Another blow: Modi lost the legal battle – Editorial (Jan 21, 2012, Deccan Herald)

Gujarat chief minister Narendra Modi has lost the first round of his legal battle over the contentious appointment of Justice (retd) R A Mehta as Lokayukta. Justice V M Sahai of the Gujarat high court on Wednesday settled the split verdict of a two-member division bench delivered last October, by upholding governor Kamla Beniwal’s appointment of Justice (retd) Mehta as Lokayukta, without the aid and advice of the Modi ministry.

The Modi government has now moved the Supreme Court challenging the judgment. Sadly, thus, there is still no finality about the Lokayukta post that has been lying vacant in the state for almost eight years. The so-called legal and procedural wranglings that led to the non-appointment of Lokayukta have been political in nature. Neither Modi, nor the governor and the leader of Opposition, who along with chief justice of the high court who are part of the consultation process under the Gujarat Lokayukta Act, 1986, can escape blame for the failure to choose one.

However, the reasons why Modi felt compelled to knock on the apex court’s doors within 24 hours of the judgment become apparent from a perusal of Justice Sahai’s verdict. Modi not only lost the legal battle, but the judgement is the most severe indictment of his dispensation so far as Justice Sahai’s ‘considered’ observations are a serial rebuke of Modi. According to the judge, the chief minister is guilty of ‘pranks’ that demonstrate ‘deconstruction of our democracy.’ The judge also talks about threat of ‘tyranny’ in the state, Modi sparking ‘a constitutional mini-crisis,’ his ‘spiteful and challenging actions’ arising from a ‘false sense of invincibility’ etc. Whether the instant case called for such indictments or not, Modi would be keen to see them erased from the judgment.

There is another aspect of the judgement that clearly sets a worrying precedent. Justice Sahai avers that in ‘extraordinary or exceptional’ situations, the governor is justified in taking own decisions, without the advice of the Council of Ministers, as required under Article 163 of the Constitution. The judgment appears to have erred in not taking into consideration specific constitutional provisions under Articles 355 and 356 to deal with extraordinary situations wherein the President and Parliament step in to take remedial action. If, on the contrary, governors are allowed act in their discretion without regard to constitutional provisions, elected governments stand to lose their primacy in decision making. It is to be hoped that the apex court would review this position.

http://www.deccanherald.com/content/220864/another-blow.html

SEE ALSO:

• The Lokayukta deception – Editorial (Jan 21, 2012, The Hindu)
  http://www.thehindu.com/opinion/editorial/article2817757.ece

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Playing the communal card – Editorial (Jan 19, 2012, The Hindu)

In the age of Baba Ramdev and countless other copycat dispensers of yogasanas, it will hardly be seen as an aberration if school and college administrations decide to promote yoga among students. However, when yoga as a popular trend becomes yoga by diktat, as happened recently in Madhya Pradesh where the Bharatiya Janata Party government mobilised support for mass surya namaskar camps, the exercise does acquire a divisive subtext. The ostensible purpose of these camps, which saw heavy participation by schools, colleges, and other organisations – many of them privately run and obviously feeling compelled to go along – was to get into the record books.

Yet questions do arise when the entire State Cabinet led by Chief Minister Shivraj Singh Chauhan makes a fetish of performing a particular asana that is known to cause unease among Muslims, including secular sections otherwise supportive of yoga. The surya namaskar carries with it a suggestion of sun worship, which is anathema to orthodox Muslims. Indeed, the pattern was set in 2007 when the State government sought to make yoga – and surya namaskar – compulsory in schools.

The pressure eased only after the Madhya Pradesh High Court ruled against compulsory enlisting for yoga. Earlier in 2007, the State government had controversially made the singing of Vande Mataram compulsory. Ahead of the surya namaskar mobilisation this year, the government secured presidential assent for a draconian law against cow slaughter, which was followed by reports of attacks on Muslims. Clearly, a stint in power and more than a decade of coalitional leadership have not changed the BJP, whose single preoccupation is Hindu sectarian politics. Matters have been made worse by the Congress’ emulation of the BJP’s communal politics – in reverse.

