Meaningless declaration for now

The Election Commission should be given the responsibility of public oversight and scrutiny of statements filed by candidates. A special nodal cell should be attached to the EC for this purpose. Accountability will then happen.

The enforcement of political standards of transparency and accountability through the requirements of declaration is a means of reminding political functionaries of the rules and obligations they must follow in the course of fulfilling their official duties. There are provisions for disclosures which require the aspirants for elective positions and also the elected functionaries, to provide a benchmark against which later disclosure can be compared to assess whether there has been unexplained enrichment that must be accounted for.

India does not have a legal framework which reinforces the requirement of declaration by candidates regarding their legal, particularly criminal and financial details. There is no ombudsman uniquely poised to review and monitor the compliance of instructions evolved through codes of conduct or rules. The institution of Lokpal that could have performed this function effectively is still a distant dream.

In December 1999, the Association for Democratic Reforms filed a Public Interest Litigation in the Delhi High Court asking for declaration of candidates’ background. The Government, curiously disinterested, appealed before the Supreme Court against such a requirement. However, the Supreme Court passed a historic judgement in May, 2002, and directed the Election Commission to exercise its powers under Article 324 of the Constitution and seek information from the candidates. The Government made its opposition clear by unanimously passing an Act rejecting the court’s orders regarding declaration of criminal antecedents, educational qualifications, assets and liabilities of contesting candidates.

The Supreme Court in its judgement dated March 13, 2003, declared the amended Act as illegal, null and void and restored the May 2, 2002, judgement, declaring that the verdict had attained �?finality’.

The Election Commission of India vide its March 22, 2003, order instructed candidates to provide information about their criminal background, assets, liabilities and educational qualifications through compulsory affidavit to be filed with nomination paper. It also said that the information be shared in the public domain. However, such declarations have remained on paper as there is no framework for scrutinising these details and follow-up action.

Meanwhile, even the settled status regarding EC’s powers under Section 10A of the Representation of People Act, 1951, is being questioned by the Union Government. A three-judge Bench of the Supreme Court in 1999 had confirmed the EC’s powers to disqualify an elected representative in case of wrong submission of expenditure incurred in election. The Government’s view is that the Election Commission has no powers to disqualify a candidate under Section 10A of the RPA for his failure to submit a true rendering of his poll expenditure.

It is imperative that the EC be recognised as the monitoring body for the purpose and have a clear mandate, human resources and punitive powers to evolve an internal system to oversee the validity of the declarations supported by an affidavit by the public functionaries. It should also have powers to check the accuracy of the declarations with an active participation of the Income Tax authorities and police.

In case of elected Members of the Lok Sabha and the Rajya Sabha, the provision for declaration of assets also exists. Rule 3 of the Members of Rajya Sabha (Declaration of Assets and Liabilities) Rule, 2004, requires the Members to provide information on assets and liabilities within 90 days from the date of taking oath. Similar provision exists in the Lok Sabha rules.

But these provisions have remained on paper due to ineffective monitoring and absence of any punitive provisions against non-complying members. The present rules only provide for complaints. The provision under Section 75(A)(5) of the RPA, 1951, allows the Lok Sabha Speaker to direct any willful contravention of the Members of Lok Sabha (Declaration of Assets and Liabilities), Rules, 2004 by an elected member, to be dealt with in the same manner as a breach of privilege of the House.

Public Interest Foundation, a non-Government organisation, through an RTI application, has learned that as on October 16, 2012, eight Lok Sabha and 19 Rajya Sabha Members had not furnished their assets and liabilities within the prescribed period of 90 days. Nearly all the national parties are guilty of non-compliance.

Reportedly, it’s in the absence of a complaint’ that the Rajya Sabha Chairman and the Speaker of the Lok Sabha did not refer the matter to the Committee on Ethics for conducting an inquiry.

Effective monitoring by the Election Commission to assist the Lok Sabha and the Rajya Sabha is the answer. The EC should be given the responsibility of public oversight and scrutiny of statements. A special nodal cell should be attached to the EC for this purpose.

By Nripendra Misra, Director, Public Interest Foundation

(This article was published in The Daily Pioneer on 21st May, 2013)

Common Minimum Programme for all Political Parties

Dear friends,

Reference : Soliciting esteemed support on key agenda for political parties in General Elections 2014

General elections 2014 are round the corner, and the political parties will soon get busy with their promises. Public Interest Foundation (PIF) has listed issues of prime public concern which in our opinion, must be flagged for immediate ownership and action by political parties.

ABOUT THE FOUNDATIONPublic Interest Foundation (PIF), a NGO, working towards the advocacy of good governance practices since 2008. The Foundation is currently chaired by Mr. Naresh Chandra, former Ambassador to the United States and ex-Cabinet Secretary, Government of India. The other members of the Governing Council of PIF include Dr. Bimal Jalan (Economist and former Governor of Reserve Bank of India), Mr. B. G. Verghese (Columnist, Author, currently visiting professor at the Centre for Policy Research), Mr. Harshvardhan Neotia and Mr. Suresh Neotia (Industrialists), Ms. Shailaja Chandra (Former Chief Secretary, Government of NCT of Delhi), and Mr. Tarun Das (Former Chief Mentor, Confederation of Indian Industry).

Given the disjointed and populist nature of the present polity, only a strong case made out through widely disseminated and supported public opinion on specific agenda can be counted upon to make any dent on the present reluctant pace of peoples’ oriented reforms adoption by political parties. And thus the role of collective voice of common citizens/CSOs/NGOs is of pivotal importance in being able to put together such an advocacy campaign.

The following Common Minimum Programme in our view should form an essential part of the manifesto of all political parties towards the 2014 General Elections. Our listing of issues in the draft has also been limited to restrict to only those that can be tracked in terms of performance after elections. Thus the issues covered, may not be exhaustive but are basically very fundamental agendas that every common man should have a right-based claim on.

PIF has shared the same with 45 registered state parties and registered national political parties insisting on their commitment by incorporating the issues raised in their party manifesto towards the General Elections due for 2014.

PIF solicits your support towards this agenda on Common Minimum Programme for political parties.

