Tuesday, September 25, 2012

de criminalising Parliament

With the public gaze resting so determinedly on politicians involved in crimes against women, some political parties have announced that they will not henceforth field such candidates. Some well meaning social activists have filed PILs in the Supreme Court, seeking suspension of MPS and MLAs with cases of crimes against women pending against them. The Supreme Court has declined the prayer, the matter being outside its jurisdiction. 

But why must we hold our breath and wait for political parties to display the good sense to not field criminals as candidates when that's something that they have not done for several decades? Why must we appeal to the courts for relief ? Why do we not demand a legal provision for disqualifying those candidates and elected representatives who have pending criminal cases?

The qualifications and disqualifications for the people's elected representatives are laid down in the Representation of The People Act, 1951 ( the Act ). At present, the law provides for disqualification of only those candidates and MPs/MLAs who are convicted of serious crimes. Because there are long delays in criminal courts, this means that people accused of serious crimes become and remain MPs/MLAs. If the disqualification clause were to kick in before the conviction, we would in one stroke be rid of such elected representatives. 

More than a year ago (4rth August, 2011), The Times of India had reported that there is a move to amend the Representation of the People Act, 1951 along these lines; the move appears to have sunk without a trace. 

Proposed amendment

What is being proposed is that the Representation of the People Act, 1951 be amended so that elected representatives or candidates against whom the court has framed charges involving serious crimes are disqualified from office and contesting election respectively. 

Such a provision will remove the anomaly that MPs/MLAs who have been arrested and against whom investigations have concluded and charges framed in serious crimes continue to participate in parliamentary/government business and to draw salary, perquisites and privileges. Even when an MLA/MP gets convicted, he does not get disqualified till the appeals that he files against the judgement are finally disposed of. The corporate sector would not employ such a person and if he were a government employee, he would be placed under suspension/dismissed. Our elected representatives and political aspirants, however, enjoy a different status ----the irony is that rather than the standard of probity, it is the level of immunity from the consequences of criminal activity which is higher in their case! 

The bogey that is raised against such a provision in the Representation of People Act is that it will be abused by political rivals who, it is said, may get false/bogus FIRs registered or complaints filed in order to wreck the political aspirations of their rivals.

However, if one looks at the various stages of criminal proceedings in India, it becomes clear that this is an exaggerated and baseless apprehension. If an FIR or complaint is registered with mala fide and without sufficient ground, the case will not reach the stage of framing of charges, which is the stage at which it is proposed that disqualification clause under the Representation of the People Act should kick in.

Stages of criminal proceedings

The Code of Criminal Procedure, 1973 (the CrPC) is the procedural law vis a vis the substantive criminal laws, such as the Indian Penal Code, 1860, the Prevention of Corruption Act, and other laws that criminalise specific acts of omission or commission and lay down the penalty for such crimes. It divides the procedure to be followed in criminal cases into three stages ---- investigation, inquiry, and trial.
First stage

Investigation is the preliminary stage and begins after the recording of a First Information Report (FIR) in the police station. It includes all the action taken by the police officer for collecting evidence, ascertaining facts and circumstance, arresting the suspected offender, examination of various persons including the accused, recording their statements in writing, search and seizure, and formation of opinion as to whether, on the basis of the material collected, there is a case to place the accused before a magistrate for trial and if so, taking the necessary steps for filing the charge-sheet. Investigation ends in a police report to the court.
Second stage

The court sifts and weighs the evidence placed before it to find out whether or not there is a prima facie case against the accused person(s). If, after considering the material placed before it and hearing the accused person and the prosecution , the judge considers that there is no ground or insufficient ground for proceeding, he discharges the accused . In case the material placed before the court discloses grave suspicion against the accused , the court frames the charge. A charge sets out the offence that was allegedly committed by the accused person. 
Third stage

Now the charge is read over and explained to the accused. If the accused pleads guilty, the judge records the plea and may convict him.If the accused pleads not guilty , the trial begins and examination of witnesses, cross examination, examination of the accused by the court etc take place. If after taking the evidence for the prosecution and examining the accused, the judge considers that there is no evidence that the accused has committed the offence, he acquits the accused. Otherwise, a defence is entered, evidence adduced in its support and witnesses produced. After conclusion of arguments by the prosecutor and defence, the court pronounces a judgment in the trial.

