IAMC Weekly News Roundup – January 23rd, 2012
In this issue of IAMC News Roundup
- Narendra Modi fails to evoke ‘sadbhavana’ in Godhra
- Gujarat HC indicts ‘spiteful’ Modi, upholds governor’s lokayukta
- Jaipur Literature Festival: Banned writers not heroes, hurt Muslims, says Chetan Bhagat
- Final hearing on conspiracy charge against Advani in Babri case on March 27
- Harassment of a Bihar family due to competition between investigative agencies
- Video shows BSF jawans thrashing youth near Bangladesh border
- Rights group slams Jamia for “harassing” RTI activist
- NRHM scam: CBI books UP revenue board member
- Law Commission wants dowry law toned down
- Orissa Dalit gangrape: Charged with sheltering accused, agriculture minister resigns
Opinions & Editorials
- Another blow: Modi lost the legal battle – Editorial
- Playing the communal card – Editorial
- Terror in Bihar: Samastipur MLA denounces it as a conspiracy – By Mumtaz Alam Falahi
- Setback to UID – By Usha Ramanathan
- The Statue Of Limitations – By Sharat Pradhan
- Lost opportunities – By V. Venkatesan
Narendra Modi fails to evoke ‘sadbhavana’ in Godhra (Jan 20, 2012, DNA India)
Gujarat Chief Minister Narendra Modi failed to strike a ‘sadhbhavna’ chord with the minority community here, as evidenced by the minuscule turnout for his day-long fast today. The community leaders in Polan bazaar, the area from where most accused of Godhra train burning incident hail, said they wanted to send a message to Modi government that Muslims were seeking justice, not just harmony.
“By not attending the function, we have sent a strong message to the state government that there cannot be any sadbhavana without every person of the Muslim community getting justice,” said some community members, preferring anonymity. The local BJP leaders had expected a crowd of over 50,000, including a big chunk from the minority population, to attend the event at the State Reserve Police ground.
Before the fast started, social activist Shabnam Hashmi and five others of NGO Anhad were detained while trying to organise a convention ‘In Search of Justice’. The tenth anniversary of train carnage, which led to communal riots in the state in 2002, falls next month.
- Moving on not easy for acquitted Godhra accused (Jan 18, 2012, Times of India)
- Activist Hashmi, 5 others detained in Godhra during Narendra Modi’s ‘Sadbhavana’ fast (Jan 20, 2012, Times of India)
- Is Modi fasting to atone for 2002 riots? asks Congress (Jan 20, 2012, Times of India)
- Sting op: Godhra convict picks holes, HC may hear plea (Jan 23, 2012, Indian Express)
Gujarat HC indicts ‘spiteful’ Modi, upholds governor’s lokayukta (Jan 19, 2012, Times of India)
In a setback to Gujarat chief minister Narendra Modi, the Gujarat high court on Wednesday upheld the appointment of justice R A Mehta as Lokayukta while rapping the CM for the manner in which the Lokayukta controversy panned out since mid-2011. However, this is not the end of the story as BJP leaders indicated that Modi was likely to go to the Supreme Court in appeal against the high court ruling. The case had been transferred to Justice V M Sahai after a division bench came up with a split verdict last year. In his order, the judge ruled governor Dr Kamla was right in exercising her discretionary powers to make the appointment. The court observed that Modi had created “a constitutional mini-crisis” and that the situation required extraordinary remedies.
“For preserving our democracy from being beleaguered and to prevent tyranny, it became absolutely essential for the governor to exercise discretionary power under Article 163 of the Constitution and to appoint Justice (retired) R A Mehta as Lokayukta, without or contrary to the aid and advice of the council of ministers headed by the chief minister, as their action and conduct were perilous to our democracy and rule of law,” the verdict said. Justice VM Sahai of the Gujarat high court concurred with Justice Akil Kureshi’s opinion but differed with Justice Sonia Gokani. With two of the three judges agreeing with the appointment, the state government’s petition challenging Justice R A Mehta’s appointment as Lokayukta was dismissed. Justice Kureshi had said in his order that governor Dr Kamla was right in making the appointment as the consultation process between CM Narendra Modi and Chief Justice S J Mukhopadhaya was over on the day the Chief Justice defended Justice Mehta against Modi’s charge of being biased.