With just a day to go for the announcement of the February-March 2011 State elections, the party blatantly unveiled a 4.5 per cent sub-quota for minorities. Subsequently, Law and Minority Affairs Minister Salman Khursheed offered a further blandishment to the U.P. Muslims in the form of a promise to carve out a nine per cent quota for minorities within the 27 per cent reserved for the OBCs. The move earned the Minister a well-deserved rap on the knuckles from the Election Commission. But it also provided a handle to a combative Uma Bharti who seized it to raise the bogey of “a second partition.” As long as the BJP and the Congress feed off each other, India cannot hope to shed its debilitating communal baggage.

http://www.thehindu.com/opinion/editorial/article2811701.ece

SEE ALSO:

• Secular Thoughts – By K.N. Panikkar (Jan 14, 2012, Frontline)
  http://www.flonnet.com/fl2901/stories/20120127290108700.htm

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Terror in Bihar: Samastipur MLA denounces it as a conspiracy – By Mumtaz Alam Falahi (Jan 11, 2012, Twocircles.net)

Since 22nd November 2011, about a dozen Muslim youths – some engineering students – of Bihar have been picked from Madhubani, Darbhanga, Samastipur and Araria in Bihar and some other states in connection with several unsolved terror cases. The Muslim community including religious leaders and politicians has condemned the arrests on mere suspicion. Akhtarul Islam Shaheen, MLA from Samastipur town, says all this is a conspiracy of RSS in collaboration with their friendly Bihar government just to malign and terrorise the Muslim community. He asks why a Delhi Police team one day brought a stranger to the Muslim-dominated Dharampur locality in Samastipur town and clicked his photos with his hand on the wall of the masjid and madrasa of the mohalla. Will they make a story one day and claim terrorists were being trained at the masjid and madrasa?

TCN: When you saw media reports recently about alleged arrest of some terror suspect from Samastipur particularly Dharampur locality in last two weeks, what was your feeling? A: I felt very bad. But when I enquired about it because it was a serious issue of terrorism, I found none was arrested from the locality. Hindi daily Hindustan had published baseless story about the arrest. None was arrested from Dharampur or Samastipur. Media also ran the story of an arrest from Mohiuddin Nagar area in the district, but next day the youth was released and no media covered the release. All highlighted arrest and it was spread in the world that terrorists were arrested from Samastipur but none published news about release.

TCN: Isn’t it true that a team of Delhi Police had come to Dharampur locality last week for some terror enquiry? A: Yes, one day a team of Delhi Police had come to Dharampur locality. They had brought a person with them. We do not know who the person was. The team visited the house where the person had allegedly lived for couple of months some years back, they enquired and returned. But before leaving the locality, the police team took the person near the mosque in the mohalla. They clicked his photo with his hand on the wall of the mosque. Then they clicked his photo with his hand on the wall of the adjoining madrasa. He was an unknown person. He was not resident of the mohalla. The Imam of the mosque objected it and asked the team who the person was and why they were shooting this stranger’s photo in this pose near the mosque and madrasa.

When this news came to us we got that this is part of a conspiracy being hatched for last several years against the Muslim community. They shot his photo near the mosque and madrasa and one day they will come up with a story and will claim that at this madrasa and mosque in Dharampur terrorists were being trained. We often see such stories on TV and in press and we would often believe the story but when this happened in my locality, we knew this all is fabricated story. TCN: Since 22nd November 2011, about a dozen youths belonging to Bihar have been picked in terror cases either from Bihar or some other places in the country. Bihar was nowhere on the radar of terrorism. Why all of a sudden Bihar has allegedly become hub of terrorists? A: Till before 5-6 years, there was no name of Bihar Muslim youth in such terror activities. When we deeply think about this change in last five years, we come to know that those who are hatching conspiracy against the Muslim community in the country have got support from the present state government of Bihar.

