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14 Bills (11 in the Lok Sabha and 3 in the Rajya Sabha) introduced during the Monsoon Session

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LAXMAN PRASAD IN LAWYERSCLUBINDIA

The Lok Sabha passes 13 Bills and the Rajya Sabha passes 09 Bills during the session

 The Monsoon Session, 2011 of Parliament which commenced on Monday, the 1st of August, 2011, concluded on Thursday, the 8th of September, 2011.  The Session provided 26 sittings spread over a period of 39 days.

During the Session, Supplementary Demands for Grants (General) for 2011-12 and the related Appropriation Bill, was discussed and passed by the Lok Sabha. Thereafter, the Rajya Sabha considered and returned the Appropriation Bill.

In Lok Sabha, Motion regarding price rise, calling upon the Government “to take immediate effective steps to check inflation that will give relief to the common man”, moved by Shri Yashwant Sinha was discussed and adopted without voting.

One Bill replacing the Ordinance, namely, the Indian Medical Council (Amendment) Ordinance, 2011 which was promulgated by the President, was considered and passed by both the Houses of Parliament during the Session. Another Ordinance, namely, the Indian Institute of Information Technology, Design and Manufacturing, Kancheepuram Ordinance, 2011 which was promulgated by the President, could not be replaced by an Act of Parliament.

In the Lok Sabha, five Short Duration Discussions under Rule 193 were held on (i)Commonwealth Games, 2010; (ii) Relief and resettlement of Tamils in Sri Lanka; (iii) Setting up of Lokpal and certain events that took place on 16.08.2011 in Delhi; (iv) Widespread corruption in the country; and (v) issues relating to setting up of a Lok Pal.

In the Rajya Sabha, four Short Duration Discussions under Rule 176 were held on (i) Growing incidents of terrorism in the country; (ii) Commonwealth Games, 2010; (iii) Growing incidence corruption in the country; and (iv) Problems being faced by Sri Lankan Tamils. Besides, clarifications were sought on the statement made by Prime Minister on setting up of a Lok Pal.

Besides, 2 Calling Attentions in Lok Sabha and one Calling Attention in Rajya Sabha were discussed.  One Half-an-hour discussion each in Lok Sabha and Rajya Sabha was also discussed.

During the Session, 14 Bills (11 in the Lok Sabha and 3 in the Rajya Sabha) were introduced.  The Lok Sabha passed 13 Bills and the Rajya Sabha passed 09 Bills during the session. A list containing the titles of the Bills introduced, and, considered and passed during the Session is given below:

 

 

LEGISLATIVE BUSINESS TRANSACTED DURING EIGHTH SESSEION OF FIFTEENTH LOK SABHA AND 223rd SESSION OF RAJYA SABHA

(MONSOON SESSION, 2011)

 

I – BILLS INTRODUCED   IN LOK SABHA

 

1.       The Indian Medical Council (Amendment) Bill, 2011

2.       The Lokpal Bill, 2011

3.       The Indian Institute of Information Technology, Design and Manufacturing, Kancheepuram Bill, 2011

4.       The Appropriation (No.3) Bill, 2011

5.       The Damodar Valley Corporation (Amendment) Bill, 2011

6.       The Customs (Amendment and Validation), Bill, 2011

7.       The Benami Transactions (Prohibition) Bill, 2011

8.       The National Academic Depository Bill, 2011

9.       The Land Acquisition, Rehabilitation and Resettlement Bill, 2011

10.   The Nuclear Safety Regulatory Authority Bill, 2011

11.   The Narcotic Drugs and Psychotropic Substances (Amendment) Bill, 2011

 

II – BILLS PASSED BY LOK SABHA

 

