Bureaucracy: Thou Shall Not Speak

Bureaucracy, specifically All India Services, is in the news again.  It is being flogged for all the unjust and unfair reasons.  A young lady IAS officer of two years seniority was suspended in a northern state without proper inquiry only to be reinstated when baseless charges came in the public domain.  Fortunately, media took up the case and debated the implications of such an arbitrary action.  The actors in governance did not pause or were concerned to take stock of the impact it will have on the morale of junior civil servants.  The debate in media reached a crescendo when an important political leader stated that the State could do better without All India Services.  The latest FIR in coalgate scam involving the then Coal Secretary Mr. Parakh is alarming and painful because it raises the basic issue of advice and recommendatory role of civil servants.  Fortunately, the political master in this case has risen above the controversy to confirm the transparency, propriety and integrity of the decision. The letter sent to the then Cabinet Secretary in 2005 by Mr. Parakh highlights the political culture of trampling the system. The undercurrent message of this episode is being debated in many smaller groups in bureaucracy regarding the hazards of decision making.

The real story of retired civil servants facing investigation and charges has not been highlighted or explored by mainstream media.  Such retired officers facing charges are compelled to engage defence attorney who may charge Rs. 1-2 lakh per appearance.  The justice in most of these cases is rendered after a long trial period.  The unfortunate retired civil servant exhausts all his savings in protecting his image. There is lack of systemic mechanisms to screen the charges with reference to prevailing circumstances and the delivery expectations.

Of late, the officers are being subjected to a draconian provision, section 13(1)(d)(iii) of the Prevention of Corruption Act, 1988 for criminal misconduct.  It reads, “While holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest”.  Simply interpreted, it will invite prosecution if a decision results in pecuniary gain to any individual, corporate or any organization.  The interpretation of public interest is often ‘subjective’.  In today’s scenario, public servants take a decision for development and growth.  Private sector is invariably a partner in such endeavours.  It is difficult to imagine a decision which would not impact in terms of gain or loss to economic actors be it private, public or both.  There are any number of economic decisions which are made, reviewed, amended, depending on the circumstances and economic challenges.  Very recently, spectrum prices have been revised downward.  It could be argued that such a downward revision was too steep and helped private sector.  It is also possible to interpret that unutilized spectrum is a greater loss in terms of revenue to the country.  It also affects consumer satisfaction as the quality of service for want of adequate spectrum suffers.  This draconian provision can be applied with the benefit of hindsight without appreciating exigencies at the time of decision making.  In spite of repeated recommendations of various committees, this provision in the Prevention of Corruption Act is yet to be omitted.   Hon’ble Prime Minister promised to put in place a system and create an environment in which civil servants are encouraged to be decisive.  He further promised to protect honest and well meaning civil servants.  Unfortunately, there is a huge gap between the promise and the delivery.

The Second Administrative Reforms Commission has observed that “Governance is admittedly the weak link in our quest for prosperity and equity”.  The consistent end performance in achieving the growth targets points to poor governance.  While it may not be a feasible proposition to achieve major reforms in the civil service due to lack of consensus at the political level, a minimal agenda of reform in civil service should not be out of bounds.

It is not denied that there exists a ‘spoil’ system where transfers and postings have been described as an industry.  Political interference and pressure on civil servants has become cancerous.  More than 600 committees and commissions, according to Second Administrative Reforms Commission, have looked into different aspects of civil service reforms.  It is important to eliminate the ad-hoc and non-transparent transfers and postings which often reflect the whims and caprices of political functionaries.  There is a need to do away politicized transfers and assure officers a certain security of tenure and demand accountability.  There are States where the District Magistrates and Superintendents of Police have an average tenure of about six months.  The implications of such a decision are well-known; but little has been done to check the rot.  The transferred officer is demoralized.  Knowledge and expertise gained during short stint is wasted.    There is a huge financial burden both on the State as well as on the officer concerned.  It is common knowledge that the States with administrative instability find officers keeping two establishments – one for the work station and the other for the family.  Its negative impact on the efficiency is self-evident.  The conference of Chief Ministers has passed resolutions for the constitution of civil service boards to depoliticize the so called transfer/posting industry.  Unfortunately, these have remained on paper and no one has questioned the gross political interference in the transfer/posting and also in disciplinary matters.  A Civil Service Board properly constituted could be entrusted with the task of managing the personnel matters and advise the Chief Minister on administrative matters.  It is important that all pre-mature transfers should be accompanied with a detailed reasoned order so as to become a subject matter of scrutiny for legislature, media and civil society.  Normally, a civil servant should be given a fixed tenure of minimum three years to foster fair and objective decision along with accountability and performance.