Gujarat has been without a Lokayukta since November, 2003 because Modi’s choice of a successor to Justice S M Soni had been rejected by the HC Chief Justice and thereafter Modi had refused to agree to retired judge R A Mehta’s name. He had got into an ugly spat with the governor for going ahead with Mehta’s appointment and had even written to the PM, demanding her recall and move the HC challenging the appointment. Despite the strongly-worded judgment, the Gujarat government stuck to its guns. Government spokesman Jay Narayan Vyas said, “The issue is whether the governor should be allowed to exercise absolute powers or whether she or he must act on advice from the state’s council of ministers. He said the government will study the judgment carefully and, after taking legal opinion, may approach the Supreme Court, if desired.”
The order was critical of Modi’s decision to appoint the justice M B Shah commission to look into corruption cases and to move Gujarat Lokayukta (Amendment) Ordinance, which would have ensured that the Chief Justice has no role in the Lokayukta’s appointment. Justice Sahai observed in his order, “The CM acted under a false impression that he could turn down the superiority and primacy of Chief Justice’s opinion which was binding. The spiteful and challenging action demonstrates the false sense of invincibility.”
- Lokayukta is people’s hope for battling corruption: Gujarat HC (Jan 18, 2012, Deccan Herald)
- Gujarat Lokayukta case: Cong accuses Modi of hypocrisy (Jan 18, 2012, Times of India)
- Mehta’s views on ’02 riots, Surat floods upset Modi (Jan 19, 2012, Indian Express)
- Narendra Modi must abide by law of land: Veerappa Moily (Jan 19, 2012, DNA India)
Jaipur Literature Festival: Banned writers not heroes, hurt Muslims, says Chetan Bhagat (Jan 21, 2012, Times of India)
Best-selling Indian writer Chetan Bhagat on Saturday criticised the support leant to authors whose books are banned for offending religious communities, a day after Salman Rushdie cancelled his trip to Jaipur citing death threat warning. Bhagat, whose five novels have sold around 6 million copies, condemned the banning of texts at the Jaipur Literature Festival but criticised people who proclaim their writers as heroes for upholding the right to free speech.
“( Banned books) have hurt people, they have hurt Muslims,” said Bhagat. “I don’t think anyone should be banned… but let’s not make heroes out of them.” Rushdie said on Friday that he was abandoning his visit to the five-day festival due to assassination threats against him, following protests by some Indian Muslim groups at the invitation to the author of The Satanic Verses.
Organizers of the festival said in a statement late on Friday that they would not tolerate any legal violations at the event after two authors read passages from The Satanic Verses, which is banned in India, in support of Rushdie. “Any comments made by the delegates reflect their personal, individual views and are not endorsed by the festival, or attributable to its organizers,” they wrote in the statement.
