the PRS Blog

The doctrine of separation of powers implies that each pillar of democracy – the executive, legislature and the judiciary – perform separate functions and act as separate entities.  The executive is vested with the power to make policy decisions and implement laws.  The legislature is empowered to issue enactments.  The judiciary is responsible for adjudicating disputes.  The doctrine is a part of the basic structure of the Indian Constitution[1] even though it is not specifically mentioned in its text.  Thus, no law may be passed and no amendment may be made to the Constitution deviating from the doctrine.  Different agencies impose checks and balances upon each other but may not transgress upon each other’s functions.  Thus, the judiciary exercises judicial review over executive and legislative action, and the legislature reviews the functioning of the executive.

There have been some cases where the courts have issued laws and policy related orders through their judgements.  These include the Vishakha case where guidelines on sexual harassment were issued by the Supreme Court, the order of the Court directing the Centre to distribute food grains (2010) and the appointment of the Special Investigation Team to replace the High Level Committee established by the Centre for investigating black money deposits in Swiss Banks.

In 1983 when Justice Bhagwati introduced public interest litigation in India, Justice Pathak in the same judgement warned against the “temptation of crossing into territory which properly pertains to the Legislature or to the Executive Government”[2].  Justice Katju in 2007 noted that, “Courts cannot create rights where none exist nor can they go on making orders which are incapable of enforcement or violative of other laws or settled legal principles. With a view to see that judicial activism does not become judicial adventurism the courts must act with caution and proper restraint. It needs to be remembered that courts cannot run the government. The judiciary should act only as an alarm bell; it should ensure that the executive has become alive to perform its duties.” [3]

While there has been some discussion on the issue of activism by the judiciary, it must be noted that there are also instances of the legislature using its law making powers to reverse the outcome of some  judgements.  (M.J. Antony has referred to a few in his article in the Business Standard here.)  We discuss below some recent instances of the legislature overturning judicial pronouncements by passing laws with retrospective effect.

On September 7, 2011 the Parliament passed the Customs Amendment and Validation Bill, 2011 which retrospectively validates all duties imposed and actions taken by certain customs officials who were not authorized under the Customs Act to do the stated acts.  Some of the duties imposed were in fact challenged before the Supreme Court in Commissioner of Customs vs. Sayed Ali in 2011[4].  The Supreme Court struck down the levy of duties since these were imposed by unauthorised officials.  By passing the Customs Bill, 2011 the Parliament circumvented the judgement and amended the Act to authorize certain officials to levy duties retrospectively, even those that had been held to be illegal by the SC.

Another instance of the legislature overriding the decision of the Supreme Court was seen in the Essential Commodities (Amendment) Ordinance, 2009 which was passed into an Act.  The Supreme Court had ruled that the price at which the Centre shall buy sugar from the mill shall include the statutory minimum price (SMP) and an additional amount of profits that the mills share with farmers.[5] The Amendment allowed the Centre to pay a fair and remunerative price (FRP) instead of the SMP.  It also did away with the requirement to pay the additional amount.  The amendment applied to all transactions for purchase of sugar by the Centre since 1974.  In effect, the amendment overruled the Court decision.

The executive tried to sidestep the Apex Court decision through the Enemy Property (Amendment and Validation) Ordinance, 2010.  The Court had issued a writ to the Custodian of Enemy Property to return possession of certain properties to the legal heir of the owner.   Subsequently the Executive issued an Ordinance under which all properties that were divested from the Custodian in favour of legal heirs by a Court order were reverted to him.  The Ordinance lapsed and a Bill was introduced in the Parliament.  The Bill is currently being examined by the Parliamentary Standing Committee on Home Affairs.

These examples highlight some instances where the legislature has acted to reverse judicial pronouncements.  The judiciary has also acted in several instances in the grey areas separating its role from that of the executive and the legislature.  The doctrine of separation of powers is not codified in the Indian constitution.  Indeed, it may be difficult to draw a strict line demarcating the separation.  However, it may be necessary for each pillar of the State to evolve a healthy convention that respects the domain of the others.

Last week, the Planning Commission filed an affidavit in the Supreme Court updating the official poverty line to Rs 965 per month in urban areas and Rs 781 in rural areas. This works out to Rs 32 and and Rs 26 per day, respectively. The perceived inadequacy of these figures has led to widespread discussion and criticism in the media. In light of the controversy, it may be worth looking at where the numbers come from in the first place.

Two Measures of the BPL Population

The official poverty line is determined by the Planning Commission, on the basis of data provided by the National Sample Survey Organisation (NSSO). NSSO data is based on a survey of consumer expenditure which takes place every five years.  The most recent Planning Commission poverty estimates are for the year 2004-05.

In addition to Planning Commission efforts to determine the poverty line, the Ministry of Rural Development has conducted a BPL Census in 1992, 1997, 2002, and 2011 to identify poor households. The BPL Census is used to target families for assistance through various schemes of the central government. The 2011 BPL Census is being conducted along with a caste census, and is dubbed the Socio-Economic & Caste Census (SECC) 2011. Details on the methodology of SECC 2011 are available in this short Ministry of Rural Development circular.

Planning Commission Methodology

Rural and urban poverty lines were first defined in 1973-74 in terms of Per Capita Total Expenditure (PCTE). Consumption is measured in terms of a collection of goods and services known as reference Poverty Line Baskets (PLB). These PLB were determined separately for urban and rural areas and based on a per-day calorie intake of 2400 (rural) and 2100 (urban), each containing items such as food, clothing, fuel, rent, conveyance and entertainment, among others. The official poverty line is the national average expenditure per person incurred to obtain the goods in the PLB. Since 1973-74, prices for goods in the PLB have been periodically adjusted over time and across states to deduce the official poverty line.

Uniform Reference Period (URP) vs Mixed Reference Period (MRP)

Until 1993-94, consumption information collected by the NSSO was based on the Uniform Reference Period (URP), which measured consumption across a 30-day recall period. That is, survey respondents were asked about their consumption  in the previous 30 days. From 1999-2000 onwards, the NSSO switched to a method known as the Mixed Reference Period (MRP). The MRP measures consumption of five low-frequency items (clothing, footwear, durables, education and institutional health expenditure) over the previous year, and all other items over the previous 30 days. That is to say, for the five items, survey respondents are asked about consumption in the previous one year. For the remaining items, they are asked about consumption in the previous 30 days.

Tendulkar Committee Report

In 2009, the Tendulkar Committee Report suggested several changes to the way poverty is measured.  First, it recommended a shift away from basing the PLB in caloric intake and towards target nutritional outcomes instead. Second, it recommended that a uniform PLB be used for both rural and urban areas. In addition, it recommended a change in the way prices are adjusted, and called for an explicit provision in the PLB to account for private expenditure in health and education. For these reasons, the Tendulkar estimate of poverty for the years 1993-94 and 2004-05 is higher than the official estimate, regardless of whether one looks at URP or MRP figures. For example, while the official 1993-94 All-India poverty figure is 36% (URP), applying the Tendulkar methodology yields a rate of 45.3%. Similarly, the official 2004-05 poverty rate is 21.8% (MRP) or 27.5% (URP), while applying the the Tendulkar methodology brings the number to 37.2%.

A Planning Commission table of poverty rates by state comparing the two methodologies by is available here.

The following piece by C V Madhukar appeared in the September,2011 issue of Governance Now magazine.

The debate in Parliament in response to the recent Anna Hazare led agitation demanding a strong Lok Pal Bill was a fine hour for the institution of Parliament.  What was even more important about the debate is that it was watched by thousands of people across the country many of whom have lost faith in the ability of our MPs to coherently articulate their point of view on substantive issues. Of course, in many cases some of these impressions about our MPs are largely formed by what the media channels tend to project, and without a full appreciation of what actually happens in Parliament.  There is now a greater awareness about an important institutional mechanism called the standing committee, and other nuances about the law making process.

The Lok Pal agitation brought out another important aspect of our democracy.  There are still many in India who believe that peaceful protest is a powerful way to communicate the expectations of people to the government. Our elected representatives are prepared to respond collectively when such protests are held.  There is a negotiated settlement possible between the agitating citizens and our political establishment within the broad construct of our Constitution.  All of this means that the safety valves in our democracy are still somewhat functional, despite its many shortcomings.

But the way the whole Lok Pal episode has played out so far raises a number of important questions about the functioning of our political parties and our Parliamentary system.  A fundamental question is the extent to which our elected MPs are able to ‘represent’ the concerns of the people in Parliament.  It has been obvious for some time now, that corruption at various levels has been a concern for many.  For months before the showdown in August, there have been public expressions of the disenchantment of the people about this problem.  Even though several MPs would say privately that it is time for them to do something about it as elected representatives, they were unable to come together in a way to show the people that they were serious about the issue, or that they could collectively do something significant about the problem.  The government was trying in its own way to grapple with the problem, and was unable to seize the initiative, expect for a last minute effort to find a graceful way out of the immediate problem on hand.

In our governance system as outlined in our Constitution, the primary and most important institution to hold the government accountable is the Parliament.  To perform this role, the Parliament has a number of institutional mechanisms that have evolved over the years.  The creation of the CAG as a Constitutional body that provides inputs to Parliament, the Public Accounts Committee in Parliament, the question hour in Parliament are some of the ways in which the government is held to account.  Clearly all of these mechanisms together are unable to adequately do the work of overseeing the government that our MPs have been tasked with.  But it is one thing for our MPs to be effective in their role holding the government to account, and a very different thing to come across collectively as being responsive to the concerns of the people.

For our MPs to play their representation role more convincingly and meaningfully there are certain issues that need to be addressed.  A major concern is about how our political parties are structured, where MPs are bound by tight party discipline. In a system where the party leadership decides who gets the party ticket to contest the next election, there is a natural incentive for MPs to toe the party line, even within their party forums.  This is often at the cost of their personal conviction about certain issues, and may sometimes be against what the citizens could want their representatives to do. Add to this the party whip system, under which each MP has to vote along the party line or face the risk of losing his seat in Parliament.  And then of course, if some MP decides to take a stand on some issue, he needs to do all the research work on his own because our elected representatives have no staff with this capability.  This deadly cocktail of negative incentives, just makes it very easy for the MP to mostly just follow the party line.  If the representation function were to be taken somewhat seriously, these issues need to be addressed.

The 2004 World Development Report of the World Bank was focussed on accountability.  An important idea in the report was that it was too costly and inefficient for people to vote a government in and wait till the next election to hold the government accountable by voting it out for the poor governance it provides.  That is the reason it is essential for governments and citizens to develop ways in which processes can be developed by which the government can be held accountable even during its tenure.

The myriad efforts by government such as social audits, monitoring and evaluation efforts within government departments, efforts by Parliament to hold the government accountable, efforts of civil society groups, are all ways of holding the government to account.  But over and above accountability, in an age of growing aspirations and increasing transparency, our MPs must find new ways of asserting their views and those people that they seek to represent in our Parliament.  This is an age which expects our politicians to be responsive, but in a responsible way.

Even as the Lok Pal Bill is being deliberated upon in the standing committee, civil society groups continue to watch how MPs will come out on this Bill.  There are plenty of other opportunities where MPs and Parliament can take the initiative, including electoral reforms, funding of elections, black money, etc.  It remains to be seen whether our MPs will lead on these issues from the front, or will choose to be led by others. This will determine whether in the perception of the public the collective stock of our MPs will rise or continue to deplete in the months ahead.

We wrote an FAQ on Parliamentary Privilege for IBN Live. See http://ibnlive.in.com/news/what-puri-bedi-are-guilty-of-parl-privilege-faqs/179977-37.html

The full text is reproduced below.