In recent controversies, there have been references to different forms of communications including oral orders for compliance from superior to the junior. There should be a blanket ban on any communication which has not been formally recorded.  Even urgent communications not conveyed in writing should be referred for confirmation as early as possible. Once implemented, the above suggestions would positively contribute to the quality of delivery and implementation of policies and programmes and overall, ensure efficiency and transparency in governance.

By Nripendra Misra, former Chairman of the Telecom Regulatory Authority of India & Director, Public Interest Foundation

(This article was published in Dainik Jagran on 31st Oct, 2013 and The New Indian Express on 5th Nov, 2013)

Political apathy on Lokpal is shameful

Anti-corruption activist Anna Hazare has once again threatened to take to the streets for the cause of a Lokpal. In view of continued inaction with regard to promises made and the midnight resolution of Parliament, what grounds do the parliamentarians have to claim that their authority to work on their own accord is being undermined through the hanging sword of Damocles?

It was around July-August, 2011, that the agitation for the institution of Lokpal, along with the other demand for grievance redressal, seized the national conscience — with citizens coming out in full support of the India Against Corruption-led campaign. The common view was that governance deficit was glaring, political will lacking and the Government just not serious about tackling the menace of corruption manifested in the form of black money, muscle power in politics, corruption in public procurement, slow administration of justice and lack of transparency in the working of institutions entrusted with the task of investigating corruption.

Mr Hazare’s fast at Ramlila Maidan had struck a chord with the citizens and the bulging support on the streets was an expression of their frustration with the growing corruption and ineffective measures to curb it. Rattled by the public outcry, the Government and the political functionaries put up the defence that exerting pressure on the Government through unsolicited mechanisms, like protests and street shows, to get an important legislation like the Lokpal adopted, was blatant undermining of the authority of Parliament and the Constitution.

Yet no one can deny the fact that it was this public outcry which pushed both the Houses of Parliament to emerge from their extended phase of inaction and adopt the ‘Sense of the House’ resolution on three key issues — citizen’s charter, lower bureaucracy under Lokpal through an appropriate mechanism, and establishment of Lokayukta in the States.

Two years on, the urgency shown by the Government and the Members of Parliament has gradually sunk into a state of torpor. With the next general election round the corner, unceasing attempts at maligning the image of rival parties and their leaders has taken centre stage.

Important legislative Bills like Lokpal and the Lokayukta Bill, 2011, and the Right of Citizens for Time-Bound Delivery of Goods and Services and Redressal of their Grievance Bill, 2011, have again been put on the back-burner, perhaps because the parliamentarians do not see these issues as game-changers in the forthcoming poll.

The Lokpal and the Lokayukta Bill, 2011, was adopted in the Lok Sabha on December 27, 2011. It was taken up for discussion and endorsement by the Rajya Sabha on December 29, 2011. However, the Bill was suddenly referred to the Select Committee for consideration. The Committee’s report is awaiting further movement since last eight months. This clearly demonstrates the lack of interest amongst lawmakers to take action on the report. Whether the Bill will be converted to an Act remains a moot question.

The Select Committee’s recommendations and the Bill as was presented in the Rajya Sabha, have very few issues of discord. The Government has to decide on the extent of Lokpal’s supervision of Central Bureau of Investigation; nature of investigation/prosecution wing under Lokpal; functional division of responsibility between Central Vigilance Commission and Lokpal and the nature of quasi-judicial powers with Lokpal, particularly on disciplinary matters. These issues can be addressed amicably and without any significant delay as there is commonality of views.

A similar indifference was meted out to the central version of the Right of Citizens for Time-Bound Delivery of Goods and Services and Redressal of their Grievance Bill, 2011. This Bill was introduced in the Lok Sabha on December 20, 2011, and referred to a Parliamentary Committee in January 2012. It is almost a year since the representation by the Parliamentary Committee got over, but as per the information in the public domain this very important piece of legislation is languishing and awaiting adoption in Parliament.

The continuing governance crisis and political apathy towards issues of larger public concern needs to be immediately addressed. The unanimous decision of all political parties to exclude themselves from the ambit of Right to Information Act is a clear indication of the reality that the campaign to free the electoral process from the shackles of muscle and money power is not over yet.

Indian democracy can ill-afford to continue with such a degree of insensitivity towards public welfare matters. As long as crucial issues, many of which have a bearing on the nation’s socio-political well being, continue to be ignored, street protests will remain the last resort of an angry people.