Nripendra Misra,
Director, Public Interest Foundation

BROADER AGENDA KEY ISSUES BACKGROUND
A. INCLUSIVE GROWTH i. Provide drinking water in each village As against the target of 7,98,967 habitations* for coverage under National Rural Drinking Water Programme (NRDWP) during the Eleventh Plan, the coverage up to 31 March 2012 was 6,65,034 (83 per cent). (Source 12th Five Year Plan, Planning Commission)(*The rural habitation is often a unit of differentiation used to define a community based on caste and creed and also by members who by and large share common language and cultural characteristics.)
ii. Self-sufficiency in power(Minimum of 8 hours of power supply to rural areas to be ensured)

 

The Eleventh Plan estimated a terminal year (2011–12) requirement of electricity generation from utilities at 1,038 billion units (BU), implying growth rate of 9.1 per cent (CAGR) per annum over the gross generation level of 670.65 BU in 2006–07 (the terminal year of the Tenth Plan). As against the above, the actual generation from utilities in 2011–12 was 876.88 BU, a shortfall of about 16 per cent, implying an annual growth rate of only 5.51 per cent for power from the utilities. This has resulted in a demand–supply gap. On 31 March 2012, it was estimated that the peak deficit gap was 11.1 per cent and energy deficit was 8.5 per cent.
iii. 100% enrolment of children in elementary schools Average enrolment rate is 96% for 2011-12. But average retention rate at primary level is stagnant at 74-76% since 2009
iv. Health insurance for all, upto a defined amount Rashtriya Swasthya Bima Yojana or RSBY launched in 2008 is a very innovative programme. The objective of RSBY is to provide protection to BPL households from financial liabilities arising out of health shocks that involve hospitalization. Beneficiaries under RSBY are entitled to hospitalization coverage up to Rs. 30,000/- for most of the diseases that require hospitalization. Government has even fixed the package rates for the hospitals for a large number of interventions. Pre-existing conditions are covered from day one and there is no age limit. Coverage extends to five members of the family which includes the head of household, spouse and up to three dependents. Beneficiaries need to pay only Rs. 30/- as registration fee while Central and State Government pays the premium to the insurer selected by the State Government on the basis of a competitive bidding.A beneficiary of RSBY gets cashless benefit in any of the empanelled hospitals. He/ she only needs to carry his/ her smart card and provide verification through his/ her finger print. For participating providers it is a paperless scheme as they do not need to send all the papers related to treatment to the insurer. They send online claims to the insurer and get paid electronically.
v. Women empowerment:

  • Education specific special provisions for girl child (eg. computer, cycle, scholarship,etc.)
  • Political empowerment of women (eg. Reservation in elected bodies)
  • Protection of women against major social problems (eg. taking a firm stand against retrograde steps like khap panchayat, valentine’s day celebration)
Policy measures such as the ones suggested below maybe emphasised upon to promote women empowerment in various aspects of lie:a) Name of mother compulsory in admission of students in school
b) 50% reservation of women in panchayat, zila panchayat and local elections
c) Special scheme for villages who have all women administrative body
d) No Stamp duty on properties bought in name of woman
e) For conversion of lease hold property into free hold property less stamp duty to be charged in case the property is getting registered in the name of the women of the household. This is already done by the Delhi Development Authority (DDA) where duty at the rate of 6% in case of men and 4 % in case of women has to be paid to or Land and Development Office (L&DO)
f) Passing of Women’s Reservation Bill requiring reservation of one-third seats in Parliament for women candidates
vi. Growth focus on employment generation especially for age group of 18 to 35 According to Planning Commission Report on Entrepreneurship of the year 2012, “India needs to create 10 – 15 million jobs per year.”
B. DEVELOPMENT / GROWTH i. Transparent, open & discretion free process for allocation of resources under the state
ii. Effective measures to curb the role of black money in Indian economy
C. PUBLIC SERVICES DELIVERY i. Ensure enforcement & compliance to Right to Public Services & Grievance redressal So far 17 states have passed such an Act but the services notified are very restricted
ii. Electronic delivery of services The Electronic Delivery of Services Bill, 2011 was introduced in the Lok Sabha on December 27, 2011 by the Minister of HRD and Information Technology. The Bill was referred to the Standing Committee on Information Technology on January 5, 2012, which gave its report in August 2012.
iii. Minimum standard of civic services to be declared & maintained
D. ETHICS IN PUBLIC LIFE i. Lokpal for senior political functionaries & top most civil servants The Lokpal and Lokayuktas Bill, 2011, introduced on December 22, 2011, was passed by the Lok Sabha on December 27, 2011.  The Bill was taken up for consideration and passing in the Rajya Sabha, which referred it to a Select Committee (Chairperson: Shri Satyavrat Chaturvedi).  The Committee submitted its report in November 2012.
ii. Lokayukta in each state for senior political functionaries & civil servants Till now only 19 states have the enacted the Lokayukta Act
iii. Institutional framework for administering civil servants
iv. Transparent institutional framework for appointment to constitutional/ statutory authorities Collegium  comprising of representation from ruling party, opposition party and judiciary to be formed for all such appointments
v. Concrete steps towards police reforms Recommendations towards this have come in the form  National Police Commission Model Bill, 1980, recommendations have also been made by the National Human Rights Commission (NHRC), the Law Commission, the Ribeiro Committee, the Padmanabhaiah Committee, the Malimath Committee, and the Soli Sorabjee Committee, but no concrete steps towards its implementation.Supreme Court of India in 2006 had asked the state to choose any of the models on Security Commission suggested by National Human Rights Commission (NHRC), Ribeiro Committee and the Soli Sorabjee Committee, all of which recommended it to be a multi-member body with sufficient representation from civil society and judiciary.

Six years after ushering in police reforms, the Supreme Court on April 11, 2013 took the first step for its implementation in “letter and spirit” and asked states to furnish within a week status of the Security Commissions which were to be set up to insulate the police from political interference.

E. POLITICAL PARTY, ELECTORAL & LEGISLATIVE REFORMS i. Time bound fast tracking of trial  cases against elected public functionaries convicted of serious/heinous crimes Time-bound fast tracking of all cases against elected public functionaries convicted of serious/heinous crimes and punishable with an imprisonment of five years or more, does not require any legislative amendment. It only requires an administrative order by Supreme Court in consultation with the Law Ministry. There are Public Interest Litigations before the Supreme Court of India on this issue.
ii. Politicians convicted by court to be denied tickets for contesting elections The political parties need to commit loud & clear
iii. Ensuring decriminalization of politics through appropriate changes in election laws Concrete recommendations towards this have been made by a number of highly valued Committees like  the Law Commission’s 170th Report on Electoral Reforms of 1999; recommendations from the National Commission to Review the Working of the Constitution of 2002; Election Commission’s Recommendations on the Electoral reforms of 2004; Justice Verma Committee Report of 2012
iv. Ensured submission of annual asset statement by all MPs & MLAs & putting all such information in public domain Lok Sabha & Rajya Sabha laid down rules for asset declaration stipulates the one-time submission of asset details of MPs within 90 days, but the annual compliance to such a rule for asset declaration is not a part of these rules. Moreover, these one-time declaration of assets of MPs are not put in public domain as they are considered confidential documents that can be shared only  with the approval of the Speaker/Chairperson of the House
v. ECI to be empowered on   registration and de-registration of political parties
vi. Making Parliament functional Ensuring uninterrupted functioning of the Parliament for a fixed minimum of days to make sure that the national interest is not jeopardised
F. LAND ACQUISITION & LAND REFORMS a) Concrete policy measures to ensure that besides compensation, a long-term source of livelihood generation (through an employment or appropriate equity participation) is ensured to the owner of the land (especially in case they are farmers).
b) Maintaining the balance to ensure that industrial and infrastructural growth also gets their due focus.