The publication of The Satanic Verses over twenty years ago sparked a wave of protests around the world after Iranian leader Ayatollah Khomeini claimed that the novel’s portrayal of the prophet Muhammad insulted Islam. Bhagat, whose best-selling novels such as 2005’s One Night @ the Call Centre have divided literary critics, has risen in prominence over the past year as an outspoken supporter of the movement headed by anti-corruption campaigner Anna Hazare. “Everyone has a right to hurt, but people don’t have to,” Bhagat added.…
- Rushdie row: Mumbai police sources deny getting any inputs of life threat (Jan 21, 2012, IBN)
- MP demands arrest of writers for reading ‘Satanic Verses’ (Jan 21, 2012, Deccan Chronicle)
- Muslim groups demand action against authors (Jan 21, 2012, IBN)
- Four writers who read from The Satanic Verses leave Jaipur to avoid arrest (Jan 22, 2012, The Hindu)
Final hearing on conspiracy charge against Advani in Babri case on March 27 (Jan 17, 2012, The Hindu)
The Supreme Court on Monday posted for final hearing on March 27 a CBI special leave petition against a judgment of the Allahabad High Court, which upheld the dropping of the conspiracy charge by a special court against BJP leaders L. K. Advani, Murli Manohar Joshi, Uma Bharti and 18 others in the Babri Masjid demolition case. Senior counsel Ravi Shankar Prasad drew the court’s attention to the fact that the appeal was time-barred. However, a Bench of Justices H.L. Dattu and C.K. Prasad said it would post the matter for final disposal.
When Additional Solicitor-General Vivek Tanka described the matter as the famous Babri Masjid demolition case, Justice Dattu retorted, “It is neither famous nor infamous, just an incident that had happened.” The High Court had on May 20, 2010 upheld the special court’s order of May 4, 2001 and dismissed the CBI’s revision petition for a direction to proceed with the conspiracy charge against Mr. Advani and others. The CBI filed the appeal nearly nine months after the High Court verdict, with an application for condonation of the delay.
Mr. Advani and others, in their response, said the accused in crime no 198/1992 had already appeared before the special court, Rae Bareli, pleaded not guilty to the charges framed against them, and claimed trial. Already 12 witnesses were examined. They said the entire exercise of the CBI in filing a consolidated charge sheet before the special court in Lucknow and challenging the proceedings up to the level of the Supreme Court was nothing but an abuse of the process of law. It also raised serious doubts about the bona fides of the CBI especially when the issue that the Lucknow special court had no jurisdiction to try the case had attained finality for, the special leave petition, the review petition and the curative petition had all been dismissed.
Mr. Advani said the trial court had rightly concluded that it had no jurisdiction to try the case, and therefore there was no illegality in the impugned order dropping the conspiracy charge. This order was rightly upheld by the High Court. Mr. Advani and 20 others faced charges in two cases arising out of two separate First Information Reports. The first FIR, in which conspiracy was alleged against “lakhs of unknown kar sevaks,” was for the offence of demolition (case 197). The second FIR specifically charged Mr. Advani and other leaders with making inflammatory speeches leading to the demolition, and this case (198) was tried in the special court in Rae Bareli. The two cases were later merged and handed over to the CBI, which filed a composite charge sheet on October 5, 1993.
However, due to a technical flaw, the two cases were revived by an order of the High Court on February 12, 2001. On May 4, 2001, the sessions judge dropped the conspiracy charge against Mr. Advani and others, on the ground that case 197 related only to kar sevaks. This ruling was upheld by the High Court last year. Assailing this order of the High Court order, the CBI said the trial court had erroneously concluded that the three BJP leaders and 18 others should be tried in case 198 and not 197. This distinction was made on the ground that those against whom only instigation and allied offences were made out should be relegated to case 198. Those who had indulged in the actual demolition, along with the offences of snatching of cameras and assault on mediapersons, should be tried in case 197.The CBI contended that the bifurcation of the case attempted by the trial court and approved by the High Court was completely erroneous in law.