1.       The Appropriation (No.3) Bill, 2011

2.       The State Bank of India (Subsidiary Banks Laws) Amendment Bill, 2009

3.       The Transplantation of Human Organs (Amendment) Bill, 2009

4.       The National Institutes of Technology (Amendment) Bill, 2010

5.       The Customs (Amendment and Validation) Bill, 2011

6.       The Indian Medical Council (Amendment) Bill, 2011

7.       The Jawaharlal Institute of Post Graduate Medical Education and Research, Puducherry (Amendment) Bill, 2011

8.       The Indian Institute of Information Technology, Design and Manufacturing, Kancheepuram Bill, 2011

9.       The Juvenile Justice (Care and Protection of Children) Amendment Bill, 2011

10.   The National Council for Teacher Education (Amendment) Bill, 2011

11.   The Academy of Scientific and Innovative Research Bill, 2010

12.   The Orissa (Alteration of Name) Bill, 2011

13.   The Constitution (One Hundred and Thirteenth Amendment) Bill, 2011

 

III – BILLS INTRODUCED  IN RAJYA SABHA

1.       The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Bill, 2011

2.       The Border Security Force (Amendment) Bill, 2011

3.       The Administrators-General (Amendment) Bill, 2011

 

IV – BILLS PASSED BY RAJYA SABHA

1.       The Jawaharlal Institute of Post Graduate Medical Education and Research, Puducherry (Amendment) Bill, 2010

2.       The Appropriation (No.3) Bill, 2011

3.       The Coinage Bill, 2011

4.       The Juvenile Justice (Care and Protection of Children ) Amendment Bill, 2010

5.       The National Council for Teacher Education (Amendment) Bill, 2010

6.       The State Bank of India (Subsidiary Banks Laws) Amendment Bill, 2011

7.       The Transplantation of Human Organs (Amendment) Bill, 2011

8.       The Indian Medical Council (Amendment) Bill, 2011

9.       The Customs (Amendment and Validation) Bill, 2011

 

ORIGIN:  http://www.lawyersclubindia.com/news/14-Bills-11-in-the-Lok-Sabha-and-3-in-the-Rajya-Sabha-introduced-during-the-Monsoon-Session-13334.asputm_source=newsletter&utm_content=news&utm_medium=email&utm_campaign=nl_15_09_2011

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Why the land acquisition bill is flawed

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Cropped from image of Jairam Ramesh the Indian...

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GOPAL KRISHNA IN REDIFF NEWS

The Land Acquisition Rehabilitation and Resettlement Bill 2011 argues for a perfect land market, unrestrained urbanisation and industrialization, says activist Gopal Krishna.

On September 7, Jairam Ramesh introduced the Land Acquisition Rehabilitation and Resettlement Bill 2011 in the Lok Sabha within six days of the end of the public comment period on the bill that is to replace a 116 year old colonial law. This bill argues for a perfect land market, unrestrained urbanisation and industrialisation.

It sounds strange that rural development ministry is working for urban development as if latter is unquestionably the pre-condition for the well being of rural people and their ecosystem. Will the prime minister reveal the role of urban development ministry if what rural development ministry is doing is indeed its mandate?

Will Ramesh explain as to whether what he said as secretary, economic affairs, Indian National Congress remains relevant or not? Ramesh, a representative “of a generation that was created by public investment” and as a key player in developing India‘s 1991 economic reforms said in 2001 that “in 1715 they (India) accounted for 25 percent of world industrial output, so it’s always been an industrial nation in that sense of the term.”

Caught in the time warp and frozen with the contested develop-mentality, corporate fund driven political parties and NGOs are out to decisively put the State and the natural resources on sale unmindful of its cognitive and ecological cost and intergenerational inequity that it promotes almost forever. Both ruling parties and most of the opposition parties are hand in glove in this regard.

These anti-citizen entities are acting as if present and future citizens, gram sabhas, panchayats and zilla parishads do not matter. Their responses to enactment of Special Economic Zone Act, 2005 and its implementation is a case in point.

The Special Economic Zones and land acquisition by companies are about generating financial wealth with naked political patronage at the cost of natural and human wealth. The Land Acquisition Act, 1894 has been useful for it. It is indeed “painfully evident that the basic law has become archaic”. It used to be said that company is an artifact of law, it now appears that law such as this is an artifact of companies. Every act of privatisation of the government through legislations like these is quite painful too.