Measures to Counter the Recalcitrance of Violence against Women

The ghastliness of the assault on a young woman in the capital city on 16 December 2012 has unfolded the macabre reality of our society. Public Interest Foundation (PIF), an NGO engaging in advocacy for adoption of good governance practices analyzed the potential of existing legislations to fight discriminatory stereotypes reflecting the historically thriving unequal power relations between men and women. The incident, indubitably, disturbs our consciousness signalling the need to redefine the status of women in the existing laws requiring gender-neutral and gender-specific provisions. The Foundation submitted a memorandum to the Justice Verma Committee requesting its thoughtful attention toward suggestions illuminating best practices in legislations on violence against women and possible amendments to the Criminal Law (Amendment) Bill, 2012.

In this article, PIF cites the most crucial and critical suggestions to the Criminal Law Bill,2012 infused with the ideas from the foundational principles inspired by UN Handbook for Legislation on Violence against Women for a cathartic gender-sensitive approach in Indian law.

There is an urgent need for a national action plan or strategy on violence against women, which should contain a set of activities with benchmarks and indicators to ensure that coordinated approach to the implementation of the legislation acknowledges that violence against women is a form of discrimination and a violation of women’s human rights. Any custom, tradition or religious contemplation should not be allowed to rescind the legislation by justifying violence against women.

The proposed amendments in the Criminal Law Bill, 2012, especially under Section 375 broadens the definition of sexual assault and adopts a gender neutral understanding, which potentially thwarts the gender-based assumption of sexuality. Even so, with respect to the cases of sexual assault under Section 375, the perpetrators should be gender-specific even as the survivors remain gender neutral to ensure that the gender neutrality does not prove to be convenient to the patriarchal values embedded in the judicial and administrative frameworks. There exists compelling grounds for the inclusion of marital rape in Section 375 of the IPC thus repealing the exception clause appended under Section 375 as it could mean the wife to have given an irrevocable consent to sexual relationship with the husband. If marital rape is included in the proposed Bill it should be reflected in Section 376A of the Bill, which should not be restricted to the status of separation and thepunishment and should comply with the punishment suggested under Section 376 respecting clause 376(2)(e). The age of consent is required to be reduced to 16 from 18 years under Section 375 of the Bill to protect minors from criminalization of consensual sex. In this regard, the use of the term consent’ in the Bill is critical and therefore, a statutory definition of this term for clarity and elucidation is necessitated to guarantee legal harmony. In order to maintain an implicit consistency in the punitive actions proposed in the Bill, the term of punishment for crime under Section 376B to be uniform with Section 376. Significant to ascertaining enhancement in punitive actions is the replacement of term of punishments under Sections 376B, 376C, 376D where stated to be “not be less than five years” with “not be less than seven years.” The adoption of the new Section 376E recommended by the Law Commission by the Bill with the replacement of words “incites a young person” with “incites any person or child” under Sections 376(E)(2) and 376(E)(3) would certainly strengthen the expanding legal understanding of violence against women. The replacing of words “assault or criminal force to woman with intent to outrage her modesty” in Section 354 with “assault or criminal force to violate bodily integrity of woman” is to be accompanied with the adoption of amendment suggested by the Law Commission on Section 509 and further replace “to insult the modesty of a woman” in Section 509 with “to violate the bodily integrity of woman.” The incorporation of gender neutrality in the aforementioned sections could prove fatal in our culture conceptualized by a patriarchal order. Repealing of Section 377 in the backdrop of the July 2009 verdict of the Delhi High Court, which read down the section and thus decriminalizing adult consensual sex between same sex is ineluctable in the present day. Further, the passing of Protection of Children against Sexual Offences Act, 2012 by the Parliament has made the existence of Section 377 redundant. The recommendations of the Law Commission on the Criminal Procedure Code should be adopted by the Bill. Effective use of provision in the Criminal Procedure Code to demand good conduct from anti-social elements and proceeding against persons indulging in eve teasing , verbal lewd remarks or gestures to annoy or harass women could be of great significance. For this purpose a new section, analogous to Section 107 Cr.P.C could be inserted to the authorised magistrates to bind down offences on personal bond with or without sureties for a period of six months. In the face of escalating attacks on women, Criminal Procedure Code should consider allowing a victim of sexual assault to register an FIR in any police station the victim prefers to go.

There lies a strong case for death penalty as punishment in cases of grave injuries caused by sexual assaults rendering irreparable and permanent bodily damages on the victim. In respect of such offences like rape, attempt to rape causing grievous hurt or throwing acid on a woman, an accused being juvenile aged between 1 and 18 years should be tried and punished as an adult and not as a juvenile. The Juvenile Justice (Care and Protection of Children) Act and the subjective knowledge of reformation understood in the Act should be in congruity with the grievousness of the crime committed by the juvenile. This demands specifying of juvenile offences by the Juvenile Justice Act ensuring that the Act does not protect those juveniles accused of committing crimes of heinous and adult nature.

Imperative to the review of proposed amendments in the Criminal Law Bill, 2012 and the Law Commission of India report on Review of Rape Laws, 2000 has been the postulation to explicate fundamental minimum features furnishing the suggestion for adoption in the Bill. These grounding principles have been designed in sync with the thoughts of the UN handbook which states that the definition of violence against women in legislation should encompass all forms of violence- domestic violence, sexual violence including sexual assaults and sexual harassment; harmful practices like early marriage, forced marriage, honour crimes, acid attacks, dowry crimes, forced pregnancy and trying women for sorcery; feminicide or femicide; sexual slavery and trafficking; violence against women in community and conflict zones; violence against women condoned by the State including violence in police custody and those committed by security forces, and the like.

A proposed legislation on the subject is to provide for a deadline regarding the length of time that may pass between its adoption and entry into force. The legislation should provide for an overarching effect of the proposed bill on provisions contained in other areas of law, such as family and divorce law, property law, housing rules and regulations, social security law, employment law and juvenile law. Thus, not contradicting the legislation adopted, so as to ensure a consistent legal framework that promotes women’s human rights and gender equality and the elimination of violence against women.

It should define sexual assault as a violation of bodily integrity and sexual autonomy replacing existing offences of rape with a broad offence of sexual assault graded based on harm. The legislation should specifically criminalize sexual assault in a relationship by providing that sexual assault provisions apply “irrespective of the nature of the relationship” between the perpetrator and the complainant or stating that “no marriage or other relationship shall constitute a defence to a charge of sexual assault under the legislation.”

Legislation should provide that police officers should respond promptly to every request for assistance and protection in cases of violence against women including domestic violence, even when the person who reports such violence is not the complainant/survivor; and upon receiving a complaint, conduct a coordinated risk assessment of the crime scene and respond accordingly in a language understood by the complainant/survivor, including by interviewing the parties and witnesses, including children, in separate rooms to ensure there is an opportunity to speak freely; recording the complaint in detail; advising the complainant/survivor of her rights; filling out and filing an official report on the complaint; and provide protection to the reporter of violence.