As of now, the disqualification clause kicks in after stage 3 , what is proposed is that it gets set into motion after stage 2. Obviously, if a mala fide FIR has been registered by a political opponent, no charges will be framed by the court against the MP/MLA/candidate. Therefore, the argument that such an amendment will be abused by political opponents is baseless and merits not even a second look.

Why then are political parties wary of even talking about such an amendment? Because 31% of our MPs/MLAs have pending criminal cases and would be immediately disqualified!

Saturday, September 22, 2012

the ignorant Indian

The Argumentative Indian ( a la Amartya Sen) has been replaced by The Ignorant Indian. Money does not grow on trees, ignorant Indians were informed yesterday by the Prime Minister. They have reacted with disbelief, and a sense of outrage.

These words are familiar to even toddlers who are thus admonished by exasperated parents when they persist in demanding an object of desire that the parent cannot afford. It is entirely possible that the toddler does not understand the phrase and perhaps tries in vain to understand what money is. As he grows older, however, the concepts of income and  expenditure begin to get assimilated, the fact that incomes have to be earned, and that income and expenditure have to be balanced. The average Indian child sees his parents balancing monthly budgets, annual budgets, festival budgets, wedding budgets. He sees how sudden illnesses demanding expenditure on medical care upsets the budget for months, and sometimes years. He sees money being saved and put aside for a two wheeler or a car or a dowry or higher education. There are exceptions, of course --- perhaps the Ambanis and Jindals and Adanis do not burden their children with such knowledge. (Even the privileged children grow up to understand these concepts ----- how else  will the business he inherits continue to make profits ? ) 

So who was the Prime Minister talking down to? Is our government so removed from reality that it does not credit the citizen with even common sense? Is it so arrogant in its belief in its infallibility that it does not make even a pretense of respecting the very people who have voted it to power? 

This is not a Prime Minister given to making extempore speeches. He does not make frequent addresses or Parliamentary interventions, nor does he conduct weekly press briefings. This is a Prime Minister whom we hardly ever hear, so the very safe presumption is that the address he delivered yesterday was carefully scripted, and was delivered with complete knowledge of its content and deliberate intent ---- and it insulted the intelligence of the ordinary Indian.

The Prime Minister did not choose to address the nation when the CAG report on coal allocations was presented in the Parliament, and a whole session of the Parliament was washed out.The CAG report has cast strong doubts upon the bona fides of the whole policy making and execution mechanism of the nation, including the Prime Minister. Yet, the Prime Minister spoke only of the need to take measures that lead to restoration of investor confidence, with not a whit of concern shown for the complete erosion of citizen confidence in the government.In fact, so strong is the government's apparent belief in the credulousness of the "ignorant" Indian that he has been asked by the Prime Minister to extend his "trust", "understanding" and 'cooperation" as the government takes "hard" decisions to secure national interest. Please note that the "hard" decisions extract a disproportionately high cost from the ordinary Indian, they place scarcely any burden at all upon the privileged Indians whose "big cars" and "SUVs" do not face any additional tax burden. 

We are living in strange times indeed ---when the price of inclusive growth is being paid by the very people who are sought to be included in the growth story! Perhaps the government believes we are oblivious to this irony.  I do not think we are, and it is time that we made that known.

Wednesday, September 19, 2012

some questions about the Planning Commission

Every other day, we hear a sage pronouncement from Montek S Ahluwalia, the Deputy Chairman of the Planning Commission. The learned Deputy Chairman has a prescription for each and every ill that besieges the Indian economy. The problems that beset us are many, of varied hues, of varying intensity. They are to do with inflation,  unemployment, farmer suicides, environmental degradation, crumbling health care systems, illiteracy, mal nourishmnet, poor roads, erratic power supply, lack of drinking water, pathetic sanitation facilities etc etc. The Deputy Chairman has a solution for each of these problems. What is common to his prescriptions is that the USA, the World Bank/IMF, MNCs, unscrupulous businesses and corrupt politicians love them, but the aam aadmi does not, the lakhs of Indians and innumerable organisations working for equitable, sustainable growth do not. What is also common to all these prescriptions is that they involve a total disregard for decentralised solutions, for community level action, for traditional wisdom.Yet, these are the very prescriptions which are increasingly becoming the corner stone of government policy, and the so called reforms that will supposedly reignite the growth story. 