Several MPs have given breach of privilege notices against actor Om Puri and ex-policewoman Kiran Bedi for using “derogatory and defamatory” language against Members of Parliament. In light of this, we explain the concept of breach of privilege and contempt of Parliament.

What is parliamentary privilege?

Parliamentary privilege refers to rights and immunities enjoyed by Parliament as an institution and MPs in their individual capacity, without which they cannot discharge their functions as entrusted upon them by the Constitution.

Are these parliamentary privileges defined under law?

According to the Constitution, the powers, privileges and immunities of Parliament and MP’s are to be defined by Parliament. No law has so far been enacted in this respect. In the absence of any such law, it continues to be governed by British Parliamentary conventions.

What is breach of privilege?

A breach of privilege is a violation of any of the privileges of MPs/Parliament. Among other things, any action ‘casting reflections’ on MPs, parliament or its committees; could be considered breach of privilege. This may include publishing of news items, editorials or statements made in newspaper/magazine/TV interviews or in public speeches.

Have there been earlier cases of breach of privilege?

There have been several such cases. In 1967, two people were held to be in contempt of Rajya Sabha, for having thrown leaflets from the visitors’ gallery.

In 1983, one person was held in breach for shouting slogans and throwing chappals from the visitors’ gallery.

What is the punishment in case of breach of privilege or contempt of the House?

The house can ensure attendance of the offending person. The person can be given a warning and let go or be sent to prison as the case may be.

In the case of throwing leaflets and chappal, the offending individuals were sentenced to simple imprisonment.

In the 2007 case of breach of privilege against Ambassador Ronen Sen, the Lok Sabha Committee on privileges held that the phrase “headless chicken” was not used by Shri Sen in respect of MPs or politicians. No action was taken against him.

In 2008, an editor of an Urdu weekly referred to the deputy chairman of Rajya Sabha as a “coward” attributing motives to a decision taken by him. The privileges committee held the editor guilty of breach of privilege. The committee instead of recommending punishment stated that, “it would be better if the House saves its own dignity by not giving undue importance to such irresponsible articles published with the sole intention of gaining cheap publicity.”

We wrote an FAQ on the Lok Pal Bill for Rediff.  http://www.rediff.com/news/special/special-parliamentary-committee-cannot-study-lokpal-bill-in-10-days/20110822.htm

The Lok Pal Bill has been referred to the Standing Committee of Parliament on Personnel, Public Grievances, Law and Justice.  In this FAQ, we explain the process of these Committees.

What is the role of such standing committees?

The system of departmentally related standing committees was instituted by Parliament in 1993.  Currently, there are 24 such committees, organised on the lines of departments and ministries.  For example, there are committees on finance, on home affairs, on defence etc.  These standing committees examine Bills that are referred to them.  They also examine the expenditure plans of ministries in the Union Budget.  In addition, they may examine the working of the departments and various schemes of the government.

How is the membership of these committees decided?

Each committee has 31 members: 21 from Lok Sabha and 10 from Rajya Sabha.  Parties are allocated seats based on their strength in Parliament.  The final membership is decided based on the MP’s area of interest as well as their party’s decision on allocating the seats.

Who chairs the committees?

Of the 24 committees, 16 are administered by Lok Sabha and eight by Rajya Sabha.  The Chairperson is from the respective House.  Political parties are allocated the chairs based on their strength in Parliament.  Some committees such as home affairs, finance and external affairs are customarily chaired by a senior member of an opposition party.

What will the Standing Committee do with the Lok Pal Bill?

The Committee has invited comments and suggestions from the public on the Bill.  Comments can be sent to Mr. KP Singh, Director, Rajya Sabha Secretariat, 201, Second Floor, Parliament House Annexe, New Delhi -110001.  These may also be emailed to kpsingh@sansad.nic.in or rs-cpers@sansad.nic.in.  The Committee will examine the written memoranda.  They will also invite some experts and stakeholders for oral evidence.  Based on its examination, the committee will prepare a report with its recommendations on the various provisions of the Bill.  This report will be tabled in Parliament.

Is the report decided by voting?

No.  The committee tries to form a consensus while preparing the report.  However, if some members do not agree on any point, they may add a dissent note.  For example, the committee on the Civil Liability for Nuclear Damages Bill had dissent notes written by MPs from the left parties.  The Women’s Reservation Bill also had dissent notes from a couple of members.

Are the committee’s recommendations binding?

No.  The Committee system was formed recognising that Parliament does not have the time for detailed examination and public feedback on all bills.  Parliament, therefore, delegates this task to the committee which reports back with its recommendations.  It is the role of all MPs in each House of Parliament to examine the recommendations and move suitable amendments.  Following this, Parliament can vote on these amendments, and finalise the Bill.

Can you give examples when the Committee’s work has resulted in significant changes?

There are many such instances.  For example, the standing committee on science and technology examined the Civil Liability for Nuclear Damages Bill.  The committee made several recommendations, some of which increased the potential liability of suppliers of nuclear equipment in case of an accident.  All the recommendations were accepted.  Similarly, the Seeds Bill, which is currently pending in Rajya Sabha has seen several major recommendations by the Committee on Agriculture.  The government has agreed to move amendments that accept many of these recommendations.

Are all Bills referred to Standing Committees?

Most Bills are referred to such committees but this is not a mandatory requirement before passing a Bill.  In some cases, if a Bill is not referred to a committee and passed by one House, the other House may constitute a select committee for detailed examination.  Some recent examples include such select committees formed by the Rajya Sabha on the Prevention of Torture Bill, the Wakf Amendment Bill, and the Commercial Divisions of High Courts Bill.  There are also some instances when a Bill may be passed without the committee process.

Is it a good idea to bypass the committee process?

In general, this process provides a platform for various stakeholders to provide their inputs.  In the Lok Pal case, a few influential groups such as the India Against Corruption (IAC) and the National Campaign for People’s Right to Information (NCPRI) have voiced their views.  However, there may be other points of views of persons who do not have similar access to the media.  The Standing Committee provides equal opportunity to everyone to write in their memoranda.  It also allows parliamentarians to devote a significant amount of time to understand the nuances of a Bill and make suitable modifications.  Thus, the standing committee system is an opportunity to strengthen legislation in an informed and participatory manner.

Is it feasible to compress this process within 10 days and get the Lok Pal Bill passed within the current session of Parliament?

There should be sufficient time for citizens to provide inputs to the committee.  The committee has to examine the different points of view and find suitable provisions to achieve the final objectives.  For example, there are divergent views on the role of Lok Pal, its constitution, its jurisdiction etc.  The Committee has to understand the implications of the various proposals and then make its recommendations.  It has been given three months to do so.  Typically, most committees ask for an extension and take six to eight months.  It is not practical to expect this process to be over within 10 days.

Should civil society demand that the government issue a whip and pass the Jan Lok Pal Bill?

Everyone has the right to make any demand.  However, the government is duty bound to follow the Constitution.  Our Constitution has envisaged a Parliamentary system.  Each MP is expected to make up their minds on each proposal based on their perception of national interest and people’s will.  Indeed, one may say that the best way to ensure a representative system is to remove the anti-defection law, minimise the use of whips, and let MPs vote their conscience.  That may give us a more accountable government.

We wrote a piece for ibnlive.com on the major differences between the government’s Lok Pal Bill, 2011 and the Jan Lok Pal Bill drafted by Anna Hazare’s group.  The note is reproduced below.

The streets are witnessing a demand that the government’s Lok Pal Bill be replaced by the Jan Lok Pal Bill (JLP) as drafted by the team led by Anna Hazare.  There are several significant differences between the two bills.  In this note, we describe the some of these differences. (See here for more on the Lok Pal Bill).

First, there is a divergence on the jurisdiction of the Lok Pal.  Both bills include ministers, MPs for any action outside Parliament, and Group A officers (and equivalent) of the government.  The government bill includes the prime minister after he demits office whereas the JLP includes a sitting prime minister.  The JLP includes any act of an MP in respect of a speech or vote in Parliament (which is now protected by Article 105 of the Constitution).  The JLP includes judges; the government bill excludes them.  The JLP includes all government officials, while the government bill does not include junior (below Group A) officials.  The government bill also includes officers of NGOs who receive government funds or any funds from the public; JLP does not cover NGOs.

Second, the two Bills differ on the composition.  The government bill has a chairperson and upto 8 members; at least half the members must have a judicial background.  The JLP has a chairperson and 10 members, of which 4 have a judicial background.

Third, the process of selecting the Lok Pal members is different.  The JLP has a two stage process.  A search committee will shortlist potential candidates.  The search committee will have 10 members; five of these would have retired as Chief Justice of India, Chief Election Commissioner or Comptroller and Auditor General; they will select the other five from civil society.   The Lok Pal chairperson and members will be selected from this shortlist by a selection committee.  The selection committee consists of the prime minister, the leader of opposition in Lok Sabha, two supreme court judges, two high court chief justices, the chief election commissioner, the comptroller and auditor general, and all previous Lok Pal chairpersons.

The government bill has a simpler process.  The selection will be made by a committee consisting of the prime minister, the leaders of opposition in both Houses of Parliament, a supreme court judge, a high court chief justice, an eminent jurist, and an eminent person in public life.  The selection committee may, at its discretion, appoint a search committee to shortlist candidates.

Fourth, there are some differences in the qualifications of a member of the Lok Pal.  The JLP requires a judicial member to have held judicial office for 10 years or been a high court or supreme court advocate for 15 years.  The government bill requires the judicial member to be a supreme court judge or a high court chief justice.  For other members, the government bill requires at least 25 years experience in anti-corruption policy, public administration, vigilance or finance.  The JLP has a lower age limit of 45 years, and disqualifies anyone who has been in government service in the previous two years.

Fifth, the process for removal of Lok Pal members is different.  The government bill permits the president to make a reference to the Supreme Court for an inquiry, followed by removal if the member is found to be biased or corrupt.  The reference may be made by the president (a) on his own, (a) on a petition signed by 100 MPs, or (c) on a petition by a citizen if the President is then satisfied that it should be referred.  The President may also remove any member for insolvency, infirmity of mind or body, or engaging in paid employment.

The JLP has a different process. The process starts with a complaint by any person to the Supreme Court.  If the court finds misbehaviour, infirmity of mind or body, insolvency or paid employment, it may recommend his removal to the President.

Sixth, the offences covered by the Bills vary.  The government bill deals only with offences under the Prevention of Corruption Act.  The JLP, in addition, includes offences by public servants under the Indian Penal Code, victimization of whistleblowers and repeated violation of citizen’s charter.

Seventh, the government bill provides for an investigation wing under the Lok Pal.  The JLP states that the CBI will be under the Lok Pal while investigating corruption cases.

Eighth, the government bill provides for a prosecution wing of the Lok Pal.  In the JLP, the CBI’s prosecution wing will conduct this function.

Ninth, the process for prosecution is different.  In the government bill, the Lok Pal may initiate prosecution in a special court.  A copy of the report is to be sent to the competent authority.  No prior sanction is required.  In the JLP, prosecution of the prime minister, ministers, MPs and judges of supreme court and high courts may be initiated only with the permission of a 7-judge bench of the Lok Pal.

Tenth, the JLP deals with grievance redressal of citizens, in addition to the process for prosecuting corruption cases.  It requires every public authority to publish citizen’s charters listing its commitments to citizens.  The government bill does not deal with grievance redressal.

Given the widespread media coverage and public discussions, it is important that citizens understand the differences and nuances.  This may be a good opportunity to enact a law which includes the better provisions of each of these two bills.