- ‘Nothing famous or infamous about Babri demolition’ (Jan 17, 2012, Hindustan Times)
- Malegaon blast accused in fray from 2 seats (Jan 18, 2012, Indian Express)
- Kerala police investigating Rahul Easwar’s ties with Ram Sene (Jan 12, 2012, Twocircles.net)
- Sadhvi Pragya’s plea to travel by air or AC coach rejected (Jan 22, 2012, Indian Express)
Harassment of a Bihar family due to competition between investigative agencies (Jan 18, 2012, Twocircles.net)
For long it has been said that there is a competition among investigative agencies particularly to crack terror cases – nothing wrong in it – but it was also said that some innocents may be falling victim to this competition. A new case has come to light which shows that four sons of a Muslim family of Bihar’s Darbhanga district are the latest victim of the competition. Eminent civil rights group ANHAD on Wednesday held a press conference at its office in Delhi where Taquee Ahmed narrated the saga of harassment that began on 9th December 2011 and has continued till today. He told how his brother Naquee Ahmed, who was flown to Mumbai by Special Cell of Delhi Police whom he was cooperating in a case for some weeks, was poached there by Maharashtra ATS. Taquee and Naquee Ahmed live in Abul Fazal, New Delhi. Taquee runs a shop, Luggage Mart, on the Kalindi Kunj-Sarita Vihar road. Their two elder brothers live in Mumbai, where they run a workshop to produce trolley bags. They hail from Darbhanga, where their parents still live.
9th December: Razi Ahmed, resident of Mumbai, arrived in Delhi from Kolkata. He was visiting his brothers, Naquee and Taquee Ahmed, who live in Abul Fazal. He went to the parking and took an auto when two men forced themselves into the auto, sitting on each side. Razi panicked but the two men told him that they belonged to the Intelligence. They went to Shaheen Bagh bus stop. Taquee came to the bus stop and the two Intelligence men demanded that they produce Naquee before them. Taquee demanded to see their ID. After much haggling, they showed their IDs. Their names were Lalit Mohan Negi and Hriday Bhushan (belonging to Special Cell). Naquee was called to the bus stop after that. Lalit and Bhushan asked him about one Gayur Jamali (he was arrested in November 2011). Naquee said that he had social relations with him from the time they lived in Darbhanga (Bihar). They asked him if he had helped two men get accommodation in Bombay. Naquee said yes, that he had. He did not know about Gayur’s activities or intentions – knowing him socially he had helped him by puting him in touch with a broker in Bombay. The two men then asked him to cooperate with their investigation and Naquee agreed. Naquee and his two brothers went to the Special Cell office in Lodhi Colony, where Naquee was made to talk to Gayur.
10th December: Naquee was taken to Bombay by the 10:30 Go Air flight. Naquee helped them identify the locality in which the house had been rented. It also turned out that the Special Cell had rented a place in the area to keep a watch. They returned on 13th December. Over the next few days, between 15th December and 7th January, Taquee and Naquee visited Special Cell office several times. They wanted to check their mobile details so both brothers left their phones in the office. Naquee went to retrieve the phones. They were both tired of the daily harassment and tension owing to these enquiries. 7th January: Naquee received a call saying that both occupants of the rented flat in Mumbai had returned and Naquee was needed for identifying them. 8th January: Naquee was taken to Mumbai on the 4.30 Rajdhani train. 9th January: They reached Mumbai. Naquee called in the evening and said that most of the work had been completed and that he would return tomorrow. In the night, at about 11:30, the Maharashtra ATS came to Naquee’s brother’s workshop and picked up his elder brother Rafi. When Naquee came to know of this, he called up the Speci-al Cell officer and asked why his brother was being picked up when it was known to the Special Cell that he was not involved in any criminal or terror activity. The Special Cell officer informed him that it was the ATS and not the Special Cell, which had picked up his brother. There was nothing they could do about it as the two agencies did not get along well. They asked him to come over to the house the Special Cell had rented in the ‘target area’.
Naquee then called up Nadeem, who used to live in the workshop to get an update about the situation in the workshop. Nadeem told him to come to hotel Sagar. Unknown to Naquee, the ATS had nabbed Nadeem and had laid a trap for Naquee through him. When Naquee reached the hotel, he too was nabbed. At about 1.30 in the morning, ATS returned to the workshop and picked up Razi bhai and a worker. 11th January: Razi and Rafi were released. 13th January: Rafi picked up by ATS again. 17th January: The Ahmad’s residence in Darbhanga (village Deora Bandauli) was visited by the Maharashtra ATS late at night. A motorcycle belonging to his elder brother was seized by the ATS saying that it was stolen. The elderly parents of the Ahmads are fear struck. Sections 419, 420 have been slapped on Naquee. Rafi has been released this evening. In effect this has been an illegal detention. 18th January: The press conference of 18th Jan. was addressed by Manisha Sethi (JTSA), Shabnam Hashmi (Anhad) and Taquee Ahmed (Naquee Ahmed’s brother).