What strikes a dissonant note is the fact despite its a- finger-in-every-pie approach, the Planning Commission is a body created neither by statute nor by the Constitution. Although its role is as significant as that of the Comptroller and Auditor General, or the Election Commission of India, or the Central Vigilance Commission, it has no statutory or constitutional authority or responsibilities and  can assume whatever functions and tasks the government of the day is agreeable to.

The Planning Commission website says it works under the supervision of the National Development Council (NDC). Interestingly, the NDC too is an extra statutory, extra constitutional body, comprising the Union Cabinet and Chief Ministers. The manner in which it "supervises" the Planning Commission is a little mystifying, because the NDC can only "advise" the Planning Commission,  it has no veto powers whatsoever.

We do not know either the eligibility conditions/qualifications for being appointed the Planning Commission's Deputy Chairman.It is important, of course, to be on the right side of the powers- that- be, but other credentials have not been spelled out anywhere, despite the fact that the Deputy Chairman is de facto head of such an important policy making body of the government.

No less discomfiting is the fact that the Deputy Chairman is appointed by the Union Government without any broad based consultations about the likely candidates. Given the far reaching significance of the Deputy Chairman's responsibilities, should we not adopt the same mode of appointment as for the Chief Vigilance Commissioner, namely, a committee that includes the Leader of the Opposition in the Lok Sabha?

The Deputy Chairman is neither an elected representative, nor a civil servant, so the mechanism whereby he can be held accountable to the people is ambiguous, if one exists at all. There is no provision in the law either (at least, none that I am aware of) for his removal on such grounds as incapacity although such procedure exists for the CVC, ECI etc.

Notwithstanding all of the above, the Deputy Chairman of the Planning Commission holds the rank of a Cabinet Minister, with all its perquisites and privileges, and in the Warrant of Precedence , he ranks above the Attorney General, the Comptroller and Auditor General, the Chief Election Commissioner, and the Chiefs of Staff, holding the rank of General (or equivalent). 

Is it any wonder then that in the Deputy Chairman's pronouncements, one only senses an overwhelming arrogance and indifference to public opinion?

Sunday, September 16, 2012

6 and no more!

The government has decided that henceforth, each Indian household will get 6 LPG cylinders per annum at the subsidised rate of Rs 399 per cylinder, and all further requirement will have to be met by buying the LPG cylinders at the market rate of Rs 746 per cylinder. The government says that 44 % of LPG users in any case  consume 6 or less than 6 cylinders, and they will therefore not be affected by the government's decision.Does it occur to the policy makers that  those who consume 6 cylinders or less may actually wish to consume more if only they had the resources to buy more, that they may not relish the prospect of cooking over wood fire and cow dung simply because they do not earn enough to buy more than 1 cylinder once in two or three months, and that all those who consume more than 6 cylinders per annum are not necessarily profligate consumers who, for reason of their profligacy, do not deserve to have  LPG consumption subsidised?

Is the government aware that those who most deserve the subsidised LPG often buy LPG at astronomical rates because of unethical behviour by the LPG distributors? For the poor, illiterate Indian, who often has to migrate in search of a livelihood, obtaining an LPG connection is still a Herculean task. He does not understand the procedural requirements, is discouraged by the LPG distributor from applying for a connection, and even if he picks up the courage to do so, often does not  have all the documents regarding proof of residence etc. So, he purchases LPG in small quantities at 3 or 4 times the rate at which it is legally sold. He buys it from those unscrupulous people who are in cahoots with the LPG distributor and are allotted gas cylinders on priority. If the government stepped forward to help these households get LPG connections, the subsidy payments would undoubtedly rise. However, the possibility is remote indeed of the LPG subsidy being extended to the impoverished Indians currently outside the net seems by a government which is expressing helplessness at bearing the current subsidy payments, and is endeavouring to lower the amount by  imposing the 6 cylinder cap. 