Parliament is expected to take up a motion for impeaching Justice Soumitra Sen of the Calcutta High Court.  We wrote an FAQ on the process of impeachment and the facts of this case for Rediff. See: http://www.rediff.com/news/report/faq-on-impeachment-of-judges/20110816.htm

The full text is reproduced below.

What is the importance of Parliament’s discussion on the Justice Sen issue?

The Rajya Sabha is scheduled to discuss a motion for the removal of Justice Soumitra Sen of the Calcutta High Court.  Till date, no judge of the higher judiciary (Supreme Court and High Courts) has been successfully impeached.

What is the legal framework regarding impeachment of judges?

The Constitution has measures to ensure the independence of the judiciary from executive action.  This helps judges give judicial decisions in a free and fair manner without any inducements.

The Constitution also provides checks against misbehaviour by judges.  It states that a judge may be removed only through a motion in Parliament with a two thirds support in each House.  The process is laid down in the Judges (Inquiry) Act, 1968.

How is the motion initiated?  What is the process after that?

A motion has to be moved by either 100 Lok Sabha members of Parliament or 50 Rajya Sabha MPs.  If the motion is admitted, the Speaker of Lok Sabha or Chairman of Rajya Sabha constitutes an inquiry committee.

The committee has three members: a Supreme Court judge, a High Court Chief Justice, and an eminent jurist.  The Committee frames charges and asks the judge to give a written response.

The judge also has the right to examine witnesses.  After the inquiry, the committee determines whether the charges are valid or not.  It then submits its report.

What happens then?

If the inquiry committee finds that the judge is not guilty, then there is no further action.  If they find him guilty, then the House of Parliament which initiated the motion may consider continuing with the motion.

The motion is debated.  The judge (or his representative) has the right to represent his case.  After that, the motion is voted upon.  If there is two-thirds support of those voting, and majority support of the total strength of the House, it is considered to have passed.  The process is then repeated in the other House.

After that, the Houses send an address to the President asking that the judge be removed from office.

Has this process taken place earlier?

Yes, there has been one such case.  Justice Ramaswamy of the Supreme Court faced such a motion.  The inquiry committee found that the charges against him were valid.  However, the motion to impeach him did not gather the required support in Lok Sabha.

What are the charges against the Justice Sen?

There are two charges.  He is accused of misappropriating large sums of money which he received as a receiver appointed by the Calcutta High Court.  He is also accused of misrepresenting facts in this regard to the High Court.

What is the charge of misappropriation?  What did the inquiry committee conclude?

Justice Soumitra Sen was appointed Receiver in a case by an order of the Calcutta High Court on April 30, 1984. As a Receiver, Justice Sen had the power to collect outstanding debts and claims due in respect of certain goods.

The Receiver is required to file and submit for passing, his half yearly accounts in the Office of the Registrar of the High Court.  However, Justice Sen did not comply with this rule.  As a Receiver, Justice Sen was required to open only one account and not move funds without prior permission.

However, the Inquiry Committee found that two separate accounts were opened by Justice Soumitra Sen as Receiver, with ANZ Grindlays Bank and Allahabad Bank.  A total sum of over Rs 33 lakh was transferred in these accounts from the sale of the goods which was unaccounted for.

Justice Sen claimed he could not account for this amount since it was invested in a company called Lynx India Ltd. to earn interest. The Inquiry Committee found this claim to be false as well.

It was found that the amount transferred to Lynx India Ltd. had been made out of an account opened by Justice Sen in his own name.  The Committee concluded that (a) there was a large-scale diversion of fund, and (b) such diversion was in violation of the orders of the High Court.

The purpose for such diversion remains unexplained.

This action was done by him as an advocate? Are there any charges against him after he was appointed as a judge?

Justice Soumitra Sen was appointed a High Court Judge on December 3, 2003. The Inquiry Committee noted that Justice Sen’s actions were, “an attempt to cover up the large-scale defalcations of Receiver’s funds”.

After he became a Judge he did not seek any permission from the Court for approval of the dealings, as required by the Court, nor did he account for the funds.

Is there any other case?  What is the status?

Another such motion has been initiated against Chief Justice Dinakaran of Sikkim High Court.  An Inquiry Committee is looking investigating the issue.  However, Mr Dinakaran has reportedly sent in his resignation to the President.  If the resignation is accepted, then the motion to remove him will become ineffective.

We wrote an FAQ on the Lok Pal Bill for Rediff.  See http://www.rediff.com/news/slide-show/slide-show-1-all-you-wanted-to-know-about-the-lokpal-bill/20110808.htm

The full text is reproduced below.

What is the purpose of the Lok Pal Bill?

The Bill seeks to establish an institution that will inquire into allegations of corruption against certain public functionaries.  It establishes the office of the Lok Pal for this purpose.

What is the composition of the Lok Pal?

The Lok Pal shall consist of a Chairperson and up to eight members.  The Chairperson, and at least half of the members have to be current or former judges of the Supreme Court or Chief Justices of High Courts.  The other members will have at least 25 years experience in matters related to anti-corruption policy, vigilance, public administration, finance, law and management.

Who selects the Lok Pal?

The Selection Committee consists of the Prime Minister, Lok Sabha Speaker, the Leader of Opposition in each House of Parliament, a Union Cabinet Minister, a sitting Supreme Court Judge, a sitting High Court Chief Justice, an eminent jurist, a person of eminence in public life.  The two judges on this Committee will be nominated by the Chief Justice of India.

Who comes under the jurisdiction of the Lok Pal?

There are seven categories of persons under the Lok Pal: (a) Prime Minister after demitting office; (b) current and former Ministers; (c) current and former MPs (d) all Group A officers of the central government; (e) all Group A equivalent officers or PSUs and other government bodies; (f) directors and officers of NGOs which receive government financing; (g) directors and officers of NGOs which receive funds from the public, and have annual income above a level to be notified by the government. The speech and vote of MPs in Parliament are exempt from the purview of the Lok Pal.

What are the major powers of the Lok Pal?

The Lok Pal has two major wings: investigation wing and prosecution wing.  The Lok Pal can ask the investigation wing to conduct preliminary investigation of any offence alleged to be committed under the Prevention of Corruption Act, 1988.  It can then conduct an inquiry.  If the inquiry concludes that an offence was committed, the Lok Pal can recommend disciplinary action.  It can also file a case in the Special Court.

Does the Lok Pal need any prior sanction to initiate any action?

No.  The Bill states that the Lok Pal does not need prior sanction to inquire into an offence, or to initiate prosecution in the special court.

What are special courts under this Bill?

The central government is required to constitute special courts to hear and decide cases under this Bill.  The Lok Pal shall recommend the number of such courts.

What are the various time limits for conducting inquiry and trial?

All preliminary investigation or inquiry must be completed within 30 days of the complaints (and can be extended for a further three months, with written reasons).  The inquiry is to be completed within six months (extendable by six months).  The trial is to be completed within one year of filing the case.  This time may be extended by three months (and in further periods of three months each time) with written reasons, but the total time should not exceed two years.

How can the Lok Pal be removed from office?

The President may make a reference to the Supreme Court, (a) either on his own, or (b) if 100 MPs sign a petition, or (c) if a citizen makes a petition and the President is satisfied that it should be referred.  If the Supreme Court, after an inquiry, finds the charge of misbehaviour was valid against the Chairperson or a Member and recommends removal, he shall be removed by the President.

What are the provisions for the expenses of the Lok Pal?

The Bill provides that all expenses will be charged, i.e., the amount will be provided without requiring a vote in Parliament.  The Bill estimates recurring expenditure of Rs 100 crore per annum, and a non-recurring expenditure of Rs 50 crore.  It also estimates a further Rs 400 crore for a building.

What are the major differences from the Jan Lok Pal Bill drafted by Team-Anna?

There are several differences.  The composition of the Lok Pal and the selection process are different; the Jan Lok Pal draft included a search committee with civil society members to shortlist the eligible members of the Lok Pal.  The Lok Pal had jurisdiction over the PM, the judiciary and all public servants (only Group A officers in the government Bill); it included the speech and vote of MPs in Parliament; it did not include NGOs.  The Jan Lok Pal Bill provided that the investigation and prosecution wings of the CBI shall report to the Lok Pal for corruption cases.  It also had penalties ranging from six months to life imprisonment (under the government Bill, the maximum imprisonment is derived from the Prevention of Corruption Act, 1988, and is 7 years).

In the aftermath of the nuclear leaks in Japan, there have been concerns regarding the safety of nuclear power plants around the world.

There are some proposals to change the regulatory framework in India to ensure the safety of these plants. We examine some of the issues in the current structure.

Which body looks at safety issues regarding nuclear power plants in the country?

The apex institution tasked to look at issues regarding nuclear safety is the Atomic Energy Regulatory Board.

The AERB was set up in 1983 to carry out regulatory and safety functions regarding nuclear and radiation facilities. The agency has to give clearances for establishing nuclear power plants and facilities.

It issues clearances for nuclear power projects in stages after safety reviews. The safety of setting up a nuclear plant in any given area is also assessed by the AERB. For example, it would have looked into the safety of setting up a nuclear power project in Jaitapur in Maharashtra.

AERB also reviews the safety mechanisms within existing nuclear plants and facilities. To do this, it requires nuclear facilities to report their compliance with safety regulations, and also makes periodic inspections.

Under the recently passed Civil Liability for Nuclear Damage Act, 2010 the AERB is also the authority responsible for notifying when a nuclear incident takes place. Mechanisms for assessing and claiming compensation by victims will be initiated only after the nuclear incident is notified.

Why is the Atomic Energy Regulatory Board in the news?

Prime Minister Manmohan Singh announced on March 29, 2011, “We will strengthen the Atomic Energy Regulatory Board and make it a truly autonomous and independent regulatory authority.”

This announcement came in the backdrop of the continuing crisis and high radiation levels at the Fukusima nuclear plant in Japan.

News reports opined that the lack of proper autonomy of Japan’s nuclear regulator curbed its effectiveness. Japan’s ministry of economy, trade and industry regulates the nuclear power industry, and also promotes nuclear technology. These two aims work at cross-purposes.

India’s regulatory structure is similar to Japan in some respects.

What measures has the AERB taken post the Fukushima nuclear incident in Japan?

Following the nuclear incident in Japan, a high-level committee under the chairmanship of a former AERB chairman has been set up to review the safety of Indian nuclear power plants.

The committee shall assess the capability of Indian nuclear power plants to withstand earthquakes, tsunamis, cyclones, floods, etc. The committee will review the adequacy of provisions for ensuring safety in case of such events.

Is there any issue in the current regulatory structure?

The AERB is a regulatory body, which derives administrative and financial support from the Department of Atomic Energy. It reports to the secreatry, DAE.

The DAE is also involved in the promotion of nuclear energy, and is also responsible for the functioning of the Nuclear Power Corporation of India Limited, which operates most nuclear power plants in the country.

The DAE is thus responsible both for nuclear safety (through the AERB), as well as the operation of nuclear power plants (through NPCIL). This could be seen as a conflict of interest.

How does the system of independent regulators differ from this?

The telecom sector provides an example of an independent regulator.

The Telecom Regulatory Authority of India does not report to the Department of Telecommunications. The DoT is responsible for policy matters related to telecommunications, promoting private investment in telecom, and also has a stake in BSNL. Had TRAI reported to the DoT, there would have been a conflict of interest within the DoT.

What will the proposed legislation change?

Recent news reports have stated that a bill to create an independent regulatory body will be introduced in Parliament soon.

Though there is no draft bill available publicly, news reports state that an independent Nuclear Regulatory Authority of India will be created by the bill, and the authority will subsume the AERB within it.