According to the press statement, even today ATS Mumbai has landed at Taquee’s shop on Kalindi Kunj Road in New Delhi and is demanding to see him. Then 4 people from ATS including an ACP then landed up at ANHAD office where the press conference was just getting over. They interrogated Taquee for over an hour and then took him to Shaheen Bagh to pick up Naquee’s laptop. “This is a case where the competition between two investigative agencies – Special Cell of the Delhi Police and the Maharashtra ATS – has claimed more innocents. The fight against terror has been reduced to victimization, harassment of Muslims and violation of the due processes of law. Anti-terror agencies pick up and detain people at will, in this free for all race to prove their anti-terror credentials,” civil rights activists said. “We demand an immediate stop to this sort of terrorization of Muslim youth and their families. The process of investigation and questioning must be transparent and the due processes must be strictly adhered to. All those arrested be produced before a magistrate within 24 hours and illegal detentions and interrogations in such detention must be strictly punished,” they said.
- 13/7 Mumbai blasts: Naqi Ahmed being tortured in custody, alleges family member (Jan 20, 2012, IBN)
- Minorities Comm asks report from Maha on Muslim youth’s arrest (Jan 22, 2012, Deccan Herald)
- TMC wants Batla case reopened (Jan 21, 2012, Times of India)
- Relief sought for persons framed in blasts case (Jan 22, 2012, The Hindu)
Video shows BSF jawans thrashing youth near Bangladesh border (Jan 19, 2012, The Hindu)
A shocking video, of a suspected cattle rustler, stripped, bound and brutally beaten up allegedly by BSF jawans in the Raninagar police thana area near the Indo-Bangladesh border in West Bengal’s Murshidabad district has created uproar. The grainy video, telecast by a local channel here on Wednesday, shows graphic visuals of the youth – stripped of all clothing, and his arms wrapped and bound to a bamboo staff – writhing in pain on the ground as at least four personnel in BSF fatigues assault him. While some of them are holding on to the youth, the others are repeatedly striking him with lathis.
Soon after the screening of the visuals, Border Security Force authorities announced that eight personnel were suspended. However, the police said no official complaint had been lodged at the local station till Wednesday evening. “We have received information that three youths – two of them Bangladeshi nationals – were apprehended by the BSF jawans. Later in the day, one of the Bangladeshis was mercilessly beaten up,” said Kirity Roy, secretary of Masum, a Kolkata based non-governmental organisation opposing alleged atrocities committed by the BSF along India-Bangladesh border.
Mr. Roy said locals told him that the video had been shot by the BSF personnel themselves. According to some local youths, copies of the video, allegedly distributed by the BSF personnel, are in their possession. “All the personnel who were on duty at the Charmurasi border outpost have been suspended,” said Ravi Kumar Ponoth, Inspector-General of the South Bengal Frontier of the BSF. Even as there were reports that the incident occurred on Monday, the details of when it happened and the footage taken could not be officially ascertained yet. A BSF spokesperson said, “It cannot be clearly stated when the incident occurred, and the footage may well have been shot as far back as 15 days.”
Mr. Ponoth said: “We will inquire into the incident. We will go through the video and if any jawan of the BSF is found guilty, strict action will be taken against him.” However, he pointed out that BSF personnel were not permitted to carry their mobile phones during duty hours and it was unlikely they took the video. Sources said that following the BSF directive that guards manning the border be given non-lethal weapons, the personnel resorted to force to deter people from crossing the border illegally. Cattle smuggling across the border is a common crime villagers on both sides allegedly indulge in. The problem has engaged BSF authorities for some time now.