(By Nripendra Misra, Director, Public Interest Foundation)

(This article was published in The Pioneer on 9th September, 2013 and Dainik Bhaskar on 11th October, 2013)

A Guarantee without Accountability Right to Public Services

As if involuntarily acting on account of pressures from civil society and various other counters, the Right of Citizens for Time Bound Delivery of Goods and Services Bill, 2011 was introduced in the Lok Sabha on December 20, 2011.  It was referred to the Parliamentary Committee in January, 2012.The Committee sent its report in August, 2012.  About a year’s time has elapsed since the representation by the Parliamentary Committee was presented, and still the final version of the Bill, in light of the recommendations of the Committee, has not been tabled in Parliament.  This very important piece of legislation like all other critical bills may not get enacted in the 15th Lok Sabha.  Perhaps, it would require another push from the civil society to impart that sense of urgency at the right quarters.

The States have been pro-active in enacting and adopting the Act, facilitating for justiciable rights- based claim of public services within a specified time bound delivery.  Till now, 17 States have enacted this Act and are in various stages of implementation.   Madhya Pradesh was the pioneer which enacted this law in the year 2010; the year 2011 saw the Act getting adopted by 10 more states (namely Bihar, Chhattisgarh, Himachal Pradesh, Jammu and Kashmir, Jharkhand, Punjab, Rajasthan, Uttar Pradesh, Uttarakhand and Delhi); in 2012 four states of Karnataka, Orissa, Kerala and Assam also enacted the Act; whereas Gujarat and Goa have enacted the law only very recently in April and May 2013 respectively and thus have not even notified the first phase of government services covered under the Act yet. And the remaining 12 states which are still to enact this legislation are Andhra Pradesh, Haryana, Maharashtra, Tamil Nadu, West Bengal, and the seven north-eastern states of Sikkim, Meghalaya, Nagaland, Arunachal Pradesh, Mizoram and Manipur.

In order to find out the ground realities of the implementation of the Act in various states, Public Interest Foundation (PIF), a NGO, filed an application under the Right to Information Act, 2005 to all 28 states, asking for basic details of whether this act had been adopted in that particular state, and in case the answer was in affirmative then the rate at which the complaints were being received and processed.  An assessment based on notification of specific services for delivery was undertaken to evaluate if the enactment meant any appreciable improvement in the delivery of services and thus bringing about relief at the cutting edge level.

Most of the replies received to the RTI query shared only the details of whether this Act had been enacted by the State Government or not, and the number of services notified under the Act till date. The number of services covered range from 153 in Rajasthan to 13 in Uttar Pradesh.  Certification on health, birth, death, SC/ST status; issuance of BPL/APL ration cards; state-aided pension provision of various kind; power department and driving licences are some of the other services which have popularly been covered by most states for time-bound delivery. Other important basic public services yet to be covered uniformly by other states are services like labour -rights guarantees and coverage of Urban Development Department for property related settlement of various kinds like property transfer certificate, no objection certificate for building construction etc.

However a careful reading of the replies together shows up distinctly that notification of essential services is incomplete in most of the States. Majority of the States have left out the subjects of land revenue, land record, police administration, rend control, power supply and administration in decentralized local bodies.  The farmers face maximum harassment while seeking justice from the revenue courts.  There are ways of manipulating information to suppress records of frequent adjournment and delayed justice.  The same is the story of police stations in terms of registration of FIRs, speedy police intervention in cases of atrocities towards Scheduled Castes and Scheduled Tribes.  The complaint of wrong billing and erratic power supply is endemic.

Another important feature and conclusion is that the system has not attained critical mass.  The citizens are not aware of their rights and there is no hand-holding procedure to cut the red tape.  Some of the states like Madhya Pradesh in denying information on monitoring practices went on to the extent of stating that under RTI replies it is not possible to furnish such information which is not already present with them in an collated form as a part of their usual record-keeping exercise. But a careful reading of the Rules accompanying this Act clearly states the requirement as well as provides the standardized format for record keeping of all complaints registered, time prescribed as well as taken to handle the case, and the final status of the complaint to be maintained on a regular basis separately by designated officer, first appellate authority as well as the second appellate authority. Even the pending Central legislation Right of Citizens for Time Bound Delivery of Goods and Services and Redressal of their Grievance Bill, 2011, underlining this need for strict monitoring , in its Chapter X on ‘Reporting of Grievance Redressal by Public Authority’ of the Bill under section 46 (1) clearly states that, ‘Every public authority shall ensure that every Grievance Redressal Officer keeps a record of complaints made to it or appeal therein and the decisions on such complaints and appeals.’