Unless, the government decides to limit LPG subsidies to the aam aadmi.

Why does the government, which is so stubborn about not universalising the Right to Food and is talking instead in terms of targeting, not implement a targeted LPG subsidy? Why does the government  need to subsidise even 6 cylinders for the Ambanis and the Jindals and their ilk, for the MPs and MLAs and Ministers, for judges of the Supreme Court and High Courts, for Group A government servants in the Centre and the States, for members of  the innumerable Tribunals and Commissions that are manned by retired judges and bureaucrats, for corporate sector employees whose annual  salary packages are higher than the lifetime earning of millions of Indian? There is a long, long list of Indians who live privileged lives, and do not need to have LPG cylinders subsidised as well. If the government cannot think of ways and means to withdraw the LPG subsidy from these privileged millions, why does it not throw the issue open for public debate? Is it possible that a nation of 1.2 billion cannot work out an innovative solution to this minor logistical challenge?

Will the  government also explain why it balks at subsidising LPG cylinders for the aam aadmi when it is so enthusiastic about bailing out public sector undertakings that have run up losses on account of inefficiency, poor decision making, corruption etc. Lets take the example of Air India.  The Comptroller & Auditor General of India (CAG) has, in its Performance Review of Air India, made some extremely damaging observations about the role of the Ministry of Civil Aviation in bringing about what CAG describes as the "current critical state of affairs" in Air India. To quote CAG,

The current critical state of affairs of the merged entity “Air India” is a combination of a multiplicity of factors:
(i) risky acquisition of a large number of aircraft with the intention of vastly expanded operations and “footprint”. In the case of the erstwhile AIL, the large acquisition was clearly driven under the influence of the MoCA;
(ii) a liberalised policy on bilateral entitlements for international air travel introduced by GoI. These agreements, besides not affording adequate time to AIL/ IAL to set their houses in order and gear up for a highly competitive environment, very evidently worked to the detriment of the National and Indian private carriers. 
(iii) an ill-timed merger undertaken strangely after separate aircraft acquisitions by AIL and IAL were completed, driven from the top (rather than by the perceived needs of both these airlines), with inadequate validation of the financial benefits from such a merger and without adequate consideration of the difficulties involved in integration (notably in terms of HR and IT, among other areas); 

The government has not ordered an inquiry into these serious allegations of mis conduct ----why would they, when the alleged mis conduct is that of the Ministry of Civil Aviation, including the then Minister, Praful Patel. Instead, they have announced infusion of additional funds, amounting to Rs 30,000 crore, into the airline, apart from a slew of other measures. When asked how long the tax payers' money would continue to be sunk into Air India, the Civil Aviation Minister said " The government will not continue to lose public money like this indefinitely." That's cold comfort, indeed,because tomorrow never comes!So, notwithstanding the CAG report on the mis management of Air India, the culprits remain unpunished, an additional amount of Rs 30,000 crore is invested in Air India, and the citizen is assured that some day (never mind when!), this blatant abuse of tax payers' money will stop.

In the meantime, what can be and has been curtailed is the expenditure on LPG subsidy!

Monday, September 10, 2012

our anachronistic laws

Cartoonist Aseem Trivedi has been arrested and remanded to judicial custody for the alleged offence of sedition. His cartoons are being variously described in the media as "insulting" , "obscene", "ugly', "objectionable" etc.  The aam aadmi is puzzled, because Aseem Trivedi's cartoons reflect the popular sentiment. If he is guilty of sedition, so are lakhs of other Indians.

Is it seditious, then, to express dis satisfaction with the corruption rampant in our democratic institutions? Is it seditious to be incensed by the conduct of our elected representatives who have reduced Parliament to an institution better known for adjournments than discussions and legislative business? Is it seditious to bemoan the erosion of that supreme value "Satyameva Jayate" ? Such would appear to be the case if one is guided by the conduct of the police authorities who have, on the basis of an FIR, arrested Aseem Trivedi although the Code of Criminal Procedure allows them under Section 157 to simply not investigate an alleged offence if it appears to them that sufficient ground for making an investigation does not exist. 