- FIR against five cops in custodial death case in Bihar (Jan 16, 2012, Hindustan Times)
- Prison diaries reveal a sordid tale of torture and humiliation (Jan 21, 2012, The Hindu)
- Activists protesting 1990 killings baton-charged (Jan 21, 2012, New Kerala)
- Centre, CBI asked to resolve differences on AFSPA powers (Jan 21, 2012, The Hindu)
Rights group slams Jamia for “harassing” RTI activist (Jan 22, 2012, The Hindu)
The Association for Protection of Civil Rights has criticised the Jamia Millia Islamia for sending a legal notice of defamation worth Rs.50 lakh to RTI activist Afroz Alam Sahil – who was instrumental in bringing into the public domain the post-mortem report of Batla House encounter – and termed the move as an attempt to harass him. In a statement, the secretary of Delhi Chapter of ACPR, Akhlak Ahmad, said: “As Afroz Alam Sahil is constantly questioning Jamia’s administration through RTI, so this is an open attempt to suppress the voice of dissent as well as freedom of speech.”
Mr. Ahmad said it is well known that over the last six months Mr. Sahil had been campaigning “to ensure democratic rights for students of Jamia Millia Islamia, where election of Students Union have not been allowed since 2006”. The ACPR office-bearer said there are many other issues too which have been raised by the RTI activist through his applications, campaigning letters, handbills and letters to professors and faculty members.
Recalling that Mr. Sahil had got the post-mortem report into the Batla House encounter through his RTI application, he said the activist had also raised issues pertaining to corruption, fellowships, hostel allotment, health services and security for women. “Sahil has contributed a lot through his RTI activism to expose irregularities and corruption in public institutions,” the ACPR office-bearer said.
The organisation has demanded that the Jamia administration withdraw its legal notice with immediate effect to ensure freedom of speech and to encourage its own outstanding student. “Instead of sending the legal notice, Jamia should clarify the issues raised by Sahil,” Mr. Ahmad said.
- ‘Save Constitutional Rights Movement’ launched by Muslim Law Board (Jan 19, 2012, Twocircles.net)
- Probe ordered into move to hack e-mail of Muslim leaders (Jan 16, 2012, IBN)
- Don’t spy on Muslims: CPM to Kerala govt (Jan 17, 2012, Times of India)
- Subramanian Swamy questioned in inflammatory article case (Jan 16, 2012, The Hindu)
NRHM scam: CBI books UP revenue board member (Jan 19, 2012, IBN)
A UP revenue board member and five others were on Thursday booked by the CBI in three new cases for allegedly fudging funds in NRHM projects estimated to be over Rs 250 crore as the agency carried out searches at 44 locations across the state and the national capital. Residential premises of revenue board member Pradeep Shukla and officials of public sector undertakings were searched during the operation which was spread across Lucknow, Moradabad, Varanasi, Muzafarnagar, Kanpur, Noida and Delhi.
Shukla, who was Principal Secretary Family Welfare in the state government during the tenure of former minister Babu Singh Kushwaha, has been named in all the three new cases registered by the agency in its probe of alleged irregularities in central funds meant for the National Rural Health Mission, CBI sources said. The CBI officials also reached the office of Chief Medical Officer, Allahabad to collect some documents, sources said.
The total cost of projects in which these three cases have been registered is over Rs 250 crore and mainly deal with the construction and upgradation works in hospitals across UP. Besides Shukla, the agency has named former DG Family Welfare S P Ram and General Manager UP Small Industries Corporation Abhay Kumar Bajpai in the new cases. Both are already in judicial custody.