If that is not the case why should State use its sovereign power to acquire land for companies either partially or fully in the name of industrial and urban development or legislate to facilitate the same? If ‘development’ wasn’t a notorious and negative word why has a benign and positive word ‘sustainable’ pre-fixed to it unmindful of this the bill cites developmental imperatives with the assumption of its innocence.

The argument of Cabinet Committee on Economic Affairs that acquisition of land for industrial and urban development is a necessity — is driven by corporate funding of ruling and opposition parties since 2003 when the ban on company donations was lifted. Clause 59 of the Land Acquisition Rehabilitation and Resettlement Bill, 2011 deals with the provision of ‘penalty for obstructing acquisition of land’ seems to be about punishing the protesters and dissenters.

It reads: “Whoever willfully obstructs any person in doing any of the acts authorised by section 9 or section 15, or willfully fills up, destroys, damages or displaces any trench or mark made under section 15, shall, on conviction before a magistrate, be liable to imprisonment for any term not exceeding one month, or to fine not exceeding five hundred rupees, or to both.” Ramesh argues that this is required because “Land markets in India are imperfect.”

Is it a coincidence that Ramesh who is also a member of the Cabinet Committee on Unique Identification Authority of India related issues has introduced UID provision in Section 10 and 36 of the Land Titling Bill, 2011?

Will CCEA and CCUIDAI reveal all the proposed legislations that are aimed at creating property based democracy?

Can parliament, all its standing committees, state governments and state’s legislative bodies ever exchange notes to unearth the legislative web being woven at the behest of transnational financial institutions before it is too late?

In the backdrop of such unanswered questions, the 70-page LARR Bill has 74 Sections and 3 schedules in its English version to deal with the grievance accumulated since 1894. Clause 69 of the bill deals with the ‘Return of Unutilised Land’.

It reads: “(1) The land acquired under this Act shall not be transferred to any other purpose except for a public purpose, and after obtaining the prior approval of the appropriate government, and any change in purpose made in violation of this provision shall be void and shall render such land and structures attached to it liable to be reverted to the land owner.

(2) When any land or part thereof, acquired under this act remains unutilised for a period of five years from the date of taking over the possession, the same shall return to the land owner by reversion;

(3) The appropriate government shall return the unutilised land or part thereof, as the case may be, to the original owner of the land from whom it was acquired subject to the refund of one fourth of the amount of compensation paid to him along with the interest on such amount at such rate, as may be specified by the appropriate government, from the date of payment of compensation to him till the refund of such amount; and

(4) The person to whom the land is returned being the owner of the land shall be entitled to all such title and rights in relation to such land from which he has been divested on the acquisition of such land.”

Dr Usha Ramanathan, a noted jurist, asks, “What happens when they (the displaced) are unable to buy it back” when the unutilised land is returned. This section permits the transfer of land for another public purpose. This particular clause is not acceptable and has to be removed from the draft bill. Unmindful of widespread concern in the academia and among citizens, the bill has been approved in a tearing hurry by the Union Cabinet which gives rise to valid questions about player behind the curtain in the backdrop of declaration of assets by billionaire ministers.

Schedule I of the bill deals with “compensation for land owners”, Schedule II deals with the “list of rehabilitation and resettlement entitlements for all the affected families (both land owners and the families whose livelihood is primarily dependent on land acquired) in addition to those provided in Schedule I and Schedule III deal with “provision of infrastructural amenities” for resettlement of populations “to minimise the trauma involved in displacement.”

Referring to schedule II, Ramaswamy R Iyer, former secretary, union water resources aptly concludes that “The principle of ‘land for land’ has been abandoned” because it is applied for irrigation projects alone that too with a provision that is inferior to the ones made for the displaced in the Sardar Sarovar Project. The Cabinet Committee on Economic Affairs appears to be under undue influence from the funders of ruling political parties both at the centre and the states to exclude projects for power, mining, flood management, SEZ, urban development and several other ‘multi-purpose’ projects that cause displacement. So far neither the ministry nor the CCEA has responded to it.