With the arrest of some extremist Hindus in last few years, now the entire country knows that who were really behind the terror attacks in the country. The Hindu extremists were doing this and innocent Muslim youths were picked who would get acquitted after spending 4-5 years in jail. It seems that masterminds of those blasts have now found their friendly government in Bihar and they are infiltrating here too. After all, why there was no Muslim terrorist in Bihar five years back but now all of a sudden they are raiding mohallas and picking Muslim youths in the name of terror? They are maligning the community and Muslim areas. This all is a sinister design of RSS people sitting in Delhi and other parts of the country in collaboration with the state government. We strongly condemn this malicious campaign. We secular people and parties will sit together and oppose it.

http://twocircles.net/2012jan11/terror_bihar_samastipur_mla_denounces_it_conspiracy.html

SEE ALSO:

• A Black Ledger – By Debarshi Dasgupta (Jan 30, 2012, Outlook)
  http://www.outlookindia.com/article.aspx?279626

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Setback to UID – By Usha Ramanathan (Jan 14, 2012, Frontline)

The Parliamentary Standing Committee on Finance has dealt a body blow to the Unique Identification (UID) project. The Unique Identification Authority of India (UIDAI) was set up under the Planning Commission by an executive order on January 28, 2009. The scheme involves the collection of demographic and biometric information to issue ID numbers to individuals. The first numbers were handed to the tribal residents of Tembhili village in Nandurbar district of Maharashtra on September 29, 2010. The National Identification Authority of India Bill, 2010, was introduced in the Rajya Sabha on December 3, 2010. On December 10, 2010, it was referred to the Standing Committee. Over the next year, the Standing Committee received suggestions, views and memoranda, and heard from various institutions, experts and individuals. It was briefed by representatives of the Planning Commission and the UIDAI. News reports were considered and clarifications sought from the Planning Commission. The Standing Committee adopted the report on December 8, 2011. On December 13, 2011, it was placed before Parliament. The report is a severe indictment of the UID project. It found the project to be “conceptualised with no clarity of purpose” and “directionless” in its implementation, leading to “a lot of confusion”. The overlap between the National Population Register (NPR) and the UID is unresolved. The structure and functioning of the UIDAI had not been determined before beginning the exercise. The methodology of collection of data is built on shifting sands. There is no focussed purpose for the resident identity database. Nandan Nilekani, chairman of the UIDAI, in his talks and interviews, calls it “open architecture”. The UID project is only about producing a number and linking an identity to the number. What could be done with that identity infrastructure will depend on who uses it and for what purpose. It leaves the field open for those who have the power to use, or abuse, the data and for those who use the number to converge on data about individuals. Even as it is claimed that obtaining the UID number is voluntary, apprehensions have grown that services and benefits will be denied to those without the number. This is an inversion of the idea of inclusion, which is a key element in the image-building exercise done for the project. The lack of preparation before launching a project of this dimension is striking. As the Planning Commission admitted to the Standing Committee, no committee had been constituted to study the financial implications of the project.