Legislation should establish that responsibility for prosecuting violence against women lies with prosecution authorities and not with complainants/survivors of violence, regardless of the level or type of injury; require that complainants/survivors, at all relevant stages of the legal process, be promptly and adequately informed, in a language they understand their rights, the details of relevant legal proceedings, available services, support mechanisms and protective measures, opportunities for obtaining restitution and compensation through the legal system; require that cases of sexual assault ought to continue in the unfortunate event of demise of the victim; and require that a complaint with respect to violence against women cannot be withdrawn by the survivor or the reporter of the crime at any stage of legal proceeding. The Armed Forces (Special Powers) Act (AFSPA) should not be a shield to protect military personnel who are accused of crimes including murders and crimes against women and children. It should also explicitly prohibit mediation in all cases of violence against women, both before and during legal proceedings.

The legislation should mandate the allocation of budget for creating specialized courts guaranteeing timely and efficient handling of cases of violence against women; strengthening of specialized police units and specialized prosecutor units on violence against women; creating a general obligation of the State to provide funding for integrated support services to assist survivors of violence including financial assistance to survivors, one national women’s phone hotline for urgent assistance, access to healthcare, crisis and trauma centre; and allocating a specific budget for survivor-centred programmes and capacity-building training programmes.
The Foundation believes that a comprehensive legislation while ensuring expeditious legal proceedings and encouraging effective sanctions against non-compliance by relevant authorities should provide the groundwork for a holistic response to violence against women. Irrefutably, the Foundation also deems that the framework for legislation on the subject should serve as an instrument to provide justice, support and protection to victims and hold perpetrators accountable.

By Nripendra Misra, Director, PIF & Annapoorna Karthika, Research Associate, PIF

Report Card on the Right to Education Act, 2009 in Select Districts of Uttar Pradesh

The deadline toward the implementation of mandatory norms of the Right of Children to Free and Compulsory Education Act, 2009 (RTE Act) concluded on 31 March 2013 with the Ministry of Human Resource Development declining the request of some states to extend the deadline. The Act, which is a milestone in the history of elementary education in India, reflects a paradigm shift to a rights based approach towards education. Even so, reports suggest that hundreds of schools in the country are yet to implement the fundamental requirements of the Act.

The RTE Act prescribes basic norms and standards for all schools to comply and cater to the educational and overall needs of all children in schools irrespective of their social and economic backgrounds, gender, abilities or competencies. The Public Interest Foundation undertook a study to determine the level of involvement of all stakeholders and an update on the present status of implementation of the Act in schools in three districts of Uttar Pradesh (UP), namely, Bareilly, Bahraich and Mau on the basis of the total number of Out-of-School-Children (OoSC) falling in the eligibility age group, from the Annual Status of Education Report (ASER) 2010.

The stakeholders who participated in the study consist of teachers, head masters, parents, students/ children, school management committee (SMC) members, and representatives at the Panchayati Raj Institutions (PRI) from all three districts. Six schools from five blocks in each district were proportionately drawn from both rural and urban areas. The data was collected through interviews of students, teachers, SMC members and other stakeholders; observations drawn from school visits; and focused group discussions held with parents of enrolled students.

A key observation of the study states that majority of parents and SMC members view the RTE Act as a catalyst which facilitates the availability of schools in proximity to children belonging to weaker sections and disadvantaged groups. Even so, this viewpoint accelerates the want of desire in emphasising the quality of education in these common schools. The collective conscious in the public sphere has been predominantly captured in the critical Section 12 of the Act, which demands recognized schools to reserve 25 per cent of their seats for children from less-privileged backgrounds. This linear narrative potentially subverts the discerning endeavour to constantly improve the quality and standard of education, especially at the elementary level in India.
The field study noted that 25 per cent reservation norm in private schools for weaker sections and disadvantaged groups residing in respective districts has seemingly been ignored from being enforced. Although, all three districts have neighbourhood schools (both primary and upper primary schools (UPS)) there is discrepancy in terms of prescribed distance. The concept of ‘neighbourhood schools’ is in nonexistence in few panchayats as primary schools are not located within a distance of 1 kilometre from the community as observed in Mau and Bareilly. There is a need to allocate additional funds to ensure implementation of multifarious aspects of the Act.

There is a swelling demand to thrust attention on infrastructure expansion in all the districts under consideration. The survey indicates that schools in the districts are making progress in enabling infrastructure growth with all weather-pucca buildings, boundary walls, provision for kitchens to cook and serve Mid-Day-Meal (MDM), HM’s office rooms, libraries, playground and the like. Even so, the concerns are raised when the quality of present state of infrastructure in all three districts is assessed against the satisfactory requirements under the RTE Act. Some of the decisive issues in this regard include multiple classes being held in one classroom, lack of access to sanitation facilities and regular potable drinking water in schools. These deficiencies could adversely implicate the success of the RTE Act and most importantly, could prove fractious to the value of learning environment.
SMCs have been formed in all schools. They are the primary arrangement to efficaciously monitor the advancement in the implementation of the Act. Even as they were understood to be aware of their roles and responsibilities toward the school, there has been some serious scepticism with respect to their proficiency in the monitoring of the RTE Act. It has been observed that sensitization towards the creation of School Development Plans (SDPs) is still deficient, demanding the need for training and awareness to be provided to the parent community, especially on the holistic benefits of education.

Local authorities have been undertaking activities such as maintaining records of all children (who had dropped-out or never enrolled, children who belonged to the weaker sections, and children with special needs (CwSN)), participating in meetings of SMCs. Even so, these authorities are not absolutely active in their participation in school-mapping, child-mapping, holding awareness activities for sensitizing the parental community and collaborating with school and SMCs, particularly in Mau district.
The admission procedures in most schools have been found to be transparent and in adherence to the State norms. But there has not been any publication of any school records, admission registers or enrolments on any public portals by any of the stakeholders. Adequate funds have been provided by State government under Sarva Shiksha Abhigyan (SSA) to most of the schools as per their needs and requirements. Provisions of Teacher Learning Material (TLM), free textbooks, uniform, scholarships, equipment and supplies for children with special needs (CwSN) etc. have been made available to a credible degree. Noticeable in most schools of the three districts is that over-aged children, those admitted late, drop outs or never enrolled children and CwSN have not been integrated into the common classroom. Special trainings for mainstreaming of OoSC and ageappropriate admission still demand specific attention. This proves to be a disturbing factor to potent inclusive education system that the Act is expected to achieve. Adequate number of teachers remains a concern in almost all schools at both primary and UP levels, especially for specific subjects. All teachers have been observed to have minimum eligibility qualification, attend trainings organized by District Institute for Education and Training (DIET), and are recruited as per rule. In the district of Bareilly, the SMC respondents informed that the teachers take private tutorials.