The bill fails to address the question of transfer of agricultural land to non-agricultural use and the implications for food security although it does refer to multi-cropped irrigated land but it is hardly sufficient. It seems to be pursuing the path of regressive Bihar Agriculture Land (Conversion for Non Agriculture Purposes) Act, 2010 which is facing bitter opposition especially in cases where widely acknowledged and awarded fertile lands are being acquired for hazardous asbestos factories amidst paid news journalism and studied silence of opposition parties in the state.

If this is the fate of a state government whose head keeps referring to Ram Manohar Lohia’s four tier governance, it is understandable why most of the socialist experiments become an exercise in sophistry. Instead of ensuring that private purchases of agricultural land be subject of state regulation from the point of view of land-use, water-use, soil health and food security, such legislations are indulging in a myopic exercise of according priority to creation of financial wealth at any non-financial cost and risks.

Section 2 of the LARR Bill deal with the definition of the expression “public purpose” includes- (i) the provision of land for strategic purposes relating to naval, military, air force and armed forces of the Union or any work vital to national security or defence of India or state police, safety of the people; (ii) the provision of land for infrastructure, industrialisation and urbanisation projects of the appropriate government, where the benefits largely accrue to the general public; (iii) the provision of village or urban sites, acquisition of land for the project affected people, planned development or improvement of village sites, provision of land for residential purpose to the poor, government administered educational and health schemes, (iv) the provision of land for any other purpose useful to the general public, including land for companies, for which at least 80 per cent of the project affected people have given their consent through a prior informed process; provided that where a private company after having purchased part of the land needed for a project, for public purpose, seeks the intervention of the appropriate government to acquire the balance of the land it shall be bound by rehabilitation and resettlement provisions of this Act for the land already acquired through private negotiations and it shall be bound by all provisions of this Act for the balance area sought to be acquired. (v) the provision of land for residential purposes to the poor or landless or to persons residing in areas affected by natural calamities, or to persons displaced or affected by reason of the implementation of any scheme undertaken by government, any local authority or a corporation owned or controlled by the State”. This definition of “public purpose” or common good to destroys “the distinction between private use and public use”.

In a text “Some notes on the Draft Land Acquisition and Rehabilitation Bill 2011”, Ramanathan states that “The eminent domain power in India is not, and in any event should not be, so wide” wherein an inverted Robin Hood is created which takes from the poor to give to the rich.

The draconian black law of 1894 which is proposed to be replaced in the backdrop of massive bitter opposition to Special Economic Zones and environmentally damaging projects in Jaitapur, Haripur, Ghaziabad, Andhra Pradesh, Tamil Nadu, Karnataka, Bihar and Goa where lessons have not been learnt from the bloodshed and violence in Nandigram and Singur.

The proposal to amend the Atomic Energy Act, 1962 in the aftermath of West Bengal’s denunciation of Haripur nuclear power project in the aftermath of Fukushima and abandonment of nuclear power projects in Germany, Japan and other countries is uncalled for. But strangely, the Nuclear Safety Regulatory Authority Bill, 2011 was introduced on September 7 itself without any public comments on the Bill. Both these Bills should be deferred till it provides for moratorium on acquisition of land for nuclear power projects.

Unlike in US, the Supreme Court of India observed, “The Act, which was enacted more than 116 years ago for facilitating the acquisition of land. However, in the recent years, the country has witnessed a new phenomena. Large tracts of land have been acquired in rural parts of the country in the name of development and transferred to private entrepreneurs, who have utilised the same for construction of multi-storied complexes, commercial centers and for setting up industrial units. Similarly, large scale acquisitions have been made on behalf of the companies by invoking the provisions contained in Part VII of the Act. The resultant effect of these acquisitions is that the land owners, who were doing agricultural operations and other ancillary activities in rural areas, have been deprived of the only source of their livelihood. Majority of them do not have any idea about their constitutional and legal rights, which can be enforced by availing the constitutional remedies under Articles 32 and 226 of the Constitution.”

If the bills are not sensitive to these observations in a context of corporate funding to political parties even if passed by the Parliament, they can be struck down by the apex court as contrary to the Preamble of our Constitution.