Out of 28 states only four states shared monitoring records on number of cases received and disposed under the Act since conception. Moreover the monitoring data reveals only a very sketchy picture with no basis for conclusive analysis. Delhi and Karnataka both despite having provisions for punishing of erring public officials in case of delays beyond sanctioned time in handling of complaints have 3.6 lakhs delayed cases with no penalty imposed on defaulting officer in case of Delhi; and around 7.4 lakh cases pending beyond the sanctioned time with merely 06 officers brought to book in case of Karnataka.

Monitoring exercise of the implementation of this Act at ground level forms an important aspect of this Act, without which there would be no built-in accountability, and thus no way of knowing whether this highly acclaimed public welfare oriented Act is actually bringing about that change in the lives of the common man, which was the most important goal and promise of this very Act.

The Central legislation if passed without any further delay can provide that reference framework for the states to emulate underlining the importance for incorporation of in-built mechanism for monitoring of the rights guaranteed under the Act. Moreover, this record regarding the smooth functioning and the delivery of the promises made under the Act should be open to public scrutiny by being placed in the public domain. Infact the truth of the matter is that this very important enactment has yet to become part of district administration in the country, which can be achieved only when e-governance is adopted both at the level of request for services as well as its final delivery. For without this in-built mechanism for monitoring and accountability, there is a pertinent danger of this Act doing nothing more than a lip service to welcome change that it had envisioned and claimed to bring to the lives of the common citizenry.

By Nripendra Misra, Director, PIF and Tannu Singh, Research Associate, PIF

(This article was published in The New Indian Express on 26th August, 2013)

Public Interest Foundation’s reactions to the recent pronouncements of the Courts and the order of the CIC

SC order on freebies in manifestos of political parties

Significantly, the Hon’ble Supreme Court in the verdict of 5 July 2013 directing the Election Commission of India (ECI) to frame guidelines for regulating the contents of election manifesto has observed that the manifestoes even if announced before the notification of election dates, should be brought within the code of conduct as an exception.  The order of the SC explicitly finds strength in Article 324 of the Constitution which entrusts the responsibility for conducting elections in a free and fair manner to the ECI.  It is a landmark decision to ensure transparency, accountability and level playing field to all the political parties. Unlike in India, all promises of financial nature during elections are subjected to serious scrutiny by the media, think tanks and the televised debate in other developing countries.  Political parties in India only compete with each other to upscale the ‘free’ products. If honestly implemented, the political parties would not resort to the divisive policies and freebies to attract the “vote bank”. The most serious challenge before the Election Commission is its capacity to enforce various rules and regulations and also model code of conduct. The efficacy of powers granted to the ECI is seriously compromised in the absence of a specific provision for imposing penalty on defaulting political parties.  The Apex Court judgement of 10 May 2002 states that the present act and rules do not empower the ECI to de-register a political party. In the absence of any regulation on parties, the nation risks an atmosphere of ruthless politics with little or no public accountability.  Therefore, the Law Ministry without further delay should at least initiate legal reforms based on ECI proposal on issues which are non-controversial.

SC order on those convicted MPs, MLAs and MLCs will be disqualified unless an appeal is pending

The path-breaking judgement of the Hon’ble Supreme Court on 10 July 2013, which strikes down Section 8(4) of the Representation of People Act, 1951 restores the intent of Section 8(3) of RPA, 1951, which disqualifies a person convicted of any offence and sentenced to imprisonment for not less than two years from contesting elections and the disqualification is for a period of six years.  However, the Bench has recognized the powers of the appellate courts to stay the convictions under Section 389(1) of the Criminal Procedure Code.  The historic role of liberating of Indian legislative bodies from the criminals is a commendable contribution of the Hon’ble Supreme Court.

The striking down of the sub-section 8(4) of the RPA, 1951 is being widely debated on all forms of communication networks.  Even so, a straightforward analysis has been caught up in the interpretations leaning toward the subject of rising criminals in politics, which is exclusive to the declaration of sub-section 8(4) of the RPA, 1951 as ultra-vires the Constitution.  The judgment has only affirmed that the Parliament has no power to enact sub-section (4) of Section 8 of the RPA, 1951 vis-a-vis Article 102(i)(e) and 191(i)(e) of the Constitution.