This post first appeared as an article on rediff.com and can be accessed here.

The Department of Land Resources in the Ministry of Rural Development has released a draft version of The Land Titling Bill, 2011 on its website. This draft is a major revision of the original draft Bill released in 2010. Public comments on this draft are invited before June 24, 2011. A copy of the draft can be found here.

The Bill provides for the registration of all immovable property to establish a system of conclusive, electronically recorded titles. It also provides for a mechanism to invite objections and for the resolution of disputes through special tribunals. The property record will be considered as conclusive ownership by the person mentioned. This will help resolve uncertainties in property transactions.

Given that land is a state subject, the Bill is meant to be a model law for adoption by the states individually.  The framework of the bill is explained below.

I. Land Titling Authority and Preparation of Records

The Bill establishes a Land Titling Authority at the State level. The Authority’s task is to prepare a record of all immovable properties in its jurisdiction.

These records will contain (a) survey data of boundaries of each property; (b) a unique identification number for each property, which may be linked to a UID number; (c) any record created by an officer of the state or UT government authorised by the laws of that state to make such records; and (d) a record of Title over each property.

II. Title Registration Officer and Registration Process

The Bill provides for the government to create Title Registration Offices at various places, and for a Title Registration Officer (TRO) to function under the supervision of the Land Titling Authority.  The TRO will have powers of a civil court and is charged with the task of creating e a Register of Titles.

Steps for the registering of titles include: (a) notification of available land records data by the TRO, (b) invitation to persons with interest in such properties to make objections to the data, and (c) registration of properties by the TRO for which no dispute is brought to his notice in writing. In the case the absoluteness of the title to a property is disputed, the TRO will make an entry into the Register of Titles to that effect and refer the case to the District Land Titling Tribunal (discussed below)

III. District Land Titling Tribunal and State Land Titling Appellate Tribunal

The Bill proposes to set up a District Land Titling Tribunal, consisting of one or more serving officers not below the rank of Joint Collector / Sub Divisional Magistrate of the District. The government may also establish one or more State Land Titling Appellate Tribunals, to be presided over by serving Judicial Officers in the rank of District Judge. Revisions to the orders of the State Land Titling Appellate Tribunal may be made by a Special Bench of the High Court.

The Bill bars civil courts from having jurisdiction to entertain proceedings in respect to matters that the TRO, District Land Titling Tribunal, and State Land Titling Appellate Tribunal are empowered to determine.

IV. Completion of Records and Notification

When preparation of the Record for whole or part of a specific are is complete, it will be notified. Any person aggrieved by the notified entry in the Register of Titles may file an objection before the District Land Titling Tribunal within three years of the notification. Additionally, the person may file an application with the TRO for an entry to be made in the Register of Titles. The TRO shall do so when the application has been admitted to the Tribunal.

Minor errors in the Title of Registers can be rectified through an application to the TRO.

V. Register of Titles

After completion of records is notified by the Authority, the Register of Titles is prepared and maintained by the Authority. For each property, the Register will include: (a) general description, map, and locational details of the immovable property; (b) descriptive data such as a unique identification number, plot number, total area, built up and vacant area, address, site area, and undivided share in the land; (c) detail of survey entry, provisional title record, conclusive title record and status, mortgage, charges, other rights and interests in the property; (d) details of transfer of the property and past transactions; and (e) disputes pertaining to the property.

Entries in the Register of Titles will serve as conclusive evidence of ownership. These entries shall be maintained in electronic form, indemnified, and kept in the public domain.

The Union government’s Cabinet Committee on Security recently gave clearance to the Home Ministry’s NATGRID project.  The project aims to allow investigation and law enforcement agencies to access real-time information from data stored with agencies such as the Income Tax Department, banks, insurance companies, Indian Railways, credit card transactions, and more.  NATGRID, like a number of other government initiatives (UIDAI), is being established through governmental notifications rather than legislation passed in Parliament.  The examination of this issue requires an assessment of the benefits of legislation vis-a-vis government notifications.

Government notifications can be issued either under a specific law, or independent of a parent law, provided that the department issuing such notification has the power to do so.  Rules, regulations which are notified have the advantage of flexibility since they can be changed without seeking Parliamentary approval.

This advantage of initiating projects or establishing institutions through government notifications is also potentially of detriment to the system of checks and balances that a democracy rests on.  For, while legislation takes a longer time to be enacted (it is discussed, modified and debated in Parliament before being put to vote), this also enables elected representatives to oversee various dimensions of such projects.  In the case of NATGRID, the process would provide Parliamentarians the opportunity to debate the conditions under which private individual information can be accessed, what information may be accessed, and for what purpose.  This time consuming process is in fact of valuable import to projects such as NATGRID which have a potential impact on fundamental rights.

Finally, because changing a law is itself a rigorous process, the conditions imposed on the access to personal information attain a degree of finality and cannot be ignored or deviated from.  Government rules and regulations on the other hand, can be changed by the concerned department as and when it deems necessary.  Though even governmental action can be challenged if it infringes fundamental rights, well-defined limits within laws passed by Parliament can help provide a comprehensive set of rules which would prevent their infringement in the first place.

The Parliamentary deliberative process in framing a law is thus even more important than the law itself.  This is especially so in cases of government initiatives affecting justiciable rights.  This deliberative process, or the potential scrutiny of government drafted legislation on the floor of Parliament ensures that limitations on government discretion are clearly laid down, and remedies to unauthorised acts are set in stone.  This also ensures that the authority seeking to implement the project is

The other issue pertains to the legal validity of the project itself.  Presently, certain departmental agencies maintain databases of personal information which helps them provide essential services, or maintain law and order.  The authority to maintain such databases flows from the laws which define their functions and obligations.  So the power of maintaining legal databases is implicit because of the nature of functions these agencies perform.  However, there is no implicit or explicit authorization to the convergence of these independent databases.

One may argue that the government is not legally prevented from interlinking databases.  However, the absence of a legal challenge to the creation of NATGRID does not take away from the importance of establishing such a body through constitutionally established deliberative processes.  Therefore, the question to be asked is not whether NATGRID is legally or constitutionally valid, but whether it is important for Parliament to oversee the establishment of NATGRID.

In October 2010, the Ministry of Personnel circulated an “Approach paper for a legislation on privacy”.  The paper states: “Data protection can only be ensured under a formal legal system that prescribes the rights of the individuals and the remedies available against the organization that breaches these rights. It is imperative, if the aim is to create a regime where data is protected in this country, that a clear legislation is drafted that spells out the nature of the rights available to individuals and the consequences that an organization will suffer if it breaches these rights.”

As the lines above exemplify, it is important for a robust democracy to codify rights and remedies when such rights may be potentially affected.  The European Union and the USA, along with a host of other countries have comprehensive privacy laws, which also lay down conditions for access to databases, and the limitations of such use.  The UIDAI was established as an executive authority, and still functions without statutory mandate.  However, a Bill seeking to establish the body statutorily has been introduced, and its contents are being debated in the Parliamentary Standing Committee on Finance and the Bill has also been deliberated on by civil society at large.

A similar approach is imperative in the case of NATGRID to uphold the sovereign electorate’s right to oversee institutions that may affect it in the future.

The government is considering a number of measures to tackle corruption such as the formation of the office of the Lokpal or Ombudsman to investigate corruption cases, the Judicial Standards and Accountability Bill, 2010 that requires judges to declare their assets, lays down enforceable standards of conduct for judges, and establishes a process for removal of the Supreme Court and High Court judges (see PRS Analysis) and the Public Interest Disclosure and Protection of Persons Making the Disclosure Bill, 2010.

In 2004, following the death of whistleblower Satyendra Dubey, the government issued a notification laying down certain guidelines for whistleblowing and protecting whistleblowers.  It introduced the Public Interest Disclosure and Protection of Persons Making the Disclosure Bill, 2010 in August 2010 to give statutory backing to the 2004 government resolution.  Commonly known as the Whistleblower’s Bill, it seeks to protect whistleblowers i.e. persons making a public interest disclosure related to an act of corruption, misuse of power or criminal offence by a public servant.  It designates the Central and State Vigilance Commissions to receive disclosures from whistleblowers and lays down safeguards for protection of whistleblowers (see PRS Analysis).

The Bill was referred to the Departmentally related Standing Committee on Personnel, Public Grievances, Law and Justice.  The Committee presented its report on June 9, 2011.

Key recommendations of the Standing Committee

• § The Bill seeks to establish a mechanism to register complaints on any allegation of corruption or wilful misuse of power by a public servant.  The Committee broadly agreed with the provisions of the Bill but hoped that the government would consider the recommendations and adopt them wherever found appropriate.
• § The Bill covers any complaint under the Prevention of Corruption Act, 1988; wilful misuse of power, and a criminal offence by a public servant.  The Committee suggested that the scope of the Bill may be widened to include offences such as maladministration and human rights violations.  Specifically, the Bill should cover accrual of wrongful gain to a third party.  Also, the definition of “public servant” in the Indian Penal Code and the Prevention of Corruption Act, 1988 could be adopted for this Bill.
• § The Committee proposed that the defence forces and intelligence organisations should be included within the ambit of the Bill.  There could be reasonable exceptions based on operational needs of the forces.  Alternately, a separate authority could be set up for these exempted agencies.  It added that the Bill should cover members of the Council of Ministers, the judiciary (including higher judiciary) and regulatory authorities.
• § The Bill states that a public interest disclosure can be made only to the Central or State Vigilance Commissions (VCs).  The Committee is of the opinion that this may restrict access especially to population in remote areas.  It recommended that the Rules should provide for a smooth and convenient system.  The Committee added that if there are multiple points at which complaints can be made, the identity of the complainant should be strictly protected.
• § The Bill does not allow anonymous complaints.  The Committee however suggested that if the anonymous complaints have supporting documents that substantiates the claims, the VCs can investigate it.  It also advised that an alternative mechanism could be set up within or outside the Bill for inquiring into anonymous complaints.
• § The Committee recommended that there should be a foolproof mechanism to ensure that the identity of the complainant is not compromised with at any cost.  This is especially important because without such a mechanism it would deter prospective complainants due to fear of harassment and victimisation.
• § The Bill allows the VCs to reveal the identity of the complainant to the head of the organisation if it is necessary to do so.  The Committee recommended that the identity of the complainant should not be revealed to the head of the organisation without the written consent of the complainant.
• § The Committee felt that undue burden should not be placed on the complainant to provide proof to substantiate his case.  As long as he is able to make out a prima facie case, the VCs should follow up on the case.
• § The Committee is of the view that the VCs should inform the complainant about the outcome of the complaint.  Also, the VCs should give reasons if it decides to dismiss a complaint and the complainant should be given a reasonable hearing if he is not satisfied with the dismissal.
• § The Committee proposed that there should be a time limit for conducting discreet inquiry by the VCs, for inquiry by the head of the organisation and for taking action on the recommendations of the VCs.  The authority would have to give reasons in writing if it wants the time limit to be extended.  There should also be some mechanism to ensure that the directions of the VC are not avoided to protect the wrongdoer.
• § The Bill states that the VCs shall not entertain any complaints made five years after the action.  However, the Committee is not convinced that this restriction should be prescribed.  If at all there has to be a time limit, exceptions should be made in case of complaints which prima facie reveal offences of a grave nature.
• § The Committee recommended that the term “victimisation” should be defined and the whistleblower should be provided with sufficient protection to protect him from violence.  Also, witnesses and other persons who support the whistleblower should be accorded the same protection.
• § The Committee strongly recommended that there should be a mechanism to ensure that the orders of the VCs are complied with. Stringent action should be taken against any person who does not comply with the order.
• § The Committee felt that the penalty for frivolous or malafide complaints was too high and should be substantially reduced.  Also, while deciding whether a disclosure is frivolous, the intention of the complainant should be examined rather than the outcome of the inquiry.  The complainant should also have the right to appeal to the High Court.