Admittedly, there is “asymmetry of power (and information) between those wanting to acquire the land and those whose lands are being acquired” but the role of futures markets in land within India and the land being acquired in African countries does not find any mention. Also “asymmetry of power and information” is acknowledged only to be ignored as if it’s a merely an exercise in lip-service. The bill ignores how acquisition of land affects acquisition of water as well. The ministry has failed to provide a white paper on the impact of 1894 Act since its enactment before independence and after independence. A compensation and rehabilitation regime is needed with “reference not to the nature of the project but to the nature of the impact.”

The parliamentary standing committee on rural development must ask for the status of the total land acquired and the total number of internally displaced persons till the introduction of the Bill in Parliament. Without such a paper and data, the ministry’s rush to get the bill passed is an act in haste which generations to come will repent and it will be considered a monumental failure of Ramesh if he does not undertake rigorous outreach before arriving at a research based decision.

Has his ministry bothered to send this bill to all the sarpanchs and mukhiyas of the country in their language to ascertain its implications and provide suggestions? The passage of the bill in its current shape must be deferred till this is done. The minister can check with his ministry, there is a precedent in this regard, a rural development minister had written such letters to sarpanchs.

This author was shown one such letter in a panchayat at a gram sabha meeting of Mendha Lekha, Dhanora tehsil in Gadchiroli district in July-August 2001. It would indeed be a sad commentary on the ministry and the standing committee headed by Sumitra Mahajan of Bhartiya Janata Party if they fail to genuinely reach out to villages before finalising the bill. The bill must factor in the provisions of Article 243 (G) of the Indian Constitution and Panchayat Extension to the Scheduled Areas (PESA) Act, 1996. It must desist from “forced industrialisation” and forced urbanisation.

This is required to deal with an uncertain future being manufactured by real estate, food and water companies to safeguard agricultural land from being grabbed by powerful national and transnational companies that can undermine parliament, state assemblies, gram sabhas, panchayats, zilla parishads and the government for good by depriving us of our food sovereignty. If our legislature can legislate on land use, water use, land acquisition, rehabilitation, resettlement and land titling with the memory of country’s past share in world trade, it will be acting to restore the sovereignty of our Parliament and ensure that companies of all ilk remain subservient to its legislative will.

ORIGIN: http://www.rediff.com/news/column/why-the-land-acquisition-bill-is-flawed/20110913.htm

 


 

Jan Lokpal Bill and Parliament

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SHANTI BHUSHAN IN THE HINDU

Social activist Anna Hazare having a word with his team members Prashant Bhushan and Shanti Bhushan during the fast for Jan Lokpal Bill at Ramlila Maidan in New Delhi.

Is the Bill within the legislative competence of Parliament? Yes.

All provisions in Anna Hazare’s Jan Lokpal Bill are within the legislative competence of Parliament, including the provisions relating to Lokayuktas in the States. Some confusion is being spread in the media that Parliament cannot enact all the provisions of the Jan Lokpal Bill, particularly those relating to the Lokayuktas in the States, a law for which will have to be enacted by the State Legislatures themselves. Any constitutional jurist would confirm that there is no substance in this impression and that Parliament is fully competent to enact all the provisions of the Jan Lokpal Bill.

Parliament can enact any law if the “pith and substance” of that law is covered by any entry in the Union List or any entry in the Concurrent List. Entry 97 of the Union List is as follows: “Any other matter not enumerated in list 2 or list 3 including any tax not mentioned in either of those lists.”

The effect of this is that unless the pith and substance of the Jan Lokpal Bill falls squarely under any of the entries in the State List, Parliament cannot be denied the legislative competence to enact the provisions of the Jan Lokpal Bill. Even a student of law would tell you that the pith and substance of the Jan Lokpal Bill does not fall under any entry in the State list.

One of the entries in the Union List is entry No.14: “entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries.” Article 253 provides that “Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.” The effect of Article 253 is that even if the pith and substance of an Act is squarely covered by an entry in the State List, even then if the enactment is for implementing a U.N. Convention, Parliament would still be competent to enact the legislation.