What is sedition? As per the India Penal Code (section 124A), a person is guilty of sedition if by words or by signs or by visible representation, he brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in India. 

The Indian Penal Code clarifies that if one's comments merely express disapprobation of the admin­istrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, or if one's comments express disapprobation of the meas­ures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, then one is not guilty of sedition. The dictionary defines "disapprobation " as "strong disapproval". 

So, we have a situation where the law permits me to disapprove of government measures, either because I wish to simply express my disapproval or because I wish the government to pay heed and alter the measures I disapprove of. However, when I express my disapproval of government measures/action, I must be careful not to sound critical of the government, because I'd then be guilty of  hatred or contempt or disaffection towards the government and hence guilty of sedition. 

To give an example ---- I can say that I do not approve of coal blocks being allotted for a pittance, but I cannot say the government which has made such allocation does not deserve to remain in power ! That's a tough balancing act indeed --- to disapprove of government actions yet be respectful of it, and loyal.

Strangely enough, the Indian Penal Code does not require that a citizen be guilty of disaffection or contempt or hatred against the Indian State or the Indian Constitution to be held guilty of sedition. Hypothetically, a citizen who professes utmost respect for the values and ideals of the Constitution can be held guilty of sedition if he says that the government is guilty of violating those very ideals and values and is therefore not fit to remain in power. In fact, this is what is happening in Aseem Trivedi's case.

Probably, the reason for such a dichotomy lies in the fact that the provisions relating to sedition date back to the 1870s when the government in India was a representative of the British monarch. Therefore, an Indian citizen critical of the government was, ipso facto, critical of the Brtish monarch and his sovereign right to rule over India. We have come a long way since then. Our elected government draws its powers from the people and the Constitution that the people have given themselves. If, by its acts, the elected government is seen to violate the ideals and values of the Constitution or not live up to its promises, the citizen must have the right to criticise the government and not be thrown into prison for that. It is time that we amended the IPC and brought its provisions regarding sedition in line with the times, so that these cannot be abused to stifle freedom of expression, especially when such freedom is used to criticise the government.

Friday, September 7, 2012

Sixty days of dignity

Let me state at the outset that I have had to overcome deep rooted inhibitions before writing this blog post, but I strongly believe that the surest way of getting our nation out of the morass it today flounders in is to educate and empower women, and that conviction has given me courage. I can therefore well imagine the cultural taboos that less fortunate, less educated women struggle against. 

Did you know that millions of women in India use sand, ash and rags during menses, and sometimes spend the entire period locked up in cow sheds? Girls drop out of school once they attain menarche because there are no  sanitation facilities and because they fear being teased by boys. This happens because women are the most marginalized  among India's poorest millions -----  they cannot afford to spend money on sanitary napkins, even if such saving means that they make themselves vulnerable to  disease, apart from suffering the hardship and indignity involved.

For several years now, GOONJ ( http://goonj.org/ ) has been pioneering the effort to make and distribute reusable cloth sanitary napkins to these women. What GOONJ does is to use waste cloth to make sanitary napkins of its own design, and pack them into a drawstring pouch for a women to receive without embarrassment. Used cloth is measured, cut, washed, ironed and sterilised; the packages are then sent to far flung areas of Madhya Pradesh, Orissa, Bihar, UP and other States. This becomes an entry point for generating greater awareness on the related health and hygiene issues, an area that suffers from neglect because of the taboos involved.

This year, GOONJ is trying to make this initiative more broad based; they want to reach the Dignity Pack (affordable, easy to use, and clean cloth napkins, made out of waste cloth) to 50,000 women and girls in villages & slums. In this endeavour, they are looking for support from the urban masses ------ that's you and me. Each contribution of Rs 250 that we make will reach 12 packs of environment friendly GOONJ "Easy" cloth pads and 3 sets of undergarments to a woman, giving her SIXTY DAYS OF DIGNITY. Included in this amount is the cost of  information material, discussions and exhibitions to build awareness on this taboo but critical health issue. Will you please step forward to help GOONJ help at least one woman?