There is no comparative analysis of costs of the UID number and the various extant ID documents. No comprehensive feasibility study was carried out at any time. In fact, the Detailed Project Report was done as late as April 2011. On September 28, 2010, a day before the launch, a group of eminent citizens, including V.R. Krishna Iyer, Romila Thapar, Upendra Baxi, A.P. Shah, Aruna Roy, Nikhil Dey, S.R. Sankaran, Bezwada Wilson, and nine others released a statement reflecting just these concerns. This statement was later submitted to the Standing Committee. In the time that elapsed between the expression of concern by the group of eminent citizens and the report of the Standing Committee, the situation had hardly changed. The Standing Committee has found the project to be “full of uncertainty in technology as the complex scheme is built upon untested, unreliable technology and several assumptions”. This is a serious concern given that the project is about fixing identity through the use of technology, especially biometrics. As early as December 2009, the Biometrics Standards Committee set up by the UIDAI had reported adversely on the error rate. Since then, neither the Proof of Concept studies nor any assessment studies done by the UIDAI have been able to affirm the possibility of maintaining accuracy as the database expands to accommodate 1.2 billion people. The estimated failure of biometrics is expected to be as high as 15 per cent. Critics of the project have referred to studies such as the 2010 report of the National Research Council in the United States (cited in Frontline December 2, 2011: “How reliable is UID?”), which concluded that “human recognition systems” are “inherently probabilistic and hence inherently fallible”. In India, a report from 4G Identity Solutions, which is a consultant to the UIDAI and supplies it with biometric devices, suggested that children under 12 years and persons over 60 years would find their fingerprints to be undependable biometrics. Most damaging to the credibility of using fingerprints for authentication – which is what is proposed and currently seen as practical in terms of cost and technology – is what Ram Sevak Sharma, Director-General and Mission Director of the UIDAI said in an interview to Frontline (December 2, 2011, page 8): “Capturing fingerprints, especially of manual labourers, is a challenge. The quality of fingerprints is bad because of the rough exterior of fingers caused by hard work and this poses a challenge for later authentication…. Issuing a unique identity with iris scans to help de-duplication will not be a major problem. But authentication will be because fingerprint is the basic mode of authentication.” The Standing Committee has taken this admission on board. Enrolment requires an individual to produce documents that the enroller accepts as sufficient proof of person and address. When documents do not exist, or they are inadequate for the purpose, a person may find a “verifier” to establish their identity. Or, especially in the case of the poor, they may be introduced to the system by approved introducers. In practice, these two methods have been shown to be irrational and prone to error. The Home Ministry had questioned this erratic method of enrolment and its implications for national security. These concerns have resonated with the Standing Committee.

Nilekani has been talking about enrolling 600 million residents before he completes his term in 2014. However, it seems that the Cabinet Committee on UID had, in the first instance, given its approval to let him enrol 10 crore residents, which was later increased to 20 crores. The UIDAI does not currently have the mandate to enrol more than that number. To meet his target of 600 million, Nilekani entered into memorandums of understanding with a multiplicity of entities, including State governments, banks, oil companies and insurance companies, to act as registrars. This may have helped in spreading the net wider to capture residents to get their demographic and biometric data. But it also meant that the chances of duplication of work increased. The Ministry of Home Affairs also alleged that some registrars had not adhered to the procedures laid down by the UIDAI, setting the MoUs to nought. This, it was feared, was also compromising the security and confidentiality of the information gathered. The Standing Committee found that issues relating to the process of data collection, the duplication of efforts and the security of data remained unresolved. The UIDAI says it is now developing a monitoring and evaluation framework. There are plans for periodic audits. The project has carried on so far without these essential safeguards. There has been speculation that the dissensions within are signs of a turf war. There could be something in that. Yet, the Standing Committee report reveals that the issues have been raised by a range of agencies and they are impossible to ignore. So: the Ministry of Finance (Department of Expenditure) has been concerned about the duplication of effort and expenditure among at least six agencies that collect information – the NPR, the Mahatma Gandhi National Rural Employment Guarantee Scheme (MNREGS), the BPL (below poverty line) Census, the Rashtriya Swasthya Bima Yojana (RSBY) and bank smartcards. The Ministry of Home Affairs has raised security concerns about “introducers”, the involvement of private agencies which could also have security implications, and the uncertainties in the revenue model of the UIDAI which proposes that a fee be imposed once a separate pricing policy is in place. The NIC has pointed out that privacy and security of UID data may be better handled if they were stored in a government data centre. The Planning Commission has voiced its reservations about the merits and functioning of the UIDAI. It has also questioned the necessity of collecting iris images, which has resulted in a steep escalation of costs.