Crucial to the judgment of the SC regarding Section 8(4) of RPA, 1951 is that it solely relates to disqualification after conviction.  The stage of conviction in majority of the cases is not reached because of the heavy pendency at the court level and deliberate efforts of the accused to delay the judicial process.  It is because of this reason that Justice Verma Committee Report on Amendments to Criminal Law, 2013 had proposed amendment to Section 8(1)(a) of the RPA, 1951 with the inclusion of offences punishable under the Indian Penal Code (IPC), 1860.  This proposal needs to be urgently adopted for defining serious and heinous offences where the term of punishment amounts to an imprisonment of five years or more resulting in disqualification of candidates on charges being framed by the court.  This would require amendments to Sections 8(1), 8(2) and 8(3) of the RPA, 1951. The establishment of Special Fast Track Courts for time bound disposal of cases of the candidates charged with serious and heinous offences is a necessity that complements toward efficacious implementation of the judgement as it could act as a deterrent to those with cases of criminal offences pending against them in the court from contesting elections in order to avoid a speedy and time-bound adjudication of the case.  These Fast Track Courts should be enabled to take up the cases of elected representatives to minimize political uncertainty in Parliament/State Assemblies.

SC order that those in jail cannot contest

Although this verdict of the Hon’ble Supreme Court is in absolute sync with upholding of the Constitutional morality of India’s democratic order, the judgement requires a review of the Court in the present fractious political climate marred by mounting criminalization. It is inferred that in the reading of the Representation of People Act, 1951, the Court could have inadvertently missed the potential of the words of the judgement to be blatantly abused and misused by competing political parties during elections. For instance, the arrest of cartoonist Aseem Trivedi in 2012 on serious charges of sedition for his anti-corruption cartoon is a reflection on the umbrage the nation felt at the abuse of law, especially by the political class. Extreme caution in the use of law and its language is demanded at a volatile situation of present parliamentary order. The judgement should be urgently reviewed to examine the need for any possible amendments for clarity on the subject.

Allahabad HC order on caste-based rallies

The judgement of the Allahabad is considered widely as a profanation of the Fundamental Rights guaranteed by the Constitution to the citizens of India with respect to the right to assemble peacefully without arms under Article 19(1)(b) of the Constitution. This Fundamental Right can be restricted by law only in the interest of the sovereignty and integrity of the country. It is impossible to feign that a caste-based rally is not essentially the quintessential stroke in the wheel of social justice. It is pivotal to define a caste-based rally. Could a rally held by the nation to mark its indignation at an incident like that of Khairlanji massacre be called a caste-based rally? Those caste-based political rallies intended at demanding votes in an election are dealt under electoral offence and they don’t demand absolute ban on the rallies.

CIC order to bring political parties under the ambit of RTI

The Central Information Commission  on 2 June 2013 have given a decision that the listed political parties, i.e. AICC/INC, BJP, CPIM, CPI, NCP and BSP are public authorities under Section 2(h) of the Right to Information Act, 2005. Thus, requiring pro-active disclosure put in the public domain.  It also grants right to the citizens to seek information from the listed political parties.  This order mainly seeks disclosure of financial nature, donations, funding of election which, in some manner, is already required by the ECI.  It is expected that the parties would not be required under RTI to provide rationale for selection of candidates, internal management of the party etc.  Perhaps, there is a case for clarification regarding the nature of information to be made available under RTI.  This would soften the all-round opposition to the pro-active disclosure and the political parties ganging up to challenge the decision may be dissuaded.

By Nripendra Misra, Director, Public Interest Foundation and Annapoorna Karthika, Research Associate, PIF

(This article was published in Dainik Bhaskar on 1st August, 2013)

Election Commission empowered to enforce clean politics

The Hon’ble Supreme Court in its order dated July 5, 2013 has directed the Election Commission of India (ECI) to frame guidelines for regulating the contents of election manifesto.  Further, the Supreme Court has observed that the manifestoes even if announced before the notification of election dates, should be brought within the code of conduct as an exception.  It is evident that the order of the Hon’ble Supreme Court to ECI is under Article 324 of the Constitution which entrusts the responsibility for conducting elections in a free and fair manner to ECI.  It is a landmark decision to ensure transparency, accountability and level playing field to all the political parties.  If honestly implemented, the political parties would not resort to the divisive policies and freebies to attract the “vote bank”.  Promises on freebies by political parties have no  linkage with the financial health of the State, likely tax burden and impact on the state revenue.  In the USA, all promises of financial nature during elections are subjected to serious scrutiny by the media, think tanks and the candidates are often called upon during the televised debate to balance the implications of receipt and expenditure.  Political parties in India do not have such obligations, and they only compete with each other to upscale the ‘free’ products.  While working in a State Government, I had once advised against promise of higher cane price on grounds of poor sugar recovery and very heavy cane arrears.  The truth was that the poor farmers did not get  their cane dues for 3-4 years, because the sugar mills were unviable under the cane price dispensation.  On the other hand, the farmers were coerced to make repayment of agricultural credit.  The point being made is that the value of freebies is not really free gift voucher, but short-term gain to a political party.