The study extensively reflects on the issues that continue to create impediments to the qualitative process of learning assured in the RTE Act. The issues pertaining to enrolment, access, school infrastructure and other services such as quality teachers, management and monitoring system exist in the state educational system require in depth assessment. In addition, it is relevant to bridge the gap between the rural and urban areas particularly in maintenance of records, appointment of teaching staff, infrastructural development and challenges to enrolling of children and reducing dropout rates. With the central government refusing to extend the deadlines, the future of the implementation of the Act in the country lingers in obscurity.

By Nripendra Misra, Director, PIF & Annapoorna Karthika, Research Associate, PIF.

This article was published in Hindustan Times on 3 June 2013.

Empower Election Commission to regulate print and electronic media on opinion and exit polls

The notification of the Election Commission of India (ECI) in relation to the general elections to Legislative Assembly of Karnataka on the matter of opinion and exit polls has once again ignited the debate on the subject of electoral reforms casting light on the need for potential steps ahead of forthcoming general elections in 2014. The notification by the ECI on the 11th of April, 2013 prohibits the publication or broadcast or dissemination in any form the results of any exit polls during the period of Assembly elections in the State. Further, in accordance with Section 126 (1) (b) of the Representation of People Act (RPA), 1951, displaying of “any election matter including results of any opinion polls or any other poll survey in any electronic media” would be prohibited during the period of 48 hours before the end of polling on 5th of May, 2013.

An amendment to Section 126 of the RPA, 1951 in 2009 did squelch the objections to its inability to prohibit exit polls with the insertion of Section 126A, which restricted the publishing, publicising or any form of dissemination of exit polls and held the violation as a punishable offence with an “imprisonment for a term which may extend to two years of with fine or with both”. Evidently, the amendment does not address the subject of opinion polls and it is left to the interpretation of Section 126 under the RPA, 1951. Under Section 126 (1) (b) of the RPA, 1951, the “display to the public any election matter by means of cinematograph, television or any other similar apparatus” is prohibited during the period of 48 hours ending with the hour fixed for conclusion of polls. This Section clearly does not restrict publication of opinion polls even on the day of election thus violating the fairness in the conduct of elections. Although the Election Commission appended in its circulated notification an advisory note to newspapers stating that they are “not expected to indulge in unhealthy election campaigns or exaggerate reports about any candidate or party or incident during the elections”, the dearth of legal sanctity to the power of the Election Commission to restrict the practice proves pejorative to the multifaceted spirit of mass media. The legal battle on the subject has witnessed two striking rulings of the Supreme Court of India (SC). In 1999, a Constitutional Bench of the SC compelled then ECI to withdraw its guidelines banning the publication of opinion and exit polls. The ECI issued the guidelines under Article 324 of the Constitution, which provided the Commission the power of “superintendence, direction and control”, but the order was observed to be “devoid of merit”. Subsequently, in January 2009, the Election Commission had approached the SC seeking clarification on the right of the ECI to regulate opinion and exit polls. The bench headed by then Chief Justice K G Balakrishnan acknowledged ECI’s freedom to frame guidelines to regulate publication of exit polls. In this regard, the guideline issued toward Lok Sabha elections of 2009 by the Election Commission restricted the publishing, publicising and dissemination of any opinion or exit poll conducted any time by print, electronic or any other media during the period of 48 hours ending with ending with the hour fixed for conclusion of polls. Even as the ECI enjoys the power to frame the rules as and when deemed necessary, the want of legal prowess on the subject impedes plausible punitive action on any violation. Significant to this effect is the germane factor that such a guideline depends on the willingness of each Election Commission from time to time.

In the age of swelling utility of media technologies and its ensuing challenges, the import to assent legal solidity to the proposed reform is imperative to the arduous process of elections in the world’s largest democracy. The Election Commission in its recommendation on reforms toward better management of elections had stated the need for legal provision to restrict the publishing of results of opinion polls through print media. With escalating reports and consequent debates on publication on paid news there is an urgent need to draw the legal arc to contain any exploitation of print media adversely affecting the process of election. In similar fashion, the potential of opinion polls to influence public dialogue and thrust a sway over undecided electorate demands immediate attention to the reform proposal of the Election Commission on this subject. France, for example, in 2002 passed a new law prohibiting a 24-hour publication ban on opinion polls. French law requires the publishing media enterprise to provide details of the poll’s methodology if opinion poll results are published.

In the backdrop of swiftly approaching general elections, there is a need to take cue from the various notifications of the ECI on different Assembly elections to prepare the stage to adopt legislative amendments quintessential to the free and fair conduct of elections.

By Nripendra Misra, Director, PIF & Annapoorna Karthika, Research Associate, PIF

(This article was published in the New Indian Express on 6th May, 2013)

Round Table Conference on Decriminalization of Politics

A Round Table Conference was organized today, April 5, 2013, by Public Interest Foundation on the subject of Decriminalization of Politics.  Public Interest Foundation has already filed a PIL before the Hon’ble Supreme Court along with Common Cause, Transparency International and Gandhian Satyagraha Brigade seeking direction by the judiciary to the Government of India to enact legislation so as to debar those charged with serious offence from contesting elections.  The PIL also seeks the establishment of fast track court to expedite criminal cases of elected members. Further, it requests the Hon’ble Supreme Court to declare section 8(4) of the Representation of the People Act, 1951, which provides a safe haven to elected representatives even after conviction in case an appeal has been preferred, as ultra vires.

The keynote addresses were delivered by Justice M N Venkatachaliah, former Chief Justice of India and Mr. Ashwani Kumar, Minister of Law & Justice.  Mr. D P Tripathi and Mr. Dinesh Trivedi, Members of Parliament also made significant remarks highlighting the exigency to formulate concrete consensus on the subject.  Chief Election Commissioner (CEC) Shri V S Sampath and the former CEC Dr. S Y Quraishi made strong case for decriminalizing Indian politics and empowering Election Commission toward conducting free and fair elections.

