Legislation

Major differences between Lok Pal Bill, 2011 and Jan Lok Pal Bill (Anna version)

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.  

FAQ on Lok Pal Bill

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).  

The Draft Land Titling Bill, 2011

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.

Standing Committee's recommendations on the Whistleblower's Bill

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.

 

NAC's Draft Food Security Bill: A Hit or Miss?

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 NAC Communal Violence Bill: Prevention of Communal and Targeted Violence

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.  

FAQ: Why is land acquisition so controversial?

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.

FAQ: What is Lok Pal Bill? Why the ruckus over it?

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

Can compensation be paid for crimes against the state?

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.

Lokpal - A 'toothless' tiger?

The union government is reportedly considering a legislation to create anti-corruption units both at the centre and the states. Such institutions were first conceptualized by the Administrative Reforms Commission (ARC) headed by Morarji Desai in its report published in 1966. It recommended the creation of two independent authorities - the Lokpal at the centre and the Lokayuktas in the states. The first Lokpal Bill was introduced in Parliament in 1968 but it lapsed with the dissolution of Lok Sabha. Later Bills also met a similar fate. Though the Lokpal could not be created as a national institution, the interest generated led to the enactment of various state legislations. Maharashtra became the first state to create a Lokayukta in 1972. Presently more than 50% of the states have Lokayuktas, though their powers, and consequently their functioning varies significantly across states. Existing institutional framework The Central Vigilance Commission (CVC) and the Central Bureau of Investigation (CBI) are the two cornerstones of the existing institutional framework. However, the efficacy of the current system has been questioned. [1] Though the CVC (set up in 1964) is an independent agency directly responsible to the Parliament, its role is advisory in nature. It relies on the CBI for investigation and only oversees the bureaucracy; Ministers and Members of Parliament are out of its purview. Thus, presently there is no authority (other than Parliament itself) with the mandate to oversee actions of political functionaries. At the state level, similar vigilance and anti-corruption organisations exist, although the nature of these organisations varies across states. Karnataka Lokayukta Act The Karnataka Lokayukta is widely considered as the most active among the state anti-corruption units. [1] It was first set up in 1986 under the Karnataka Lokayukta Act, 1984. The Act was recently amended by the state government following the resignation of the Lokayukta, Justice Santosh Hegde. Justice Hegde had been demanding additional powers for the Lokayukta - especially the power to investigate suo-motu. Following the amendment, the Lokayukta has been given the suo motu powers to investigate all public servants except the CM, Ministers, Legislators and those nominated by the government. Following are the main provisions of the Karnataka Lokayukta Act:

  • The public servants who are covered by the Act include the CM, Ministers, Legislators and all officers of the state government including the heads of bodies and corporations established by any law of the state legislature.
  • The body is constituted for a term of five years and consists of one Lokayukta and one or more Upalokayuktas. All members must have been judges, with either the Supreme Court or some High Court.
  • Members are appointed on the advice of the CM in consultation with the Chief Justice of the Karnataka High Court, the Chairman of the Karnataka Legislative Council, the Speaker of the Karnataka Legislative Assembly, and the Leader of Opposition in both Houses.
  • Investigations involving the CM, Ministers, Legislators and those nominated by the government must be based on written complaints; other public servants can be investigated suo-motu.
  • Reports of  the Lokayukta are recommendatory. It does not have the power to prosecute.

The forthcoming Ordinance/ Bill Given that a Lokpal Bill is on the anvil, it might be useful at this point to enumerate some metrics/ questions against which the legislation should be tested:

  • Should the Lokpal limit itself to political functionaries? Should CBI and CVC be brought under the Lokpal, thereby creating a single consolidated independent anti-corruption entity?
  • Should Lokpal be restricted to an advisory role? Should it have the power to prosecute?
  • Should it have suo-motu powers to investigate? Would a written complaint always be forthcoming, especially when the people being complained against occupy powerful positions?
  • What should be the composition of the body? Who should appoint members?
  • Should the Prime Minister be exempt from its purview?
  • Should prior permission from the Speaker or the Chairman of the House be required to initiate inquiry against Ministers/ MPs?

What do you think? Write in with your comments. Notes: [1] Report of the Second Administrative Reforms Commission (ARC), 'Ethics in Governance' (2007) [2] Additional reading: An interview with the Karnataka Lokayukta