tenth schedule offered by SC in a case in 1996 which impinges upon fundamental rights of expelled members, including rights under articles 14, 19 and 21.As per the interpretation, expelled members continue to belong to their erstwhile parties even when they are treated as “unattached”. For the purposes of the tenth schedule, they will not cease to be members of the political party that set them up as a candidate for an election. An SC bench headed by then justice AM Ahmadi had said that labelling a member “unattached” found no place in the tenth schedule.

Dealing with the expression “deem” in the law, the bench said the deeming fiction must be given full effect, otherwise the expelled member would escape the rigour of the law which was intended to curb defections.It means that an MP or an MLA even if expelled is “deemed” member of the party that had nominated him until he ceases to be a lawmaker.


Process as victor


With the Supreme Court dismissing a petition for deferment, the Lucknow bench of the Allahabad high court is all set to pronounce its verdict on the Ayodhya title suit. This past week, the air has been thick with yearnings that the issue could somehow be returned to the slow burner or that the high court verdict could somehow be postponed for a last, hasty shot at reconciliation. The tremulousness is understandable. When an issue has so long resisted resolution — and when that issue has shaken the republic so violently — the reluctance to face it four-square cannot be conveniently dismissed as escapism. However, mature democracies do not deal in wishful thinking, and the Supreme Court, intentionally or not, has been creative in reminding this country of its institutional strength to get on with things. It applied a short pause and then, on the basis of sober deliberation, refused to be inhibited by any political or executive pressure. The process followed by the apex court could turn out to be crucial, for it has reinforced the supremacy of the law in this land.

The law gives the petitioners in the Allahabad high court the option to appeal the verdict in the Supreme Court. One or more of them may do so after the verdict is read out in the afternoon of September 30. However, the challenge for our politics is to separate these individuals’ rights as petitioners from any mobilisation on the issue. For all the reminders of India having moved on, and of the Ram temple movement having lost its political salience, there is suspicion that the political parties are still waiting to see which way a political wind may blow after the verdict. The verdict is not on the demolition of the Babri Masjid on December 6, 1992. But the anxieties that prevail are framed by that event. This puts the onus, first of all, on the BJP of acknowledging that it is more than just another bystander. Its leaders have been strident in appealing for calm, but they have to take the logical next step. They need to deliver on the moderation of their tone and say that they will distance themselves from any rabble-rousing, even if it be by a far-flung affiliate of the Sangh Parivar. They need to make it clear that they will not mobilise by proxy.

Nobody today knows what the verdict will be, if even there will be, in whatever limited sense these words can be used, a winner. But no matter how the verdict goes, the challenge to our democracy is to own the judgment for what it is: an iteration of the triumph of the law and its processes.