On June 3, 2011, the National Advisory Council (NAC) posted the draft of the National Food Security Bill on its website and has asked for public feed back on the Bill by June 12, 2011.

Key Features of the Draft National Food Security Bill, 2011

-          Every person shall have the right of access to sufficient and safe food either directly or by purchasing the food.

-          The central and state government shall share the financial cost of procuring, storing and distributing food grains to the population entitled to it.

-          There are special provisions for pregnant and lactating mothers, children in the 0-6 age group, destitute persons, homeless persons and disaster affected persons.  The appropriate government shall take immediate steps to provide relief to persons living in starvation.

-          The state government shall provide all children upto class 8 freshly cooked meal in all schools run by local bodies and the government.  It shall also provide mid-day meals to children who are admitted under the 25% quota for children belonging to disadvantaged groups in unaided private schools

-          Each household shall be categorised into priority and general in rural and urban areas.

-          Each individual in the priority group households shall be entitled to at least 7kg of grain every month at a maximum price of Rs 3/kg for rice, Rs 2/kg for wheat and Rs 1/kg for millets.

-          Each individual in the general group households shall be entitled to 4kg of grain per month at 50 per cent of the Minimum Support Price for paddy, wheat and millet.

-          The state government can exclude certain persons who fulfil the exclusion criteria in rural and urban areas.  However, it has to cover at least 90% of the population in rural areas and 50% of the population in urban areas.

-          The Bill lays down norms for procurement, storage and distribution of food grains under the Public Distribution System.  It also gives detailed norms for Fair Price Shops, ration cards, and monitoring the system.

-          It seeks to set up a National Food Commission and State Food Commission in each state.  The Commission shall inquire into complaints on denial of entitlement, advise central and state governments and monitor the schemes.  Each district shall have a District Grievance Redressal Officer.

-          The Bill includes penalties for dereliction of duty by public servants, which includes deduction of penalty from the salary of the public servant.

-          Any person deprived of his entitlement to food shall be entitled to compensation from the appropriate government.

-          The Gram Sabhas should conduct social audits of all schemes under this Act.

The Back Story to the Bill

The Right to Food Campaign

In April 2001, the People’s Union for Civil Liberties (PUCL) Rajasthan had filed a writ petition in the Supreme Court against the Government of India, Food Corporation of India, and six state governments. The petition contended that the right to food was a fundamental right under “the right to life” provided by Article 21 of the Constitution of India.

Although no final judgment has been given, the Supreme Court has issued several interim orders in the case.  Among the most significant of theses is the conversion of eight centrally sponsored schemes into legal entitlements, including the Public Distribution System (PDS), Antyodaya Anna Yojana (AAY), National Programme of Nutritional Support to Primary Education, also known as “Mid-Day Meals scheme”, and Integrated Child Development Services (ICDS), among others.

Some orders by the Court in the area of food security include:

• BPL families are entitled to 35kg of foodgrains at a subsidised price.
• State governments are to implement the Mid-Day Meals scheme by providing every child in government schools and government assisted primary schools with a prepared mid-day-meal with a minimum content of 300 calories and 8-12 grams of protein each day of school for a minimum of 200 days.
• Six priority groups have been identified who are entitled to the Antyodaya card.  The card entitles the people to 35 kg of grain per month, at Rs 2/kg for wheat and Rs 3/kg for rice.

On May 8, 2002, the Supreme Court appointed two Commissioners for the purpose of monitoring the implementation of the interim orders.  The Commissioners have submitted a number of reports highlighting the issues of concern on the implementation of the interim orders and making detailed recommendations.

Government Initiatives

One of the key commitments made by both UPA I and UPA II was on food security whereby it proposed to enact a legislation that would entitle every BPL family in both rural and urban areas to 25 kg of rice or wheat per month at Rs 3 per kg.  However, the Sonia Gandhi-led NAC has differences with the central government on the contours of the legislation.  The basic issues on which there are divergent views include (a) coverage under the Bill; (b) method to be adopted to ensure food security; (c) the amount of food grain required; and (d) the impact on the food subsidy burden.

On October 23, 2010, the NAC made certain recommendations on the National Food Security Bill.  The Bill seeks to address nutritional deficiencies in the population.

Some of its key recommendations are:

• § Legal entitlements to subsidised food grains should be extended to at least 75% of the population – 90% in rural areas and 50% in urban areas.
• § The priority households (46% in rural areas and 28% in urban areas) should have a monthly entitlement of 35kgs at Rs 1 per kg for millets, Rs 2 for wheat and Rs 3 for rice.  Rural coverage can be adjusted state-wise based on the Planning Commission’s 2004-05 poverty estimates.
• § The general households (44% in rural areas and 22% in urban areas) should have a monthly entitlement of 20kgs at a price that does not exceed 50% of the current Minimum Support Price (the price at which the government buys food grains from the producer) for millets, wheat and rice.
• § Government should specify criteria for categorisation of population into priority and general households.  Full coverage of food entitlements should be extended to all by March 31, 2014.
• § Need for enabling provisions to revitalise agriculture, diversifying the commodities available under the Public Distribution System (PDS), ensuring universal access to safe water and proper sanitation, universalising primary health care, and extending nutritional and health support to adolescent girls.

In response, the Prime Minister set up an Expert Committee under Dr C. Rangarajan to examine the Bill and make recommendations.  The Rangarajan Committee submitted its report in January 2011.  It stated that it would not be possible to implement the NAC recommendations because of lack of availability of food grains and huge subsidy implications.  It was in favour of restricting entitlements of Rs 2/kg for wheat and Rs 3/kg for rice to households falling below the Tendulkar Committee poverty line plus 10 per cent of the BPL population.  This is equivalent to 48 per cent of the rural and 28 per cent of the urban population, which is about the same as the NAC categorisation for priority households.

The NAC however criticised the Rangarajan Committee’s stand and proceeded with the task of drafting an appropriate legislation.  It finally posted the draft of the National Food Security Bill on its website and has asked for public feedback.

Divergent Perspectives

The draft has been critiqued by various experts.  A group of distinguished economists wrote an open letter to Mrs Sonia Gandhi opposing the NAC’s draft on the grounds that it legalises the PDS even though there is a large body of evidence of the inefficiency of the system (see Wadhwa Committee reports and Planning Commission report).  The economists contended that in addition to reforming the PDS, other alternate models of subsidy delivery should be examined such as direct cash transfers or food stamps.  The system of direct cash transfer through food coupons was also outlined in the Economic Survey of 2009-10.  It stated that the system would be less prone to corruption since it would cut down government’s involvement in procuring, storing and distributing food grains.

However, there are divergent views on direct cash transfer too.  Some experts such as the economist and member of NAC, Prof Jean Dreze contend that food entitlement is better because it is inflation proof and it gets consumed more wisely than cash which can be easily misspent.  Others are of the view that cash transfer has the potential for providing economic and food security to the poor.

The ball is now in the government’s court.  According to news reports, the government may finalise the Bill soon and introduce it in the forthcoming monsoon session of Parliament.

The National Advisory Committee has recently come out with a Communal Violence Bill.  The Bill is intended to prevent acts of violence, or incitement to violence directed at people by virtue of their membership to any “group”.  An existing Bill titled the “Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005” pending in the Rajya Sabha (analysis here).  The main features of the NAC Bill are explained below:

The Bill makes illegal acts which result in injury to persons or property, if such acts are directed against persons on the basis of their affiliation to any group, and if such an act destroys the secular fabric of the nation.  Such acts include sexual assault, hate propaganda, torture and organized communal violence.

It makes public servants punishable for failing to discharge their stated duties in an unbiased manner.  In addition, public servants have duties such as the duty to provide protection to victims of communal violence and also have to take steps to prevent the outbreak of communal violence.

The Bill establishes a National Authority for Communal Harmony, Justice, and Reparation to prevent acts of communal violence, incitement to communal violence, containing the spread of communal violence, and monitoring investigations into acts of communal violence.  The Authority can also inquire into and investigate acts of communal violence by itself.  The Bill also provides for the setting up of State Authorities for Communal Harmony, Justice, and Reparation.

The central or state government has been given the authority to intercept any messages or transmissions if it feels that it might lead to communal violence.  This power is subject to existing procedures which have to be complied with for intercepting messages and transmissions.

Importantly, if public officers are liable to be prosecuted for offences under the Bill, and prior sanction is required for such prosecution, the state government has to grant or refuse sanction within 30 days.  If not, then sanction will be deemed to have been granted.

The Bill also allows the states to set up one or more Human Rights Defender of Justice and Reparations’ in every district.  The Human Rights defender will ensure that those affected by communal and targeted violence are able to access their rights under existing laws.

Apart from these, the Bill also establishes state and district-level authorities for assessing compensation for victims of communal violence.  States also have numerous obligations towards victims, such as the establishment of relief camps, ensuring proper facilities, medical provisions and clothing for those within such camps, etc.  The states government also has the obligation to create conditions which allow the return of victims of communal violence to the place of their ordinary residence.

The government’s acquisition of land for projects has been facing protests across the country, the violence in Uttar Pradesh being only the latest.

What is Land Acquisition?

Land acquisition is the process by which the government forcibly acquires private property for public purpose without the consent of the land-owner. It is thus different from a land purchase, in which the sale is made by a willing seller.

How is this process governed?

Land Acquisition is governed by the Land Acquisition Act, 1894.  The government has to follow a process of declaring the land to be acquired, notify the interested persons, and acquire the land after paying due compensation. Various state legislatures have also passed Acts that detail various aspects of the acquisition process.

Land is a state subject.  Why is Parliament passing a law?

Though land is a state subject, “acquisition and requisitioning of property” is in the concurrent list. Both Parliament and state legislatures can make laws on this subject.

Is there a new Act being proposed?

The government had introduced a Bill to amend this Act in 2007. That Bill lapsed in 2009 at the time of the general elections. The government has stated its intent to re-introduce a similar Bill, but has not yet done so.

What are the major changes being proposed?

There are significant changes proposed in the 2007 Bill with regard to (a) the purpose for which land may be acquired; (b) the amount of compensation to be paid; (c) the process of acquisition; (d) use of the land acquired; and (e) dispute settlement mechanisms. We explain these briefly below.

Purpose: Currently, land may be acquired for a range of uses such as village sites, town or rural planning, residential purposes for poor or displaced persons, planned development (education, housing, health, slum clearance), and for state corporations.

Land may also be acquired for use by private companies for the above purposes or if the work “is likely to prove useful to the public”.

The 2007 Bill had a narrower list: (a) for strategic naval, military or air force purposes; (b) for public infrastructure projects; and (c) for any purpose useful to the general public if 70% of the land has been purchased from willing sellers through the free market.

Compensation: The current Act requires market value to be paid for the land and any other property on it (buildings, trees, irrigation work etc) as well as expenses for compelling the person change place of residence or business. It explicitly prohibits taking into account the intended use of land while computing market value. The 2007 Bill requires payment of the highest of three items: the minimum value specified for stamp duty, the average of the top 50 per cent by price of land sale in the vicinity, and the average of the top 50 pc of the land purchased for the project from willing sellers. For computing recent land sale, the intended land use is to be used. Thus, agricultural land being acquired for an industrial project will be paid the price of industrial land.