Another former DG Family Welfare RR Bharti, Managing Director UP Processing and Construction Cooperative Federation (PAACFED) VK Chowdhary, Former Managing Director UP Project Corporation Devender Mohan (now retired) figure in new cases. The CBI has so far registered eight cases arising out of five preliminary inquiries initiated by it on the direction of Allahabad High Court and more cases are likely to be registered, they said.
- NRHM scam: Key accused commits suicide (Jan 22, 2012, Times of India)
- NRHM scam: CBI searches at 40 locations (Jan 19, 2012, The Hindu)
- Bhushan files PIL against ex-CJI Balakrishnan (Jan 20, 2012, IBN)
- EC seizes Rs. 42 crore cash in poll bound States (Jan 19, 2012, The Hindu)
Law Commission wants dowry law toned down (Jan 21, 2012, Times of India)
In what could raise the hackles of women’s rights activists, the Law Commission has recommended to the Centre that the strict law dealing with dowry offences be made compoundable – a move that will allow an accused to escape a jail term by paying a fine. The recommendation to alter the tough provisions of Section 498A of the Indian Penal Code comes in the backdrop of Supreme Court suggesting it may be time to re-examine the law in the context of its misuse by women to lodge false or exaggerated complaints against husbands and their relatives.
The relief to an accused will have to be overseen by the court which must be convinced that the offence can be compounded. But while the suggestion will be welcomed by anti-Section 498A campaigners, women’s organizations are likely to point to the continued prevalence of the social evil of dowry and helpless position of women in their marital homes. “The pros and cons have been considered after extensive deliberations and a conclusion has been reached that Section 498A should be made compoundable as suggested by the Supreme Court,” the commission said. The permission of the court concerned would be a safeguard to dispel apprehensions that the wife could be coerced into a compromise with her in-laws.
If the Law Commission’s views pass muster, a husband and his relatives facing trial under Section 498A could pay fine and compensation to the complainant. Parliament had inserted Section 498A in IPC with effect from December 25, 1983 with a view to punishing husbands and their relatives who harass or torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry. At present, anyone found guilty under Section 498A can be punished with a jail term up to three years and also be asked to pay fine. Bail is usually not easy to avail for a dowry-related offence. Other offences the commission feels can be compounded include causing of simple hurt by use of dangerous weapons (Section 324), which too attracts a maximum punishment of three years jail term, and those found guilty of the offence of rioting (Section 147 providing for maximum two-year jail term).
While Section 498A is a tangible deterrent against cruelty to a woman in her matrimonial home, the courts, especially the Supreme Court, have expressed concern about its abuse after coming across several cases where women lodged false complaints to settle scores leading to arrest and harassment of husband and his relatives. The commission examined the issue from this aspect and its chairman Justice P V Reddi has sent a report to the government recommending that “Section 498A should be made compoundable with the permission of the court”. This means that although the threat of arrest looming over a husband and his relatives named in the wife’s 498A complaint may not ease, the accused can plead before the court for compounding of the offence by agreeing to payment of fine.
“The other aspects relating to Section 498A – whether it should be made bailable and what steps are to be taken to minimize the alleged misuse and to facilitate reconciliation – will be the subject matter of a separate report which is under preparation,” said the commission’s report submitted to law minister Salman Khurshid. The commission also recommended that offences under Section 324 (voluntarily causing hurt by dangerous weapons) should be made compoundable only with the permission of the court. At present, the offence is punishable with a maximum sentence of three years imprisonment. But the commission said the act of causing grievous hurt by use of dangerous weapons under Section 326 should not be made compoundable.