Further, there is the matter of the number of government agencies collecting biometrics as part of different schemes that ought to give one pause. Setting a refreshing precedent, the Standing Committee has drawn on the research around the United Kingdom’s Identity Project anchored at the London School of Economics and Political Science. While acknowledging that there are likely to be differences between one jurisdiction and another, it found it relevant to draw lessons regarding the factors of complexity; untested, unreliable and unsafe technology; possibility of risk to the safety and security of citizens; and requirement of security measures of a high standard, which is likely to result in escalating operational costs. In the UID project, every resident is entitled to a UID number. It is not a marker of citizenship. The Standing Committee’s concern is that even illegal migrants can get the UID number. It favours restricting the scheme to citizens for the reason that this entails numerous benefits proposed by the government. What upset the Standing Committee most was the disdain shown to Parliament in proceeding with the project, on the premise that the “powers of the executive are coextensive with legislative power of the government”. What would happen if Parliament rejected the project and the law? In the Attorney-General’s opinion: “If the Bill is not passed for any reason and if Parliament is of the view that the authority should not function and expresses its will to that effect, the exercise would have to be discontinued. This contingency does not arise.” This anticipation has been belied by the rejection of the project and of the Bill by the Standing Committee. The Standing Committee also considered “unethical and violation of Parliament’s prerogatives” the continuance of the project while the framing of the law is under way.

The government, as the Standing Committee records, had recognised the need for a law to deal with the security and confidentiality of information, imposition of obligation of disclosure of information in certain cases, impersonation at the time of enrolment, investigation of acts that constitute offences, and unauthorised disclosure of information. Yet the project was rolled out with no protections in place. The Standing Committee recognised the legitimacy of concerns raised about issues, including access and misuse of personal information, surveillance, profiling, linking and matching databases in securing confidentiality of information. A data protection law has to be debated and enacted before large-scale collection of information from individuals and its linkage across separate databases can be contemplated. The “concerns and apprehensions” voiced by the Standing Committee have led to its categorical rejection of the Bill. In conclusion, the committee has said that it will “urge the government to reconsider and review the UID scheme as also the proposals contained in the Bill in all its ramifications and bring forth a fresh legislation before Parliament”. The data already collected may be transferred to the NPR, if the government so chooses. That, however, is not all. The NPR, which came in for scrutiny because of its link with the UID project, has embarked on the collection of biometric data which is authorised neither by the Citizenship Act, 1955, nor by the Citizenship Rules of 2003. This, the report says, has to be examined by Parliament. Until then it is reasonable to assume that it should be suspended. The UID project has raised many questions about data convergence, imperfect technology, national and personal security, extraordinary expenditure, exclusion and inclusion, and the source of power to gather, hold and use data about individuals. This report raises unanswered questions about the biometric and data-gathering ambitions of the state. The association of the project with a corporate icon has tended to lull many into complacency. Yet, as is reflected in the Standing Committee report, the process, the technology and the consequences are deeply problematic. The report leaves no room for doubt that the UID project will have to be revisited and the NPR re-examined

http://www.flonnet.com/fl2901/stories/20120127290103900.htm

SEE ALSO:

• ‘I Don’t See Any Need To Add To Exemptions In RTI’ – Satyananda Mishra tells Anuradha Raman (Jan 23, 2012, Outlook)
  http://outlookindia.com/article.aspx?279556

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The Statue Of Limitations – By Sharat Pradhan (Jan 23, 2012, Outlook)

Five years ago, when Uttar Pradesh chief minister Mayawati went on her statue installation and memorial building spree-allocating thousands of crores to those dream projects – little would she have imagined that a day would come when each of these would be put under a veil. The statues and memorials that came up in defiance of restrictions imposed by the high court, only to be repeatedly overruled by the apex court, could not withstand the directive of the Election Commission. The EC was acting on complaints filed by opposition parties. But will this move impact Mayawati in any way? Political analyst P.C. Tandon feels “the EC move could be a blessing in disguise for Mayawati, who would use this as a card to ensure a re-consolidation of her Dalit votebank.” Already her close ring of confidants are crying foul. Says one of them, “The manner in which all this has been done clearly suggests that the day is not far when the opposition will try to even cause damage to the statues of other great social reformers who devoted their lives to the upliftment of the Dalits and other downtrodden castes.”