Process of acquisition: Several changes are proposed, including the requirement of a social impact assessment. Any project that displaces more than 400 families (200 in hilly, tribal and desert areas) will require an SIA before the acquisition is approved.

Use of land acquired: The 2007 Bill requires the land acquired to be used for that purpose within five years. If this condition is not met, the land reverts to the government (it is not returned to the original land owners). If any acquired land is transferred to another entity, 80 pc of the capital gains has to be shared with the original land-owners and their legal heirs.

Dispute Settlement: Currently, all disputes are resolved by civil courts, which results in delays. The 2007 Bill sets up Land Acquisition Compensation Dispute Resolution Authority at the state and national levels. These authorities will have the power of civil courts, and will adjudicate disputes related to compensation claims.

Does the proposed Bill address the major issues?

The Bill narrows the uses for which land may be acquired. It also changes the compensation due and links that to the market price for which land is to be used.

There could be significant changes in acquisition for use by private industry. Firstly, they would have to purchase at least 70 pc of the required land from willing sellers (presumably, at fair market price). Second, the compensation amount for the remaining (upto 30 pc of land) could be significantly higher than the current method. This would be at a premium to the average paid to the willing sellers, and it would be based on intended industrial or commercial use which usually commands a higher price than agricultural land.

However, the effect on acquisition for projects such as highways and railways will not be significant, as there is no benchmark for price determination for such use.

This article appeared in Rediff News on May 12, 2011 and can be accessed here.

By Rohit and Jhalak

Some Rajya Sabha seats will be contested over the next year.  The Presidential elections are also scheduled to be held in 2012.  The recent assembly elections has implications for both these elections.  The Presidential elections will depend on the strenght in the assemblies, in Lok Sabha and in Rajya Sabha (which could change over the next year). 

Implications for Rajya Sabha Elections

The composition of Rajya Sabha may undergo some changes.  A total of 12 Rajya Sabha seats are up for election in 2011.  This includes 6 seats from West Bengal, 3 from Gujarat and 1 each from Maharashtra, Tamil Nadu and Goa.  Another 65 seats, across 18 states, go for elections in early 2012.  The largest chunk of these seats comes from UP(10), followed by Andhra Pradesh(6), Bihar(6) and Maharashtra(6).

Since Rajya Sabha members are elected by the elected members of the Legislative Assembly of the State, a change in the composition of the assembly can affect the election outcome.  We used the current assembly compositions to work out scenarios for Rajya Sabha in 2011 and 2012.  There could be alliances between parties for the Rajya Sabha elections, so we have estimated a range for each grouping (Scenario I and II) for 2012.  See Notes [1] and [2]. 

Implications for the election of the President

The President is elected in accordance with the provisions of Article 54 and 55 of the Constitution.  The electorate consists of the elected members of Lok Sabha, Rajya Sabha and all Legislative Assemblies.  Each MP/ MLA’s vote has a pre-determined value based on the population they represent.  The election is held in accordance with the system of proportional representation by means of a single transferable vote.  The winning candidate must secure at least 50% of the total value of votes polled. (For details, refer to this Election Commission document).  There is no change in the Lok Sabha composition (unless there are bye-elections).

Position in Legislative Assemblies

After the recent round of assembly elections, the all-India MLA count adds up to:

The above numbers can now be used to estimate the value of votes polled by each coalition. See Note [3]:

The UPA has the highest value of votes polled but the figure is not sufficient to get its candidate elected.  Assuming that there are at most three candidates with significant support (UPA, NDA, and Left/Third Front), the winner will be the one who manages to bridge the gap with second preference votes.  On this factor, the UPA backed candidate is likely to hold the edge over others. 

Notes:

[1] At present, there are four vacant seats in Rajya Sabha (1 Maharashtra, 1 TN, 1 WB and 1 Nominated).  It is assumed that all these seats are filled up in 2011.

[2] Three of the 11 nominated members in the current Rajya Sabha have declared their party affiliation as INC.  These have been included in the UPA count in the above analysis.  For the sake of simplicity, it is assumed that members who get nominated in 2011/ 12 are not aligned to any party/ coalition.

[3] The above analysis is based on the assumption that the next set of assembly elections happen after the Presidential election.

By Rohit and Aakanksha

In February this year, Bihar made it mandatory for its employees to declare their assets.  The new guidelines prescribe that departmental proceedings would be initiated against those who fail to submit these details.  Information filed by employees is now being displayed online.  For instance, click here to see information put out by the Department of Agriculture.

Some other states have also followed suit.  Rajasthan became the second state to do so.  Asset details of employees have been posted on the Department of Personnel website. MP and Meghalaya have announced their intention to implement similar changes.

The central government too has decided to put the asset details of All India Service and other Group A officers in the public domain.  Employees of the central government are governed by the Central Civil Services (Conduct) Rules, 1964.  Under these rules, civil servants are required to file details of their assets on a periodic basis.  However, until now the information provided by employees was held in a fiduciary capacity and kept confidential.  With the new order coming in, this information will now be available to the public.  To ensure compliance, the government has decided that defaulters should be denied vigilance clearance and should not be considered for promotion and empanelment for senior level positions.

It is interesting that the Central Information Commission, in an earlier decision dated July 23rd 2009, had held that ‘disclosure of information such as assets of a Public servant, which is routinely collected by the Public authority and routinely provided by the Public servants, cannot be construed as an invasion on the privacy of an individual.  There will only be a few exceptions to this rule which might relate to information which is obtained by a Public authority while using extraordinary powers such as in the case of a raid or phone-tapping.  Any other exceptions would have to be specifically justified.  Besides the Supreme Court has clearly ruled that even people who aspire to be public servants by getting elected have to declare their property details. If people who aspire to be public servants must declare their property details it is only logical that the details of assets of those who are public servants must be considered to be disclosable. Hence the exemption under Section 8(1) (j) of RTI cannot be applied in the instant case.’

For the Supreme Court judgement referred to in the above decision, click here.

These are interesting developments, especially given the recent debate on corruption. Let’s wait and see if other states follow Bihar’s lead.

The government has given itself the “master key” to access major consumer databases maintained by companies in different sectors. Under new regulations made under the Information Technology Act, government can ask companies to share sensitive personal information about their customers.

Sensitive personal information would cover medical records and history, information about physical, physiological and mental health, sexual orientation, credit and debit cards, biometric information and passwords.

Under the new rules any government agency required under law to obtain information for the purpose of verifying identity, or for prevention, detection, investigation, prosecution, and punishment of offences can ask a company to give sensitive personal information held by it about an individual.

There are no checks on this power, except that the request for information be made in writing, and stating clearly the reason for seeking the information.  Usually information requests have certain inbuilt checks.  For example, search warrants in criminal cases are issued by a court.  Tapping of telephones or interception of electronic communication can only be authorised by the Union or the State Home Secretary after following a prescribed process.  The new Bill for Unique Identification Number (UID) permits such use only by the order of a court, or for national security (by an order of an authorised officer of at least Joint Secretary rank in the central government).

 The last few months saw a number of allegations of corruption in issues such as contracts for the Commonwealth Games, allocation of  2G Spectrum, and the building of the Adarsh housing society.  Professor Kaushik Basu, the Chief Economic Adviser to the Ministry of Finance, has proposed a modification in order to make the anti-corruption law in the country more effective.  The Prevention of Corruption Act, 1988 penalizes both bribe giving and taking.  Bribe giving is punishable under the Act with imprisonment ranging between six months to five years.  He argues that bribe giving should be legalized.

Professor Basu distinguishes “harassment bribes”, which he defines as “bribes that people often have to give to get what they are legally entitled to” from the remaining, “Non-Harassment Bribes” which would involve illegal benefits accruing to the bribe giver at a potential cost to the public interest.  He argues that legalization of harassment bribes would reduce the nexus between the giver (victim) and the taker of a bribe. Giving complete immunity to the bribe-giver would ensure higher reporting and co-operation of the giver in bringing to justice the bribe taker.

The present law acts as a deterrent to reporting of bribery. Courts have also highlighted this issue. The High Court of Delhi in the Bharadwaaj Media Case (2007) observed that a “bribe giver is normally on the mercy of the officials and babus who compel him to pay bribe even for lawful work.” The Court further observed that “Instead of expressing gratefulness to the persons who expose corruption, if the institutions start taking action against those who expose corruption, corruption is bound to progress day and night.”  It can be inferred from the judgement that steps ought to be taken to provide protection to those exposing bribery.

The proposed legalization of bribe-giving may result in increased reporting of bribery and co-operation of the victim during prosecution. The fear that a bribe giver may report the public official could reduce corruption, at least in terms of harassment bribes. However, this proposal may reduce the stigma attached to bribe-giving and result in corrosion of morality. Much of the recent debate around corruption and the Lok Pal Bill revolve around effective prosecution. This paper looks at the incentive structure for reporting bribe-giving, and merits public debate.

A recent case before the Supreme Court has once again highlighted the issue of judicial decisions potentially replacing/ amending legislation enacted by Parliament.  The case importantly pertains to the judiciary’s interpretation of existing law concerning itself.  The eventual outcome of the case would presumably have important implications for the way the higher judiciary interprets laws, which according to some amounts to the judiciary “legislating” rather than interpreting laws.

This assertion has often been substantiated by citing cases such as Vishaka v. State of Rajasthan (1997) where the Supreme Court actually laid down the law pertaining to sexual discrimination at workplaces in the absence of a law governing the same.  In numerous other cases, courts have laid down policy guidelines, or have issued administrative directions to governmental departments.

In the recent case of Suraz India Trust v. Union of India, a petition has been filed asking the court to reconsider its own judgements regarding the manner of appointment and transfer of judges.  It has been contended that through its judgements in 1994 and 1998 (Advocate on Record Association v. Union of India and Special Reference No. 1 of 1998) the Supreme Court has virtually amended Constitutional provisions, even though amendments to the Constitution can only be done by Parliament.  This question arises since the Constitution provides for the appointment and transfer of judges by the government in consultation with the Chief Justice of India.  The two Supreme Court judgements however gave the primary power of appointment and transfer of judges to the judiciary itself.

Importantly, one specific question which has been raised is whether the judgements referred to above really amount to amending the relevant provisions of the Constitution.  Another question raised which is relevant to this discussion is whether the interpretation by courts can actually make provisions in the Constitution redundant.

In its judgement on the 4^th of April, the Supreme Court referred this case to the Chief Justice of India for further directions.  The outcome of this judgement could potentially require the Supreme Court to define the circumstances when it interprets law, and when it “legislates”.  An indication of the Supreme Court’s attitude concerning this issue may be gleaned from the recent speech of the Chief Justice of India, Justice S.H. Kapadia at the M.C. Setalvad lecture.  The CJI unambiguously stated that:

“…In many PILs, the courts freely decree rules of conduct for government and public authorities which are akin to legislation. Such exercises have little judicial function in them. Its justification is that the other branches of government have failed or are indifferent to the solution of the problem. In such matters, I am of the opinion that the courts should be circumspect in understanding the thin line between law and governance...”

This article was published in the Indian Express on April 8, 2011
Dodging the Drafts

By Kaushiki Sanyal and C.V. Madhukar

Social activist, Anna Hazare’s fast unto death for the enactment of a strong Lok Pal Bill has provided an impetus to examine not only the Bill proposed by civil society activists but suggestions made by various experts.