- Law Commission for making honour killings non-bailable offence (Jan 20, 2012, Indian Express)
- Women achievers address problem of falling sex ratio (Jan 12, 2012, Hindustan Times)
- Sexual harassment victim comes knocking on Antony’s door (Jan 11, 2012, The Hindu)
- More women became crime targets in 2011 (Jan 11, 2012, Hindustan Times)
Orissa Dalit gangrape: Charged with sheltering accused, agriculture minister resigns (Jan 19, 2012, Indian Express)
Controversial Orissa agriculture minister Pradip Maharathi, who was embroiled in the alleged gangrape of a Dalit girl from Puri, resigned today on moral grounds following increasing pressure from Opposition parties and women’s organisations here. Maharathi, who became minister for the first time in May last year, has hung like an albatross around chief minister Naveen Patnaik’s neck over allegations that he sheltered the rape accused. “I resigned to save my party and the image of my chief minister… like Lal Bahadur Shastri resigned after the rail mishap,” Maharathi told the ledia after putting in his papers this morning.
Maharathi’s resignation was an inevitability as the issue had heated up just ahead of next month’s panchayat polls that would determine where Patnaik’s political popularity stands after 12 years at the helm. The 18-year-old Dalit girl of Arjunagoda village in Pipili block of Puri district was allegedly gangraped by some local youths on November 28 last year. After the gangrape, the assailants allegedly tried to strangulate her which left the girl in a state of coma. The girl is still in coma and admitted in the intensive care unit of SCB Medical College and Hospital, Cuttack. Doctors from Bangalore’s National Institute of Mental Health and Neurosciences are also treating her.
Naveen had handed the case to the Criminal Investigation Department, Crime Branch of the Orissa police and three of the four accused have been arrested. He also ordered a parallel judicial probe by a retired High Court judge, but that has not calmed the uproar with students, Opposition parties and women’s organisation demanding a CBI probe and Maharathi’s resignation. The case had got murkier with the brother of the victim alleging that Maharathi was sheltering the accused. Naveen Patnaik was left embarrassed after a group of students from the Jawaharlal Nehru University staged a demonstration in front of his Aurangzeb Road residence in New Delhi on January 16. In Bhubaneswar too, Opposition political parties, civil society organisations, human rights activists, lawyers, journalists and writers took out a huge rally under the banner of Odisha Gana Samaja and demanded a CBI probe into the incident.
Two days ago, former Union coal secretary and 1966-batch IAS officer Prasanna Kumar Mishra in an open letter to Naveen Patnaik had demanded the inspector of Pipili police station be dismissed under Article 311(2) (b) as he did not lodge an FIR despite the pleas of the victim’s family. The condition of the alleged gangrape victim seems to be improving with the girl spontaneously opening her eyes and moving her chin. The Orissa High Court which is hearing a PIL on the issue, was told by the SCB Medical College and Hospital authorities that the girl is now trying to open her mouth and all her vital organs are stable.
- Dalit rape: Polygraph test on prime accused (Jan 21, 2012, Times of India)
- 3 convicted for Dalit minor’s rape (Jan 10, 2012, Indian Express)
- Dalit sugarcane worker burnt to death, one held (Jan 11, 2012, The Hindu)
- Odisha CM orders judicial probe into rape of Dalit girl (Jan 13, 2012, Indian Express)
Opinions and Editorials
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.
- The Lokayukta deception – Editorial (Jan 21, 2012, The Hindu)
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.
- Secular Thoughts – By K.N. Panikkar (Jan 14, 2012, Frontline)
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.
- A Black Ledger – By Debarshi Dasgupta (Jan 30, 2012, Outlook)
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
- ‘I Don’t See Any Need To Add To Exemptions In RTI’ – Satyananda Mishra tells Anuradha Raman (Jan 23, 2012, Outlook)
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.
- Dalit and the dominoes – By Revati Laul (Jan 28, 2012, Tehelka)
- ‘Are All Hands, Lotuses, Cycles Created Using Govt Funds?’ – S.Y. Quraishi with Anuradha Raman (Jan 30, 2012, Outlook)
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.
- Pamphlet targets all political parties over Lokpal, CBI – By Tehelka.com Bureau (Jan 20, 2012, Tehelka)
- ‘Whole Bill diluted’ – Prashant Bhushan tells V. Venkatesan (Jan 14, 2012, Frontline)