Recently, Central Information Commission have given a decision that the listed political parties, i.e. AICC/INC, BJP, CPIM, CPI, NCP and BSP are public authorities under Section 2(h) of the Right to Information Act, 2005.  This order mainly seeks to ensure a pro-active disclosure of financial nature, donations, funding of election which, in some manner,  is already required by ECI.  It is expected that the parties would not be required under RTI to provide rationale for selection of candidates, internal management of the party etc.  Perhaps, there is a case for clarification regarding the nature of information to be made available under RTI.  This would soften the all-round opposition to the  pro-active disclosure and the political parties ganging up to challenge the decision may be dissuaded.

The above two developments, i.e. order of the Hon’ble Supreme Court and the decision of the Central Information Commission, are very much in line with the various commissions constituted by the Government which have highlighted the need for regulating financial transparency and inner democracy within the political party system.  Our Constitution, except for the Schedule dealing with the disqualification of a person as a Member of either House of Parliament or the Legislative Assembly, does not make a specific mention of political parties.  The very bedrock of Indian parliamentary system was left to the evolution of healthy convention and respect for rights of the association of body of individuals to constitute a political party registered by the ECI.  Hon’ble Supreme Court in the judgment of July 5, 2013 has stated that the Parliament should frame a new law to regulate political parties in the country.  This was earlier recommended by the Law Commission of India and also by Justice Venkatachalliah Commission on the Review of the Constitution.  Former Chief Justice of India, MN Venkatachalliah  has guided the Centre for Standards in Public Life in the preparation of a draft bill on political parties.  Therefore, the Government does not have to invent a new wheel and it could initiate a dialogue amongst political parties to arrive at  least intrusive law relating to the affairs of political parties.

The most serious challenge before the Election Commission is its capacity to enforce various rules and regulations and also model code of conduct.  Few examples would highlight the point being made.  Section 29C of the Representation of People Act, 1951,  requires all registered political parties to submit an annual report to the ECI on all contributions in excess of twenty thousand rupees for being eligible for any tax relief.  In response to an RTI application, ECI has conveyed that only 8% of 1196 registered political parties have submitted annual reports in 2010-11 regarding contributions above twenty thousand rupees  to the Election Commission.    ECI  under section 29A of the RPA 1951 requires political parties to submit their audited annual financial statements within six months of the end of each financial year.  ECI has made a shocking revelation that out of a total of 1196 registered political parties only 174 have actually submitted an annual audited financial statement for year 2010-11. Further follow-up action is not known.   As the power to withdraw the eligibility of tax exemption is with the Finance Ministry, ECI has sent the list of the parties who are in non-compliance to that Ministry.

The efficacy of powers granted to the ECI is seriously compromised in the absence of a specific provision for imposing penalty on defaulting political parties.  A culture of blatant disobedience among registered political parties has taken roots.  Does the ECI have powers to de-register a political party?  The judgment of the Apex Court dated 10.05.2002 is that the present act and rules do not empower the ECI to de-register a political party.   At least 500  registered  political parties do not have authentic addresses and have never participated in  any  State or national level election.  The ECI proposal sent in 1998 to Government of India to empower ECI with de-registration is still under consideration.

In the absence of any regulation on parties, the nation risks an atmosphere of ruthless politics with little or no public accountability.  The citizen today is aghast to notice that main national political parties are even trivializing the acts of terrorism threatening the national security.  It is a pity that well-established security and investigative agencies are being debated  with half baked information ultimately causing great damage to the integrity of the institutions.  The well-established conventions have been given a go-bye and selective leak is no longer perceived as a serious breach of indiscipline.

In conclusion, three action points emerge for immediate attention.    Firstly, the ECI should frame guidelines under the model code of conduct for election manifesto of political parties; secondly, the Law Ministry without further delay should at least initiate legal reforms based on ECI proposal on issues which are non-controversial.  The power to ECI for de-registration of political parties is one such example. Thirdly, the Government should act upon the order of Hon’ble Supreme Court and also the Law Commission recommendations for major electoral reforms and regulating of the political parties.  The minimum that citizens can be promised is an authentic public information regarding defaults by political parties on binding disclosures.  Is it too much to ask in this great democracy?