This is how you can contribute towards GOONJ's campaign SIXTY DAYS OF DIGNITY:

1. Direct Transfer

In favor of- GOONJ
Bank Name – HDFC BANK
Account No – 04801450000130
Bank Address – Plot No-9, H & J Block, Local Shopping Complex,
Sarita Vihar, New Delhi-110076
Bank Branch Code – 0480
IFSC Code – HDFC0000480
Bank Swift Code – HDFCINBB

2.  You can also drop a cheque /draft in the name of GOONJ in any  HDFC branch.

3.  Please share your full name, address, tel no. & PAN. For any queries, please call GOONJ at 011- 41401216, 26972351 or write to priyanka@goonj.org

Monday, September 3, 2012

An illuminating chat with Tulsa

Tulsa is the energetic and articulate young woman who enables me to blog at leisure because she sweeps, mops and dusts my home, all the time sharing her joy in her children, the misery and suffering inflicted upon her by her alcoholic husband, and the challenges of living in a tin roofed room that floods when it rains, and is the 4 member family's living-cum-bed room-cum-kitchen. She rarely complains, electing instead to look at life as a journey to be undertaken with as much dignity and integrity as she can command, notwithstanding the huge challenges. A migrant from Madhya Pradesh, she lives in one of the multi storeyed buildings that dot the rural habitations of Gurgaon, and are home to thousands like her who pay handsome amounts to the native inhabitants for the ramshackle  accommodation that they have built expressly for this purpose. She does not have a bank account, no medical insurance or pension account, not even a gas connection despite having lived and worked for many, many years in a city. She is educating her children, but she herself is completely illiterate.  The Parliament, democracy, Municipal Corporation, laws, rights and responsibilities of citizens ----- all these are concepts completely alien to her.

A couple of weeks ago, she did not report for work at her usual hour, nor did she call ---- yes, she has a cell phone! The next day, she was full of the tiring and disappointing journey she had undertaken. At 5 AM, she said, the landlord had asked all the tenants ---men and women living lives just like hers --- to board a bus that took them on a 7 hour journey to an ashram. There, they sat in the sun for the best part of the day, listening to the discourse of a religious leader. Some light snacks were distributed, there weren't adequate arrangements for drinking water, the children got restless and had to be sushed again and again, and then they boarded the bus back home. Where did you go, Tulsa, who was the guru, I asked. She had only some hazy notions. Some place in UP, she said, and the religious leader was a woman, she had something to do with Sikhism. On being prodded, she revealed that the only reason she and her family had joined the massive gathering at the ahsram was that it was an opportunity to do something different, to be some place else, to break out of the deadening routine that is their lot ----and no expenditure was involved.

There are crores of men and women like Tulsa, and crores in circumstances far worse. They live from day to day, are more or less reconciled to merely subsisting since their avenues of advancement are so severely limited, and have no expectation of the government because they have grown up in a state of deprivation ---- physical, social, economic ---- without any State organ stepping forward to help. What is tragic for the nation, and for their own selves, is that they are the ones who vote in large numbers, and bring to power all manner of corrupt, conscience-bereft, power hungry men and women who not only perpetuate the status quo but prevent good people from entering the political process. They vote for pecuniary consideration, they vote for caste/community/religion/language affinities, they vote because the sarpanch directs them to, they vote because the patriarch requires them to ---- but they do not vote with the expectation that the candidate/ party which will come to power will bring permanent, systemic improvements in their lives, and therefore, they do not vote into power men and women who can deliver them and the nation from poverty, oppression, and  injustice. They mostly do not understand how that can happen, they have not seen it happen, and therefore, they have little or no expectation that it will happen. There are honourable exceptions, of course but these are too few in number to have a meaningful impact.

So, if the nation is to break out of the stranglehold of the parasitical political "leaders" whose burden it now carries, we must either motivate and persuade the educated middle class to participate in the political process in massive numbers, or educate the dis empowered/under privileged millions. Its hard to say which task is more daunting, because the middle class is in a comfort induced torpor that the recent corruption scams have barely managed to dent, and the people/organisations engaged in/willing to raise awareness among the impoverished are too few to adequately meet the challenge.