The idea of establishing an authority where the citizen can seek redress against administrative acts of the government was first mooted in 1963 during a debate on Demands for Grants for the Law Ministry. Under the existing system, a citizen can either move court or seek other remedies such as petitioning his Member of Parliament. However, these remedies are limited because they maybe too cumbersome or specific grievances may not be addressed. Also, the laws that penalise corrupt officials do not have provision to redress specific grievances of citizens. Currently, corrupt public officials can be penalised under the Indian Penal Code, 1860 and the Prevention of Corruption Act, 1988. Both these laws require the investigating agency to get prior sanction of the central or state government before it can initiate the prosecution process in a court.

The office of the Lok Pal or an Ombudsman seeks to provide a forum for citizens to complain against public officials. The Lok Pal would inquire into such complaints and provide some redressal to citizens. The basic idea of the institution of Lok Pal was borrowed from the concept of Ombudsman in countries such as Finland, Norway, Denmark, Sweden, U.K. and New Zealand. Presently, about 140 countries have the office of the Ombudsman. In Sweden, Denmark and Finland, the office of the Ombudsman can redress citizens’ grievances by either directly receiving complaints from the public or suo moto. However, in the UK, the office of the Parliamentary Commissioner can receive complaints only through Members of Parliament (to whom the citizen can complain). Sweden and Finland also have the power to prosecute erring public servants.

The first Lok Pal Bill in India was introduced in 1968, which lapsed with the dissolution of the Lok Sabha. The Bill was introduced seven more times in Parliament, the last time in 2001. Each time it lapsed except in 1985 when it was withdrawn.

Several commissions have examined the need for a Lok Pal and suggested ways to make it effective, without violating Constitutional principles. They include: the First Administrative Reforms Commission (ARC) of 1966, the National Commission to Review the Working of the Constitution of 2002 and the Second Administrative Reforms Commission of 2007. The Lok Pal Bills that were introduced were referred to various Parliamentary committees (the last three Bills were referred to the Standing Committee on Home Affairs).

The First ARC report recommended that two independent authorities be created to redress grievances: first, a Lok Pal, to deal with complaints against the administrative acts of Ministers or secretaries of government at the centre and the state; and second, a Lokayukta in each state and at the centre, to deal with complaints against the administrative acts of other officials. Both these authorities should be independent of the executive, judiciary and legislature and shall be appointed by the President on advice of the Prime Minister, Leader of the Opposition and the Chief Justice of India.

The National Commission to Review the Working of the Constitution urged that the Constitution should provide for the appointment of the Lok Pal and Lokayuktas in the states but suggested that the Prime Minister should be kept out of the purview of the authority.
The Second Administrative Commission, formed in 2005, also recommended that the office of the Lok Pal be established without delay. It was in favour of including Ministers, Chief Ministers and Members of Parliament. However, it wanted to keep the Prime Minister outside the Lok Pal’s ambit. The ARC also recommended that a reasonable time-limit for investigation of different types of cases should be fixed.

The 1996, 1998 and 2001 Bill covered Prime Minister and MPs. The Standing Committee examining the 1998 Bill recommended that the government examine two basic issues before going forward with the Bill: first, MPs are deemed to be public servants under the Prevention of Corruption Act, 1988. If they are also brought under the purview of Lok Pal it may be “tantamount to double jeopardy”; and second, subjecting MPs to an outside disciplinary authority may affect supremacy of Parliament.

The 2001 Bill was also referred to the Standing Committee, which accepted that the Prime Minister and MPs should be included in the Bill. It further recommended that a separate legislation be enacted to ensure accountability of the judiciary. It however stated that the Bill did not address public grievances but focussed on corruption in high places.

The states have been more successful in establishing the Lokayuktas. So far 18 states have enacted legislation to set up the office of Lokayukta. While Karnataka Lokayukta is often hailed as a successful case, several other states have had limited success in combating corruption since all of them are recommendatory bodies with limited powers to enforce their findings.

A Group of Ministers is looking into ways to tackle corruption, including the establishment of a Lok Pal. A public debate on the issues raised by various committees would help iron out the weaknesses of any proposed legislation.

This article was published in the Indian Express on April 8, 2011

The Lok Pal (anti-corruption body) Bill has generated widespread interest in the past few days.

The Bill is an attempt by the government, under massive pressure due to corruption charges, to gain some of its lost ground. However, civil rights activists, including Anna Hazare, Swami Agnivesh, Kiran Bedi and Arvind Kejriwal, have termed the draft legislation as weak and demanded that fifty per cent of the members in the committee drafting the bill should be from the public.

But the common man appears to be in the dark about the scope of the proposed bill.

Here’s an FAQ on the controversial bill.

What is the controversy between the government and Anna Hazare about?

Anna Hazare and other civil society activists have proposed a draft Lok Pal Bill to tackle the menace of corruption. The Prime Minister formed a sub-committee of the Group of Ministers to discuss the issue with these activists. However, these two groups were unable to reach an agreement on the provisions of the Lok Pal Bill. According to the government, the activists demanded that the government should accept the Bill drafted by them without any changes.

What steps has the government taken to enact the Lok Pal Bill?

In January 2011, the government has formed a Group of Ministers chaired by Shri Pranab Mukherjee to suggest measures to tackle corruption, including examination of the proposal of a Lok Pal Bill.

What is the purpose of the office of Lok Pal?

The office of the Lok Pal is the Indian version of the office of an Ombudsman who is appointed to inquire into complaints made by citizens against public officials. The Lok Pal is a forum where the citizen can send a complaint against a public official, which would then be inquired into and the citizen would be provided some redressal.

What are issues that have generated debate on the Lok Pal Bill?

There are diverging views on issues such as the inclusion of the office of the Prime Minister, Ministers and Members of Parliament, inclusion of judges, and powers of the Lok Pal. Some experts contend that all public officials should be accountable while others feel that the autonomy and privilege of Parliament require the Prime Minister, Ministers, and Members of Parliament to be accountable only to Parliament.

Have there been other attempts to establish the institution of Lok Pal at the central level?

Yes. The Lok Pal Bill has been introduced eight times in the Lok Sabha (1968, 1971, 1977, 1985, 1989, 1996, 1998 and 2001). However, each time the Lok Sabha was dissolved before the Bill could be passed, except in 1985 when it was withdrawn.

Have any expert commissions made recommendations on the office of Lok Pal?

Yes, a number of commissions have made various recommendations regarding the necessity of the office of the Lok Pal, its composition, powers and functions, and jurisdiction. The commissions, which dealt with the Lok Pal include the First Administrative Reforms Commission of 1966, the National Commission to Review the Working of the Constitution of 2002 and the Second Administrative Reforms Commission of 2007. The Lok Pal Bills that were introduced were referred to various Parliamentary committees (the last three Bills were referred to the Standing Committee on Home Affairs).

What are the present laws that deal with corruption of public officials in India?

Public servants (such as government employees, judges, armed forces, and Members of Parliament) can be prosecuted for corruption under the Indian Penal Code, 1860 and the Prevention of Corruption Act, 1988. However, the Code of Criminal Procedure and the 1988 Act require the investigating agency (such as the CBI) to get prior sanction of the central or state government before it can initiate the prosecution process in a court.

Have the state governments been more successful in setting up bodies to redress public grievances against administrative acts?

So far 18 state governments have enacted legislation to set up the office of Lokayukta and Uplokayukta (deputy Lokayukta). The 18 states are: Andhra Pradesh, Assam, Bihar, Chhattisgarh, Delhi, Gujarat, Jharkhand, Haryana, Himachal Pradesh, Karnataka, Kerala, Madhya Pradesh, Maharashtra, Orissa, Punjab, Rajasthan, Uttarakhand, and Uttar Pradesh.

Which other countries have the office of the Ombudsman for grievances?
Sweden, Finland, Denmark, the Netherlands, Austria, Portugal, Spain, New Zealand, Burkina Faso and the United Kingdom are some of the countries which have the office of an Ombudsman.

The article was published on rediff.com on April 5, 2011

The general discussion on the Railway Budget concluded in Parliament this week. During the discussion, several MPs made a reference to two important documents tabled by the Railway Minister in 2009 – the ‘White Paper’ on Indian Railways and the 2020 Vision document.

The documents provide good insight into the operational and financial performance of Railways over the previous five years. They also throw light on the challenges that confront the Railways today. It emerges that Railways has relied heavily on increasing utilization of existing assets to manage the increase in demand. The system is otherwise severely constrained by lack of adequate capacity.

Scenario so far (2004-09)

Growth in traffic and earnings

Rail transport demand is linked to the growth in GDP. As a result, the two main businesses of Railways – Passenger and Freight – have both seen significant increases in traffic in recent years.

Passenger traffic has grown at an average rate of 10% each year. Earnings have increased at a slightly higher pace, implying that most passengers have been spared increases in fare. Standalone, passenger operations have continued to be loss making. Freight traffic has grown too, but at a lower rate of about 7% and unlike the passenger segment, freight fares have increased significantly over these years.

Freight forms the backbone of Railways’ revenues. Even today, it continues to account for almost two-thirds of total earnings. However, Railways’ market share in freight has decreased steadily over the past few decades – it dropped from 90% in 1950-51 to less than 30% in 2007-08. The main reasons for this decline are high pricing (to subsidize passenger travel) and lack of sufficient infrastructure. Railways are unable to provide time-tabled freight services. In addition, there are no multi-modal logistics parks that could have provided door-to-door cargo services.

Infrastructure constraints

Since 1950-51, route-kms have increased by just 18% and track-kms by 41%, even though freight and passenger output has gone up almost 12 times. Specific issues include:

• Common corridor for both freight and passenger traffic – With freight trains on the same corridor, operating fast passenger trains becomes extremely difficult.
• Concentration of traffic – More than half the total traffic moves on the golden quadrilateral and its diagonals; large parts of these sections are now already saturated.
• Limited capacity for production of rolling stock, particularly locomotives and EMUs.

The above constraints require investment in network and capacity augmentation, including dedicated freight corridors. Hence, a substantial increase in funding is necessary. The Vision 2020 document planned to deploy Rs 14 lakh crore in the next 10 years towards development of rail infrastructure.

Recent trends (as presented in the Budget 2011)

This year’s budget presented the actual financial performance in 2009-10, the provisional performance in 2010-11 and the targets for 2011-12 (Details can be accessed here). It also highlighted achievements on other metrics, including growth in traffic and augmentation of infrastructure (See ‘Status of some key projects proposed in 2010-11‘).

On financials, 2009-10 was a bad year for Railways. Figures show a high Operating Ratio of 95.3%. Operating Ratio is a metric that compares operating expenses to revenues. A higher ratio indicates lower ability to generate surplus. The 2009-10 Operating Ratio is the highest since 2002. According to the Railways Minister, this can be partly attributed to higher payout in salaries and pension due to implementation of Sixth Pay Commission recommendations.

Growth in passenger traffic remained high in 2010-11, at 11%. However, growth in freight traffic slowed down to 2%. Again, passenger fares remained untouched, but freight fares were increased.

Railways, in 2011-12, targets an increase of 8% in both passenger and freight traffic. Financials are expected to improve. An amount of Rs. 57,630 crore has been budgeted as net plan outlay for investment in infrastructure. Last year, this figure was Rs 41,426 crore.

In her opening remarks during the Budget speech in Parliament, the Minister commented that Railways forms an important backbone of any country. Lets hope it is headed in the right direction!

Bihar became the first state to scrap the MLA Local Area Development Fund scheme (MLALAD).  According to news reports, Nitish Kumar, Bihar’s Chief Minister, is planning to replace it with the CM Area Development Programme, which would be implemented at the District level.  The schemes would be selected by a district selection committee headed by the minister-in-charge and MLAs and MLCs of that district as members.  The implementation shall rest with a body of engineers, headed by Engineer-in-chief.  The district magistrates would only monitor implementation and contractors would be chosen through open tendering in which a representative of the Comptroller and Auditor General of India (CAG) would be present.  The state government would allocate funds as per requirement.