Clearly, notwithstanding the Election Commission’s claims that its diktat was only in pursuance of its mandate of ensuring a level playing field, Mayawati is all set to twist it to the BSP’s advantage. Mayawati has, in a statement, already dismissed the EC order as not only “unfair” but also as a reflection of its bias against Dalits. She also said, “Give me another example where statues of any political party’s ideologue or leader were ordered to be covered in the larger interest of free and fair polls.” According to her, “the order is specific only to BSP leaders and icons.” What has irked a lot of BSP supporters is the covering of statues of elephants, because it is her party symbol. Party leaders describe this justification as “ridiculous”. Asks a BSP leader: “Going by that logic, will the Election Commission remove all bicycles on the road because that is the SP’s symbol, ban people from raising their hands because the hand is the symbol of the Congress, and hide all lotuses in every pond since that is the BJP’s symbol?” This is a point which had earlier been articulated by BSP spokesperson Satish Mishra.

Rest assured, Mayawati will be raising the unfairness of it all before the electorate. And she will find many sympathisers, particularly from among her Dalit supporters sitting on the fence, disillusioned by her despotic ways and uncharitable disposition towards the commoner and ready to switch loyalties to another political dispensation. While her statues have been hidden from public gaze for as long as the election model code of conduct is in force, Mayawati’s general demeanour has not changed. With an overpowering security paranoia, she prefers the confines of her ivory towers, making herself inaccessible. Be it ministers, legislators, bureaucrats or other functionaries. As for the average citizen, he sees the covering of the statues as a wasted exercise. In fact, the general consensus in Lucknow is that the operation has only focused attention on what people had learnt to ignore. Besides, the 1 crore spent on the ‘cover-up’ is seen as a waste of public money. However one looks at it, veiling the statues can do Mayawati no harm.

http://outlookindia.com/article.aspx?279571

SEE ALSO:

• Dalit and the dominoes – By Revati Laul (Jan 28, 2012, Tehelka)
  http://tehelka.com/story_main51.asp?filename=Ne280112Coverstory.asp
• ‘Are All Hands, Lotuses, Cycles Created Using Govt Funds?’ – S.Y. Quraishi with Anuradha Raman (Jan 30, 2012, Outlook)
  http://www.outlookindia.com/article.aspx?279636

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Lost opportunities – By V. Venkatesan (Jan 14, 2012, Frontline)

In writing the history of Lokpal legislation in India, the Lokpal and Lokayuktas Bill, 2011, may have to be split into several chapters. Of these, the events connected with the non-passage of the Bill in Parliament in December 2011 may well be suitably titled “Opportunities Missed & Focus Derailed”. An observer has only to look at the various stages in the evolution of this Bill to understand the proposed changes the government had accepted or rejected, which led to the uncertainty about its passage and indeed its future. On December 22, the government introduced the Bill along with the Constitution (116th Amendment) Bill in the Lok Sabha. This Bill incorporated some of the recommendations of the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice. This was a completely new Bill as the government had withdrawn its previous Lokpal Bill, which it introduced in the Lok Sabha on August 4, 2011, and later referred to the Standing Committee. The Standing Committee tabled its report on December 9, 2011. The August Bill did not propose to confer constitutional status on the Lokpal. The Standing Committee recommended constitutional status so that the Lokpal had higher stature and increased legitimacy. The committee believed that constitutional status would enhance the legal and moral authority of the Lokpal institution and also insulate the basic principles of the Lokpal from the vicissitudes of ordinary or transient majorities. “It is inconceivable,” the committee stated, “that while parties are in favour of the institution of Lokpal in principle, as a statutory body, parties would not agree with equal alacrity for the passage of a constitutional amendment Bill.” Yet, the Lok Sabha, which passed the Lokpal and Lokayuktas Bill with a few amendments, rejected the Constitution (116th Amendment) Bill, which required two-thirds majority of the House present and voting for its passage. The object of the Constitution Amendment Bill is laudable as it seeks to create an autonomous and independent Lokpal at the Centre and Lokayuktas in the States with powers of superintendence and direction over investigation and prosecution of public servants accused of corruption. Yet, it failed to secure the requisite support in the Lok Sabha because members found a huge gap between its object and the provisions of the Lokpal and Lokayuktas Bill.