(This article has been published in The New Indian Express on 15th July, 2013 and Dainik Jagran on 11th July, 2013)

Letter to the Ethics Committees of Parliament on the issue of conflict of interest by MPs

The Public Interest Foundation sent letters on 6 June 2013 to then Chairmen of Committee on Ethics of both Houses of Parliament, Mr. Sis Ram Ola and Prof. Ram Gopal Yadav, requesting their thoughtful attention toward compelling grounds to dissuade Members of Parliament from employing members of their immediate family and relatives in their personal staff.

The Foundation’s research initiatives on systemic reforms in the country to obviate the incidence of governance deficit has observed the ethical quagmire in India’s parliamentary democracy with print media reporting on Members of Parliament (MPs) employing immediate family members and relatives as personal assistants. Indubitably and evidently, the question of ethics and propriety in public office has emerged as an upshot of the report stating that 104 members of Lok Sabha and 42 members from Rajya Sabha have appointed at least 191 relatives in their personal staff.

Although a law does not exist in India preventing these appointments by MPs, but there cannot be any reasonable justification bereft of explicit conflict of interest on the part of MPs in generating income to one’s own family members at taxpayers’ expense. This should be considered as exploitation violative of rights, privileges and probity of common citizens.

An elected representative of the people is expected to maintain the highest moral and ethical standards in office. Entertaining matters raising conflict of interest by an MP is reflective of the profanation of the elected representative to the oath or affirmation made when entering the House of Parliament. The public contempt at the deterioration of the Parliament has reached the volatile juncture where immediate actions have become necessary to ameliorate and instil ethics and probity to the office of an MP.

In this regard, an understanding of House of Commons Rule in Canada would prove a benignant force in formulating any law in India to curb actions of conflict of interest by MPs. The Rule in Canada clearly states that MPs in the House of Commons are not allowed to “hire or enter into a contract for consulting and professional services with members of immediate family (spouses and their children and their spouses and children)”. The Conflict of Interest Code for Members in the Canadian House of Commons under section (8) of Rules of Conduct states that “Members shall not act in any way to further his or her private interests or those of a member of the Member’s family, or to improperly further another person’s entity or private interests”.

The good authority of Ethics Committees of both Houses are trusted in taking suo motu cognizance of this critical issue toward initiating measures to stringently rein in appointing of family members and relatives by MPs in their personal staff. Any law directive of this intention should potentially define “family members” and “relatives” along with disciplinary actions against MPs contravening any such law. The Foundation solicited their kind attention toward the exigency to curb any misconduct in the office of an MP expending public exchequer.

Letter drafted by Nripendra Misra, Director, PIF and Annapoorna Karthika, Research Associate, PIF

The jewel under wraps: Impact assessment of the 2nd ARC reports

What is the relevance of Government appointed Commissions and Committees? The perception is that it is a strategy for keeping the long pending governance issues under folds.  The Government justification is that it is a sincere effort to garner specific expertise recommendation for chartering a feasible way forward on a significant challenge at hand.  Assuming that the Government claim is genuine, then it should be mandatory and specifically mentioned in the terms of reference a concrete time line both for receiving the recommendation and also for public record on substantial actions taken by the Legislature and executive towards implementation of the relevant accepted recommendations of the Commission/Committee.

There is plethora of recommendations received from various Commissions/Committees which for want of any effective action become irrelevant with the passage of time.  The specific case under the scanner here is that of the Second Administrative Reforms Commission (2nd ARC) which was set up in August, 2005 as a Commission of Inquiry for preparing a detailed blueprint to revamp the public administrative system under the chairmanship of Shri M. Veerappa Moily.  The Commission was set up with a clear mandate to suggest measures to achieve a pro-active, responsive, accountable, sustainable and efficient administration for the country at all levels of the Government.  The first Report of this Commission on the Right to Information was submitted in 2006.  14 more Reports have been submitted since, the last being the 15th Report submitted in the year 2009.

Starting with a bang on Right to Information (RTI) with laudable promises of addressing the major deficit in “good governance’, it is close to eight years since its commencement and exactly four years since the last Report submitted in April, 2009, still there is no ‘Action Taken Report’ in public domain as regards the major recommendations of the 2nd ARC.  As per the reply to an application under RTI moved by Public Interest Foundation (PIF), the Department of Administrative Reforms and Public Grievances, has disclosed that the total expenditure incurred in the working of the Commission till January 2013 amounts to approximately Rs. 11.90 crore.