Justice Venkatachaliah in his keynote address emphasized the urgency in placing the parliamentary process on sound tenets of democracy.  He particularly emphasized the need for intra-party democracy in the political parties in nominating candidates with criminal antecedents.  Acknowledging major reforms being canvassed for judiciary, Justice Venkatachaliah urged that reforms with respect to decriminalization of politics should not be delayed awaiting an holistic reforms in other institutions of democracy. He was of the view that a person charged with heinous offences and in which cognizance has been taken notice of by the court should not qualify to contest elections.  He particularly disowned the idea benefitting to the election candidates till the conviction has been finally determined at level of the appellate court.  He strongly affirmed that the plentitude of the powers of the Election Commission recognized by the Supreme Court should be adequately utilized, especially to curb the role of black money in elections. Concluding his observations, Justice asserted that the disenchantment of the common man with the democratic institutions of the country could be dramatically shifted solely by educating and rigorously registering the young voters of the country encouraging them to place faith in the country’s democracy. Law Minister Mr. Ashwani Kumar, agreeing on the broad agenda for electoral reforms, assured the participants that the reforms are high on his performance radar and he hopes to deliver concrete results at the earliest.  He also conveyed that all the proposals received till now for electoral reforms have been sent to Law Commission and the Commission is expected to send concrete proposals after due consultation with the stake holders.  However, he strongly argued against altering the presumptions of innocence that could potentially disqualify a candidate charged with a criminal offence in terms of the individual’s right to participate in the democratic process.  He particularly drew the attention of the participants to the fact that unchecked authorization to institutions may be abused and the individual which is the nodal point of democracy.

The two Members of Parliament strongly argued for major structural changes and expressed strong discontent toward any attempt to tackle the problem in isolation and piecemeal manner.  They were of the view that broader socio-economic changes and awareness should be the precursor before launching any major electoral reform relating to decriminalization.  Mr. Dinesh Trivedi also drew attention to non-compliance of judicial pronouncements of Vohra Committee report which was given about 15 years back pointing out the unholy nexus between the criminals and politicians.  CEC V S Sampath reiterated Justice Venkatachaliah’s view favouring the disqualification of individuals with criminal backgrounds from contesting elections. The CEC reasserted the demand to provide constitutional authority to Election Commissioners as a necessary precedence toward ensuring independence of the ECI. The broad consensus was that reforms must be introduced before the next General Elections failing which the role of criminals and black money would go unchecked and the future of democracy would be at peril.

Citizen-centric public services

The delivery of public services in a time-bound manner at the level of States and the Centre, if implemented efficiently, could become a single most revolutionary step imparting relief at the cutting edge level. The citizens, particularly our rural brethren, are shunted from one office to other for procuring documents relating to birth, death, caste, income level and other forms of entitlements. An incognito visit to revenue offices at block and taluk level would highlight the problems and consequent harassment suffered by an average citizen in resolving issues relating to his own land record rights. Evidently, there is significant petty corruption in the delivery of services. Even opening of a bank account is almost a life time achievement. The innumerable information sought by the bank in a complicated application form is beyond an average rural person. Hand holding is the only solution where the touts flourish unchecked.

In the UK, “Putting People First” was a radical departure from the traditional top down approach of the bureaucracy. The cardinal principles were avowed standards of services with a commitment to quality, transparency, information giving, courtesy in the delivery of services and above all, an incentive to exercise a choice whenever necessary to meet the expectations of a common citizen. The objective being to suit the convenience of the user measured in terms of relief offered to the citizen.
More than a dozen states have already enacted laws guaranteeing the delivery of public services within a specified time-frame. Although the lists of public services notified under the Act are not exhaustive, it certainly sets in tune a positive beginning. Based on information given by a few States through an application moved under RTI, the Government of NCT of Delhi, Punjab, Karnataka, Rajasthan and Uttarakhand have notified 44, 67, 84, 124 and 63 services under their respective State Acts. The states of Bihar and Madhya Pradesh, who were pioneers in enacting such a law, have specific and exhaustive lists as an outcome of periodic review of implementation. Most of the State Acts have a provision for grievance redressal, imposition of fine on erring officials and provision for performance audit.

The majority of citizens are yet not aware of their rights under this Act. In our analysis, it came to light that there were 12,887 cases in Government of NCT of Delhi in 2011 where penalty was leviable and citizens could rightfully claim relief. But the citizens concerned did not make any claim. To help citizens exercise choice wherever possible and raise their voice when necessary to ensure that quality of service is reasonable and timely, it is important to specify delivery standards easily understood by the public. The citizens still suffer under the impression that there is no such legal right available to them for getting high standard time-bound services. The Government of NCT of Delhi as per the information given under RTI processed 93 per cent applications of a total of 4,06,609 applications in 2011 within a specified time. The efficiency in the case of Bihar and Madhya Pradesh in terms of applications processed was 98 and 99 per cent respectively. The success rates in other states could not be evaluated as the Act has been made effective 2012 and the notification of services to be rendered is being continuously expanded. There is a degree of cynicism amongst the citizens regarding such high rate of efficiency. There is an element of disbelief. It emanates from the fact that majority of citizens are not yet aware of the provisions made under the Act regarding the type of services being rendered and the time table for delivery. The notifications are not publicly available and is mostly confined to the website of the department. The states have made very limited publicity regarding their commitment of time-bound delivery of services. Clear information widely shared about processes and procedures to access the services/benefits should be provided with particular reference to the levels at which they can be sought. Moreover, its integration with e-governance is a must. Evidently, the departments would have to provide community internet kiosks for the effective and widespread use of e-governance facility.

In response to widespread demand and mass mobilisation, the Union government tabled a Citizen’s Charter Bill, 2011. The Bill was referred to the Standing Committee which submitted its report in August, 2012.
It is now awaiting nod from the Parliament to be declared effective. The Standing Committee had recommended that the charter should clearly specify the function of a public authority, time frame for the delivery and the conditions for entitlements of the goods and services.

The Indian Institute of Public Administration had suggested an over-arching legal framework which would identify services, time-frame for delivery and procedure and avenues of public grievance redressal. The role of NGOs and civil societies at the field level is critical at the initial stage to ensure that the promises given to an average citizen are being fulfilled. In the state of Punjab, the government has constituted the Punjab Right to Services Commission whose responsibility is to ensure proper implementation of the provisions of the Act as well as to facilitate and enlarge the scope of public services within the state. It is expected from the commission that it would recommend additional notifications which would bring more government departments under the ambit of the Act. Further, the commission is required to propose changes in the procedures for service delivery to make them more transparent and citizen-friendly. The commission has over-arching powers to recommend action against the erring government officials. It also enjoys suo moto powers to take up cases of administrative failure and carry out inspections of the offices entrusted with the delivery of services as well as the offices of the appellate authorities.

Both the central and state governments are taking steps to bring about accountability, transparency and sensitivity in the administrative culture. The emphasis on developing public services as a professional, merit-based and accountable instrument of good governance — one which fulfils the promises made and bring information in the performance and delivery of services to citizens is dream yet to come true. However, it is distinctly within the realm of possibility.

By Nripendra Misra, Director, PIF

(This article was published in the New Indian Express on 3rd April, 2013)

Reality Check: Key findings of primary research studies on MPLADS and RTE

Impact- evaluation study of the Member of Parliament Local Area Development Scheme (MPLADS)

As part of our mandate of strengthening public policy, planning and governance of development issues, PIF commissioned a pilot study to look at the performance of the Scheme in the year 2009-10 and  2010-11 towards achieving its stated goal of grassroots development through the creation of durable community assets based on locally felt needs.  The Foundation outsourced a micro-level study spread across districts in the four States of Uttar Pradesh (Agency: Giri Institute of Development Studies), West Bengal (Agency: Hijli Inspiration), Maharashtra (Agency: Raman Development Consultants Pvt. Ltd) and Tamil Nadu (Agency: Raman Development Consultants Pvt. Ltd).  Total nine districts were selected based on the State-wise highest and lowest expenditure incurred under the Scheme.  A special consideration was made for those districts that have a sizeable SC/ST population in order to provide an insight into the Scheme’s impact on the development of the disadvantaged class.