The Standing Committee also recommended constitutional status to the grievance redress mechanism and a separate law to guide citizens on procedural matters and to acknowledge a citizen’s complaint within a fixed time frame. The government introduced the Right of Citizens for Time Bound Delivery of Goods and Services and Redressal of their Grievances Bill, 2011, in the Lok Sabha on December 20, but did not see merit in according constitutional status to it. During the debate in Parliament, the opposition was critical of the government’s control over the selection and removal of members of the Lokpal. The Congress member of the Rajya Sabha and Chairman of the Standing Committee, Abhishek Manu Singhvi, argued that it was usual for the government to enjoy a slight majority in selection committees meant to choose members of a constitutional body. The Leader of the House in the Lok Sabha, Pranab Mukherjee, suggested that just because the government appointed constitutional functionaries, it did not mean it could influence them. But the Standing Committee report shows that it wanted to dilute the provisions with regard to selection and removal in the Bill that was introduced in August. That Bill had proposed a nine-member selection committee, five of whom would have been government nominees. The Standing Committee recommended a four-member selection committee comprising the Prime Minister, the Speaker of the Lok Sabha, the Chief Justice of India (CJI), an eminent Indian nominated unanimously by the Comptroller and Auditor General (CAG), the Chief Election Commissioner (CEC) and the Chairman of the Union Public Service Commission (UPSC), and the Leader of the Opposition in the Lok Sabha. The December Bill proposes five members, of whom three should be government nominees – the Prime Minister, the Speaker, the Leader of the Opposition in the Lok Sabha – and the CJI or a judge of the Supreme Court nominated by the CJI, and one eminent jurist nominated by the President. Had the government accepted the Standing Committee’s recommendation, it could have dented somewhat the opposition’s criticism.

Again, on the question of removal of members of the Lokpal, the standing committee had recommended that a citizen should be allowed to approach the Supreme Court directly with a complaint, rather than on the basis of a reference from the President, as required under the August Bill. The committee had also suggested that if the President did not refer a citizen’s petition the reasons should be given. The Bill of December rejects both these recommendations. Clearly, the government’s eagerness to control the appointment and removal of Lokpal members is at odds with the object of the Constitution Amendment Bill, which is to make the Lokpal and the Lokayuktas independent and autonomous of the government. It is fair to argue that constitutional authorities, once appointed, tend to become autonomous in their functioning. But as the movement for a strong Lok Pal was born out of a strong distrust of the government, the government must have gauged that such provisions would be looked at with intense suspicion. The composition of the Lokpal is another contentious issue. Abhishek Manu Singhvi claimed in the Rajya Sabha that it was wrong to consider the requirement that at least 50 per cent of the nine-member Lokpal belong to the Scheduled Castes/Scheduled Tribes/Other Backward Classes/women/minorities as reservation. He argued that the provision was only meant to ensure diverse representation, considering the pluralistic diversity of India. He may well be right. But his claim was contrary to what Minister of State for Personnel, Public Grievances and Pensions V. Narayanasamy said while moving the motion for consideration of the Bill in the Rajya Sabha. He said the provision was incorporated in response to the demands from various political parties that there should be reservation for these sections. The Bill of August provided that the Lokpal would have its own investigation and prosecution wings. The Standing Committee, however, sought to dilute this by recommending instead that the Lokpal conduct a preliminary inquiry, after which the Central Bureau of Investigation (CBI) would investigate. Also, the CBI would have autonomy over its investigation. The committee also proposed that the Lokpal will have a supervisory role over the CBI in cases relating to Group A and B officers.