The MPLAD and MLALAD scheme was introduced in December 1993 by former Prime Minister, P.V. Narasimha Rao to enable legislators to execute small works of a local nature to meet the urgent needs of their constituents.  Under the scheme, each legislator may identify projects and sanction upto Rs 2 crore per year for public works in their constituencies.  The scheme was mooted after MPs demanded that they should be able to recommend certain development projects in their constituencies.  The projects include assets building such as drinking water facilities, primary education, public health sanitation and roads.  The initial amount allocated was Rs 5 lakh per year to each MP.

It has however not been smooth sailing for the scheme.  Besides the many implementation lapses (as pointed out by the Standing Committee on Finance in 1998-1199, the CAG and the Planning Commission), the constitutionality of the scheme has been questioned by various scholars and experts.

In 2002, the National Commission to Review the Working of the Constitution recommended immediate discontinuation of the MPLAD scheme on the ground that it was inconsistent with the spirit of federalism and distribution of powers between the centre and the state.  Former MP, Era Sezhiyan in a booklet titled ‘MPLADS – Concept, Confusion and Contradictions’ also opposed the scheme and recommended that it be scrapped since it ran contrary to the Constitutional provisions which envisaged separate roles for the Executive and Legislature.  However, the Committee on MPLADS in its 13^th Report and its 15^th Report stated that there was nothing wrong with the scheme per se except some procedural infirmities and recommended among other things a change of nomenclature to the Scheme for Local Area Development.  The debate continued with the 2^nd Administrative Reforms Commission’s report on “Ethics in Governance” taking a firm stand against the scheme arguing that it seriously erodes the notion of separation of powers, as the legislator directly becomes the executive.  However, in response to a Writ Petition that challenged the constitutionality of the MPLAD scheme as ultra vires of the Constitution of India, in May 2010, a five-judge bench of the Supreme Court ruled that there was no violation of the concept of separation of powers because the role of an MP in this case is recommendatory and the actual work is carried out by the Panchayats and Municipalities which belong to the executive organ.  There are checks and balances in place through the guidelines which have to be adhered to and the fact that each MP is ultimately responsible to the Parliament.

Meanwhile, some MPs are pushing for hiking the amount allocated under the scheme to Rs 5 crore.  However, no decision has been reached yet.  The Ministry of Statistics and Programme Implementation has suggested that a single parliamentary committee be formed comprising of members of both Houses of Parliament to monitor MPLAD schemes.

While the question of constitutionality of the MPLAD scheme may have been put to rest by the Supreme Court ruling, other issues related to implementation of the scheme still remain.  Unless problems such as poor utilisation of funds, irregular sanction of works, delay in completion of works are tackled in an efficient manner, the efficacy of the scheme will remain in doubt.

In a recent judgement (Judgement on Feb 23 – Baldev Singh and Ors. V. State of Punjab), the Supreme Court reduced the sentence of three persons convicted of rape from 10 years to 3 and a half years, and also asked the three convicts to pay a fine of Rs 50,000 each to the victim.   In reducing the sentence, the court drew from the provision in S. 376 (punishment for rape) of the Indian Penal Code which allows the court to reduce the sentence for “adequate and special reasons”.

There have been a number of past cases where the Supreme Court has reversed High Court decisions reducing sentences under this provision for not giving suitable reasons.  In 2007, the Supreme Court struck down a decision of the Karnataka High Court which had reduced the sentence of a convicted rapist to 3 and a half years.  The High Court had stated that the sentence should be reduced since the accused was “a young boy of 18 years belonging to Vaddara Community and Illiterate”.  The Supreme Court stated that there is a legislative mandate to impose a sentence for not less than 10 years.  Only in exceptional cases, for “adequate and special reasons” can a sentence less than 10 years be imposed.  It overturned the Karnataka High Court decision saying that there was an “absence of any reason which could have been treated as “special and adequate reason”".

In Baldev Singh’s case, the Supreme Court said:

1.  The fact that the incident is an old one (the incident took place in 1997) is a circumstance which fits into “adequate and special reasons” for reducing a sentence.

2. The parties have entered into a compromise among themselves.

The issue is whether this judgement has gone beyond the legislative mandate, and whether it has adhered to the principles laid down by earlier decisions of the Supreme Court.  In 2007, the Supreme Court itself stated that for a crime like rape, strong reasons have to be given to reduce the sentence envisaged by the legislature.  Moreover, the provision does not envisage the settlement of a crime by payment of compensation to the victim of a crime.  A criminal act is seen in law as a crime against the whole of society (which is why the state’s prosecution agency, and not the victim, goes to court against alleged criminals).  Therefore, criminal actions such as rape (or murder, robbery, kidnapping etc.) cannot be “settled” by the payment of compensation under the Indian Penal Code.  In this light, it should be interesting to see whether the State files an appeal against this judgement.

In a recent judgement, the Karnataka High Court upheld the disqualification of five independent MLAs from the Assembly. These MLAs, who had previously served as Ministers in the Yeddyurappa government, were disqualified along with 11 others after they withdrew their support to the government.

The disqualifications raise some important questions on the working of the anti-defection law. While the law was framed in 1985 with the specific intent of ‘combating the evil of political defections’, over the years several unanticipated consequences have come to the fore. The primary among these is the erosion of independence of the average legislator.

The need for an anti-defection law was first felt in the late 1960s. Of the 16 States that went to polls in 1967, Congress lost majority in eight and failed to form the government in seven. Thus began the era of common minimum programmes and coalition governments. This was accompanied with another development – the phenomenon of large scale political migrations. Within a brief span of 4 years (1967-71), there were 142 defections in Parliament and 1969 defections in State Assemblies across the country. Thirty-two governments collapsed and 212 defectors were rewarded with ministerial positions.

Haryana was the first State where a Congress ministry was toppled. The Bhagwat Dayal ministry was defeated in the Assembly when its nominee for speakership lost out to another candidate. Congress dissidents defected to form a new party called the Haryana Congress, entered into an alliance with the opposition and formed a new government under the Chief Ministership of Rao Birender Singh (also a Congress defector). Haryana thus became the first State to reward a defector with Chief Ministership.

Another Haryana legislator, Gaya Lal, defected thrice within a fortnight. The now well know terms ‘Aya Ram’ and ‘Gaya Ram’ that are often used to describe political turncoats owe inspiration to him.

It was to address this issue that the anti-defection law was passed in 1985. This law amended the Constitution and added the Tenth Schedule to the same. The Supreme Court, in Kihota Hollohon vs. Zachilhu (1992), while upholding the validity of the law held that decisions of disqualification shall be open to judicial review.  It also made some observations on Section 2(1) (b) of the Tenth schedule. Section 2(1) (b) reads that a member shall be disqualified if he votes or abstains from voting  contrary to any direction issued by the political party. The judgement highlighted the need to limit disqualifications to votes crucial to the existence of the government and to matters integral to the electoral programme of the party, so as not to ‘unduly impinge’ on the freedom of speech of members.

This anti-defection law has regulated parliamentary behaviour for over 25 years now. Though it has the advantage of providing stability to governments and ensuring loyalty to party manifestos, it reduces the accountability of the government to Parliament and curbs dissent against party policies. In this context, Manish Tewari’s private member bill merits mention:  he suggests that anti-defection law be restricted to votes of confidence and money bills.  Such a move will retain the objective of maintaining the stability of the government while allowing MPs to vote freely (subject to the discipline of the party whip) on other issues.

This brings us to the question – Is the anti-defection law indispensable? Is defection peculiar to India? If not, how do other countries handle similar situations?

It is interesting to note that many advanced democracies face similar problems but haven’t enacted any such laws to regulate legislators. Prominent cases in UK politics include the defection of Ramsay Macdonald, the first Labour Prime Minister, in 1931. He defected from his party following disagreements on policy responses to the economic crisis. Neither Macdonald nor any of his three cabinet colleagues who defected with him resigned their seats in the House of Commons to seek a fresh mandate.

Australian Parliament too has had its share of defections. Legislators have often shifted loyalties and governments have been formed and toppled in quick succession. In the US too, Congressmen often vote against the party programme on important issues without actually defecting from the party.

India might have its peculiar circumstances that merit different policies.  But, the very fact that some other democracies can function without such a law should get us thinking.

Sources/ Notes:

[1] PRS Conference note: The Anti-Defection Law – Intent and Impact

[2] Column by CV Madhukar (Director, PRS) titled ‘Post-independents’ in the Indian Express

The Budget Session of Parliament began with President Pratibha Patil’s address to a joint session of the Lok Sabha and the Rajya Sabha.  The session will continue till April 21, 2011 with a recess from March 17 to April 3, 2011.  The Railways Budget was presented and the Economic Survey was released on February 25.  The Union Budget will be presented on February 28, 2011.

The agenda for government Bills includes 31 pending Bills for consideration and passing.  Three new Bills are listed for introduction, consideration and passing.  The government plans to introduce 32 new Bills.

The President made certain commitments on legislation for the Budget Session.  We list the commitments made in the speech and the status of implementation.

If the government has its way, accessing the internet using wifi hotspots at airports and cafes just might become a thing of the past.  It might happen because of the way “cyber cafes” are defined in the Information Technology Act.  The IT Act defines a cyber café as any facility which as part of its business offers internet access to people. The

The government has sought feedback on a draft regulation to govern the working of cyber cafes.   The draft regulation can be found here.  The draft regulations requires every cyber cafe to have a license and give internet access to people after they prove their identity to the satisfaction of the cyber café.  The cyber cafés are required to maintain the logs of users and of websites accessed by users. Cyber cafes are also required to ensure that their service is not utilised by people for any illegal activity or for viewing pornography.  There are requirements on the physical layout of the cyber cafe — for example, they need to prominently display a board stating that users may not view pornography.

These regulations by their very nature are designed for a traditional cyber café where people use computer terminals provided by the cyber café owner and access the internet.  But because of the waycyber café is defined in the Act, most public wifi hotspots would be called a cyber café and thereby be regulated by the cyber café guidelines.  So the local café which provides wireless access to its patrons would have to get a licence and follow other cyber café guidelines.  Since the draft guidelines place enough legal responsibility on a cyber café that many café and other public places which offer wireless internet would rethink their strategy of providing this service.

You can send in your feedback to the draft guidelines by the 28th of February to grai@mit.gov.in

There are a little over 4000 MLAs across all states in India.  For the citizen, a law passed by his state legislature is as relevant and important as one passed by Parliament.  And MLAs also have no research support available to them to understand and reflect on policy issues before voting for them in the state assembly.  To make matters worse, the sittings in many state assemblies are abysmally low as can be seen from this graph showing some states.

For a while now, several MPs have been urging PRS to initiate some work with MLAs.  We started a Policy Guide series some months ago — essentially a 2-page note on policy issues of contemporary relevance that would be useful for MLAs.  We started sending these out to MLAs in several states, and some MLAs called PRS back for more information and research.

As a way to increase the engagement, PRS decided to hold a workshop for MLAs.  For this, we partnered with Indian School of Business, Hyderabad, and held our first workshop for MLAs from Jan 3-6, 2011.  In the first edition of the workshop, we had 44 MLAs participating from a dozen states across India.  The response was overwhelmingly positive (see short videos of MLA feedback here), with requests from MLAs to hold more such workshops for other MLAs as well.  Several also wanted longer duration workshops on important policy issues.  We see this as a small beginning for a sustained engagement with our MLAs.