The Foundation aimed at both qualitative and quantitative research analysis.  It mainly employed participatory evaluative methodology like focus group discussions to get a ground level understanding of the Scheme’s impact as well as budgetary monitoring tools to identify the structural constraints impacting the implementation of the Scheme.

As is known, the corpus of Rs. 4000 crore annually is placed at the discretion of the MPs and District Planning authorities. There are already reports from the Comptroller and Auditor General, NABARD Consultancy Services and the Parliamentary Committee on MPLADS regarding the strength and loopholes in the implementation of the Scheme.  The Scheme has already run for 20 years and it is important to evaluate the gains from the point of view of its continuity.

The discretion given to the Member of Parliament to meet the locally felt community infrastructure and development needs with emphasis on the creation of durable assets is laudable, but it was broadly experienced during study that the projects recommended and carried out were not aligned with the priorities outlined in the District Development Plan. The only exception being that of rural connectivity through roads, but the field experiences pointed to the fact that allocation of fund was broadly distributed to maximize the number of projects.  Thus, compromising on the durability of the roads constructed. MPLADS guidelines do not have any specific process of selection of particular work, synchronizing it with the locally felt needs or a platform where the expression of local community can be heard towards the final selection process.  It was also observed that the requirement of benefiting SC/ST population in quantitative terms was not clear in the guidelines and, therefore, there was a tendency to work out a proportionate advantage on the basis of their percentage population representation.  The selection of implementing agencies was heavily influenced by preferences of Members of Parliament.  In Maharashtra, the most preferred implementing agency of Labour Societies largely reflected specific segments of the community largely constituted by party workers thereby very close to the Member of Parliament.   The cost estimates and financial vetting of the proposals left much to be desired and attempts were generally made to accommodate more number of projects inadequately funded with no emphasis on maintenance.  The completion and utilization certificates were also not in accordance with the guidelines.  The information regarding completed and ongoing works were mostly not placed on the website.  Moreover, pro-active disclosure at many places was found missing, as the works executed were not displayed on a plague carrying the inscription of MPLAD Scheme details.  The inspection by the Nodal District Authorities was tardy at the senior level and the major casualty to this has been the identification of agency entrusted with the maintenance of the assets created.  There is an urgent necessity to identify agencies responsible for maintenance and earmark an annual allocation of 10% of MPLADS fund for maintenance and repairs of these assets created.

Overall, there is a need for re-visiting and revamping of MPLADS guidelines after taking into consideration the various reports both by the governmental agency and NGOs.  As the dovetailing of the projects implemented under the Scheme with the District Development Plan has not been possible, it is felt that the Government should re-look the details of the Scheme, particularly the selection process.  At present, the projects selected are mostly based on restricted local aspirations, influenced heavily by political overtones and are mostly suffering on account of inadequate maintenance provisioning.

Assessment of the implementation of the Right to Education (RTE) Act, 2009 in selected districts of Uttar Pradesh

The Right of Children to Free and Compulsory Education Act, 2009 (RTE Act), a milestone in the history of elementary education in India reflects a paradigm shift to a rights-based approach towards education. The RTE Act prescribes basic norms and standards for all schools to comply and cater to the educational and overall needs of all children in schools, irrespective of their social and economic backgrounds, gender, abilities or competencies. To gauge the level of involvement of all stakeholders and the status of implementation of the Act in schools, PIF undertook a study in three districts of Uttar Pradesh (UP), namely, Bareilly, Bahraich and Mau, on the basis of the total number of Out-of-School-Children (OoSC) falling in the eligibility age group, from the Annual Status of Education Report (ASER) 2010. The study was outsourced to Planman Consulting (I) Pvt. Ltd., New Delhi.

The categories of participants in the study include teachers, head masters, parental community, students/children, school management committee (SMC) members, and representatives at the Panchayati Raj Institutions (PRI) from all three districts. Six schools from five blocks in each district were proportionately drawn from both rural and urban areas. The data was collected through interviews of students, teachers, SMC members and other stakeholders, observations drawn from school visits and focused group discussions held with parents of enrolled students.

A key observation of the study states that majority of parents and SMC members view the RTE Act as a catalyst which facilitates the availability of schools in proximity to children belonging to weaker sections and disadvantaged groups. Even so, this viewpoint accelerates the want of desire in emphasising on the quality of education in these common schools. SMCs have been formed in all schools. They are aware of their roles and responsibilities towards the school. Yet, sensitization towards the creation of School Development Plans (SDPs) is still deficient.

There is a need to allocate additional funds to ensure implementation of multifarious aspects of the Act. The field study noted that 25 per cent reservation norm in private schools for weaker sections and disadvantaged groups residing in respective districts has been seemingly ignored from being enforced. Although, all three districts have neighbourhood schools (both primary and upper primary schools (UPS)) there is discrepancy in terms of prescribed distance. The concept of ‘neighbourhood schools’ is non-existent in few panchayats as primary schools are not located within a distance of 1km from the community as observed in Mau and Bareilly.

There is a swelling demand to thrust attention on infrastructure expansion in all the districts under consideration. Even as all weather-pucca building, boundary wall, provision for a kitchen to cook and serve Mid-Day-Meal (MDM), HM’s office room, library, playground and the  like are available in most schools, the number of classrooms in proportion to number of students has been found to be less. Crucial in this regard is the lack of access to sanitation facilities and regular potable drinking water in schools. This deficiency could adversely implicate the success of the RTE Act. Currently, multiple classes are being held together in one room, which may have major quality implications affecting the learning environment of a classroom.

Local authorities have been undertaking activities such as maintaining records of all children (who had dropped-out or never enrolled, children who belonged to the weaker sections, and children with special needs (CwSN)), participating in meetings of school management committee (SMC). Even so, these authorities are not absolutely active in their participation in school-mapping, child-mapping, holding awareness activities for sensitizing the parental community and collaboration with school and SMCs is less, in Mau district.

The admission procedures in most schools have been found to be transparent and in adherence to the State norms. There has not been any publication of records, admission registers or enrolments on any public portals by any of the stakeholders. Adequate funds have been provided by State Government under Sarva Shiksha Abhigyan (SSA) to most of the schools as per their needs and requirements. Provisions of Teacher Learning Material (TLM), free textbooks, uniform, scholarships, equipment and supplies for children with special needs (CwSN) etc. were available in all schools. Noticeably in most schools of the three districts over-aged children, those admitted late, drop outs or never enrolled children and CwSN have not been integrated into the common classroom. Special trainings for mainstreaming of OoSC and age-appropriate admission require specific attention. Adequate number of teachers is a concern in almost all schools at both primary and UP levels, especially for specific subjects. All teachers have been observed to have minimum eligibility qualification, attend trainings organized by District Institute for Education and Training (DIET), and are recruited as per rule.