The Bill of December further diluted these recommendations. The Lokpal, it says, shall refer a preliminary inquiry against Group A, B, C and D employees to the Central Vigilance Commission (CVC). The Bill further says that after conducting the inquiry, the CVC shall submit a report to the Lokpal in the case of Group A and B employees and proceed according to specified procedure in the case of Group C and D staff. The CVC, according to the current Bill, shall send periodic reports to the Lokpal on its cases. The Bill adds that if a prima facie case exists against a public servant, the Lokpal may refer it to the CBI for investigation. Also, it may refer a case for preliminary inquiry to the CBI (other than Group A, B, C and D officers). The Bill also provides that the Lokpal shall exercise general superintendence over the CBI (similar to the CVC’s supervision currently). These additional dilutions in the later Bill, according to critics, reduce the Lokpal to just a post office. The Standing Committee’s recommendations in the inquiry and investigation aspects, too, have been diluted. The committee recommended that the Lokpal conduct only the preliminary inquiry and that it be authorised to initiate it suo motu. In such cases, the inquiry would have to be done by a five-member Lokpal Bench that is not connected with the suo motu initiation. More important, the accused would not get an opportunity to be heard at this stage, though the Bill of August allowed that. The later Bill rejects both these recommendations and sticks to the August version, which provided that the Lokpal could initiate an inquiry only on the basis of a complaint by a citizen. The only concession the Bill makes is that the Lokpal shall have its own inquiry wing to conduct a preliminary inquiry on a complaint it has received and has decided can be inquired into.

The government’s Bill underwent three crucial amendments after its introduction and before its passage in the Lok Sabha, and all three have the potential to weaken the Lokpal further. First, the Bill as introduced made it clear that it would be applicable to the States and that it might be notified on different dates for different States. The government then amended the Bill to say that it shall be applicable to the States only if they give their consent. Although meant to address the concerns of States over the Bill’s provisions, the amendment can make the Act a non-starter if the States choose not to give their consent. Secondly, the Bill as introduced in the Lok Sabha insisted that investigations must be completed within six months and that this period might be extended by six months for reasons to be recorded in writing. The Bill did not provide for further extensions. However, the amended Bill as passed by the Lok Sabha allows extension of six months at a time for reasons to be recorded in writing and does not limit the number of extensions. Third, the Bill as introduced in the Lok Sabha required that the Lokpal send a copy of its investigation report to the Competent Authority (the Lok Sabha, the Prime Minister, the Speaker or Chairman of the Rajya Sabha), which would table it in the House and communicate the action taken to the Lokpal within 90 days. The Bill as amended and passed by the Lok Sabha has removed the requirement of reporting to the Lokpal on action taken. An element of mutual checks and balances to ensure accountability has been inexplicably removed.

http://www.flonnet.com/fl2901/stories/20120127290100800.htm

SEE ALSO:

• Pamphlet targets all political parties over Lokpal, CBI – By Tehelka.com Bureau (Jan 20, 2012, Tehelka)
  http://tehelka.com/story_main51.asp?filename=Ws200112TEAM_ANNA.asp
• ‘Whole Bill diluted’ – Prashant Bhushan tells V. Venkatesan (Jan 14, 2012, Frontline)
  http://www.flonnet.com/fl2901/stories/20120127290101200.htm

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