Subjects dealt by the 2nd ARC are key agendas of contemporary relevance like ethics in governance, steps to ensure effective administration at the state level, district administration, local self government/Panchayati Raj institutions, participative and transparent delivery of public services, citizen-centric administration, promoting e-governance, crisis management, public order and police reforms, judicial accountability, ombudsman/Lokpal etc.  It is no body’s case that these important issues of governance should be addressed through a single reformative step forward.  Given the federal character and also accountability to the Legislature, the initiatives of course correction would emanate from multiple points leading to upgradation of the present system of governance which is the widely recognized as incapable of meeting the nation’s expectations.  The present polity is facing multiple challenges and ineffective redressal is causing the threat of multiple organ failure.  Sincere adoption of relevant recommendations of the 2nd ARC would have certainly guided in the positive direction leading to resolution of the various important deadlocks that our nation is grappling with on a day to day basis, it only points to the sorry state of affairs that the recommendations of the 2nd ARC are still wanting effective actions in terms of ground level execution.

Thanks to Right of Information Act, which certainly draws its strength from 2nd ARC itself, efforts to probe deeper by PIF on the fate of relatively more important reports on the 2nd ARC from the perspective of advocacy towards good governance, was rendered futile.  The specific reports explored for outcomes were the 4th Report on Ethics in Governance and the 5th Report on Public Order.

The careful reading of the 4Th Report on the Ethics in Governance shows the pivotal impact that could have been made through the serious consideration and adoption of its recommendations. Commission gave wide-ranging recommendations on electoral reforms which included partial state funding for elections, amendment to section 8 of RPA, 1951 to disqualify persons facing charges of grave and heinous offences, collegiums of bipartisan nature for the appointment of Chief Election Commissioner etc.  As per the information, the recommendations relating to electoral reforms have been forwarded to the Ministry of Law & Justice.  Also, recommendations on integrity of public servants, seizure of illegally acquired assets and measures to curb black money are now with the respective Ministries.  The Commission had also highlighted the delay in trials under the Prevention of Corruption Act.  It had recommended a time limit for various stages of trial and the Apex Court was to lay down guidelines to preclude unwarranted adjournments and avoidable delays.  The vital recommendations to cleanse the system and introduce integrity and efficiency has been put on a snail pace action.

On the first RTI application filed in December 2012, to know the status of adoption of all recommendations under the Fourth Report on 2nd ARC, the Department of Administrative Reforms & Public Grievances (DoARPG) informed that out of a total of 134 recommendations 79 recommendations were accepted by the Government and 21 were referred to other fora, remaining 34 were not accepted by the Government. Out of the 79 accepted recommendations actions on 53 have been completed and 26 accepted recommendations are pending for implementation by the Government. Not completely satisfied with the nature of the answer which seemed to be concealing more than revealing by refusing to divulge any details on subject matters towards which recommendations got accepted or rejected, PIF again filed another RTI application. This time the RTI application inquired to know the status of acceptance of specific recommendations on issues of grave importance like institution of Lokpal and Lokayukta, Political Funding, Anti-Defection Law, Disqualification of the MPs under Section 8 of the RPA, Coalition & Ethics, Fate of MPLADS & MLALADS, Ethical Framework for Judiciary, Speedy trial under Prevention of Corruption Act, Confiscation of Illegally acquired property through corrupt means. But the answer again was evasive in terms of the fact that rather than giving concrete actions on the status of the action taken on these specific agendas, PIF was redirected to various Government Departments. This only shows that there is no concrete movement on the central issues as per various Reports submitted on the 2nd ARC.

Similar fate was met out to PIF’s inquiry on the Fifth Report on 2nd ARC which deals in the area of Public Order. This particular Report deals with recommendations on the much-debated grey areas of present day Governance like Police Reforms and Repealing of the Armed Forces (Special Powers) Act, 1958.  Department of Administrative Reforms & Public Grievances (DoARPG) simply informed PIF that this Fifth Report which was submitted in 2007, is still under the consideration of the Government.

Given the fact that the issues covered under the purview of the 2nd ARC are critical to extricate from the morass of governance paralysis that India faces today, it is indefensible that the recommendations are being subjected to routine procedures and formalities and no attempt has been made to fast track the execution.  The term of the present Parliament would be over by May, 2014 and perhaps there may be yet another proposal to constitute a 3rd Commission for administrative reforms to placate various position seekers.  It is necessary that the Action Taken Report in a time bound manner is placed in the public domain so that the accountability increases and the propensity towards using Committees/Commissions as a procrastination strategy is effectively checked.

By Nripendra Misra, Director, PIF & Tannu Singh, Research Associate, PIF

(This article was published in the Dainik Jagran on 16th June, 2013)

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