Our study highlights that issues pertaining to enrolment, access, school infrastructure and other services such as quality teachers, management and monitoring system exist in the state educational system. In addition, it is relevant to bridge the gap between the rural and urban areas particularly in maintenance of records, appointment of teaching staff, infrastructural development and challenges to enrolling of children and reducing dropout rates.

Alleged criminals contribute to political stability !

At least a dozen prominent NGOs have filed Public Interest Litigation (PIL)  before the Hon’ble Supreme Court seeking intervention to shut the entry of politicians with criminal background.  These PILs are at various stages of hearing in the assigned Benches of Hon’ble Supreme Court.  The gist of  the prayer before the Hon’ble Supreme Court is as follows:-

(a) That article 326 vis-à-vis article 84/173 contains a bar both express and implicit against crime tainted persons becoming candidates or members.  Consequentially, sections 8, 9 and 11A of the Representation of People Act, 1951 (RPA)   be declared unconstitutional.

(b) Criminalisation affects the basic structure of democracy and there is a constitutional obligation to uphold free and fair elections envisaged under article 326 of the Constitution and thus ensure that the opportunity of one man one vote is neither breached directly or indirectly.

(c) That direction be issued to the Union Government for bringing legislation to disqualify persons with criminal background who have been charged with serious offences punishable for not less than five  years provided the appropriate court has taken cognizance of the offences.  Provided further that the offence was registered not within one year of the election notification.

(d) Further, the direction should require the Legislature to consider making appropriate law on the basis of recommendations by various expert commissions including the Law Commission on this subject.

(e) To fast track the cases of criminals who have entered the legislature with time bound disposal preferably in six months.

As mentioned,  Hon’ble Supreme Court is seized of this very important matter in different Benches.  It would be better to consolidate all such PILs for hearing by a common Bench so that important constitutional and legal issues raised as well as the relief sought are adjudicated and a stamp of  finality is given.

As per the existing provision in the RPA, 1951, anyone  found guilty of a criminal offence and has been convicted for a prison term of two years or more is disqualified to contest election for a period of six years.  The disqualification remains valid unless the operation of the conviction has been stayed   or suspended.  However, the RPA, 1951 provides a relief under section 8(4) to a sitting Member of Parliament or the Legislature of a State, who if convicted will not be automatically disqualified if within three months of the conviction, the elected representative prefers an appeal or revision against conviction.  Thus, the disqualification is suspended till the outcome of the appeal/revision by  a  competent court.

In a recent affidavit filed by the Ministry of Law & Justice, it has been stated that the convicted MPs/MLAs get disqualified only after exhausting all legal remedies and it is based on a legislative policy to “ensure existence and continuity” of an elected House.  The same affidavit also asserts “thus the plea about criminalization of politics based on the factual statement that a large number of sitting MPs are convicts is unsubstantiated”.

It is unfortunate that the criminalization in politics has been dealt in such a manner.  Is it not a fact that 1158 candidates contested  Lok Sabha election in 2009 who have criminal antecedents in terms of charge sheet framed?  Is it not a fact that 150 MPs have criminal record and 72 MPs are facing serious criminal charges.

Significant number of elected representatives  retain their position by maneuvering  the system in such a way that the hearing on their cases get deliberately delayed at the trial court itself.   It is evident  that such privileges are not available to any other category of citizens enjoying public office or otherwise.

One expected that the Union Ministry of Law & Justice should have recognized the menace of criminalization in Indian polity and assured the Hon’ble Supreme Court regarding measures to check the rot.  Deposing before the Committee on Law & Justice, Secretary, Legislative Department, on 25th January, 2007, had proposed a new section 8(b) to keep away from elections those persons alleged to have been having criminal background.  As per the suggestion, persons charged with heinous crimes at least six months prior to the date of nomination for election shall be disqualified unless acquitted.  It was also clarified  by the Secretary, Legislative Department that heinous offences have been identified for this purpose.  The Ethics Committee of the Parliament also in 1999 had suggested to the Government that electoral reforms should be expedited to keep criminals out of the political arena.  Both the Law Commission in its 170th Report and the National Commission to Review the Working of the Constitution (2002), had proposed a bar for entry of persons charged with any offence punishable with imprisonment  of  five years or more.  The Law Ministry, perhaps, avoided any commitment to Hon’ble Supreme Court in order to escape  any likely embarrassment in future.

The first step could have been to enact a law for the political parties which could ban the parties from giving ticket to contest elections to candidates having serious criminal antecedents.   Such heinous crimes could be listed for the purpose.   The Election Commission could be empowered to frame rules which would disqualify the candidates charged  for serious offences to contest elections.  The minimalistic agenda could be that after the election results are announced, the Election Commission may be asked to finalise a list of winning candidates who have serious criminal cases pending against them where charges have been framed by the court of law and these should be forwarded to a fast track court.    Any appeal filed by such candidates against the framing of charges or against later conviction by trial courts, should also be referred to a fast track court set up by the High Court/Supreme Court.  All such matters could be decided within six months.  The membership of the Lok Sabha  or State Assembly of such candidates should remain suspended till the pendency of the case.

The above arrangement would not disturb the stability of the Government. The suggested constitution of fast track court could be immediately implemented without waiting for an exhaustive electoral reform, which has been  evading political consensus.  This would create a level playing field for all parties and would discourage the political parties from giving ticket to criminals.  The criminals would also feel discouraged as they  may be subjected to a fast track decision which does not serve their self-interest.

By Nripendra Misra, Director, PIF

Proposal by Public Interest Foundation on Electoral Reforms in India

The electoral process was set in tune in the independent India with the institution of Election Commission of India (ECI) and the office of Chief Election Commissioner (CEC) preceding the enactment of the Representation of the People Act (RPA), 1951. The elections of 1951 captured the euphoria of India’s constitutional democracy. To Sukumar Sen, the first CEC, the elections in India were, unquestionably, ‘the biggest experiment in democracy in human history’ (Guha 2007, 147)1.

The widely contested debate on ensuring democracy to be safe for a 21st century world order evokes a critical thinking within the institutional structure of ‘the great Indian democracy’. The grandeur of the sub-continent’s electoral process is being marred by the escalation of criminals in politics, often,making laws on offences they are associated with. This, indubitably, affects the process of democratisation in the country. As the evidence of substantive democracy finds its presence in the public discourse on issues of governance deficit, there is an exigency to sustain the idea of Indian State constructed on the framework of liberal democracy.

You can read the rest of the article here.