As the statement of objects and reasons of the Jan Lokpal Bill would show, the object of the Jan Lokpal Bill is to implement the United Nations Convention on Corruption, which has already been ratified by India (http://www.unodc.org/unodc/en/treaties/CAC/index.html).

The definition of “public official” in the U.N. Convention includes any person holding a legislative, executive, administrative, or judicial office, whether appointed or elected. This is quite similar to the definition of “public servant” in the Prevention of Corruption Act, 1988, enacted by India’s Parliament, which covers all Ministers including the Prime Minister, all judges of the High Court and the Supreme Court as well as all elected Members of Parliament and State Legislatures. Incidentally, it may be mentioned that the Prevention of Corruption Act was enacted by Parliament and not by any State Legislature, even though it is applicable not only to Central government servants but also to servants of the State governments. The main object of the Jan Lokpal Bill is to set up an independent authority as required by the U.N. Convention to investigate offences of corruption by all public servants covered by the Prevention of Corruption Act, 1988.

Entry 1 of the Concurrent List refers to criminal law, including all matters included in the Indian Penal Code. As bribery and corruption were covered by the Indian Penal Code, Parliament had full competence to enact the Prevention of Corruption Act.

Entry 2 of the Concurrent List relates to criminal procedure, including all matters included in the Code of Criminal Procedure. Since the investigation of bribery and corruption was included in the Code of Criminal Procedure, Parliament is fully competent to enact a law to provide for alternative methods of investigation of offences under the Prevention of Corruption Act.

Article 8 (2) of the U.N. Convention requires each state that is a party to the Convention to apply, within its own institutional and legal systems, codes or standards of conduct for the correct, honourable, and proper performance of public functions.

Article 8 (5) further requires the states to establish systems requiring public officials to make declarations regarding their outside activities, employment, investments, assets, and substantial gifts or benefits from which a conflict of interest may result with respect to their functions as public officials.

Article 8 (6) further requires the states to take disciplinary or other measures against public officials who violate the codes or standards established in accordance with the convention.

Article 12 (2) requires the taking of measures for preventing the misuse of procedures regulating private entities, including procedures regarding subsidies and licences granted by public authorities for commercial activities. It further requires the imposition of restrictions for a reasonable period of time on the professional activities of former public officials after their resignation or retirement, where such activities of employment relate directly to the functions held or supervised by those public officials during their tenure.

Article 34 of the Convention requires the states to consider corruption a relevant factor in legal proceedings to annul or rescind a contract, withdraw a concession or other similar instrument, or take any other remedial action. It would be crystal clear to any constitutional jurist that even if the Jan Lokpal Bill had not been for the purpose of implementing the U.N. Convention, all its provisions would be squarely covered by the Union List and the Concurrent List.

While one can understand the anxiety of political parties to somehow attempt to dilute the provisions of the Jan Lokpal Bill by reducing its coverage or to weaken it, they owe it to the people of India not to mislead the gullible people that Parliament is not competent to enact the provisions contained in Anna Hazare’s Jan Lokpal Bill. Even the claim that at the least the States are required to be consulted has no basis at all. The Constitution-makers had foreseen that in a federal or quasi-federal country, the States’ views had to be taken into consideration by Parliament when enacting a law. They had, therefore, provided for the Council of States and a Bill cannot be enacted by Parliament unless it is passed both in the Lok Sabha and the Rajya Sabha. The constitution of the Rajya Sabha provides that each State elects its representatives to this House. Thus all States are represented in the Rajya Sabha. The MPs in the Rajya Sabha are there to represent the views of the states on any Bill that comes before it and there is thus an inbuilt mechanism in the Constitution itself to provide for taking into consideration the views of the States on a Bill that is being enacted by Parliament.

(Shanti Bhushan, a constitutional expert, is a former Union Law Minister and member of the Joint Drafting Committee on the Lokpal Bill.)

Origin: http://www.thehindu.com/opinion/lead/article2430078.ece?homepage=true

Constitution versus Reality in India

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PREAMBLE OF INDIAN CONSTITUTION

India has been surpassing or probably under-passing the vast public upsurge and constitutional multi-interpretations these days.

Our preamble of the constitution says “we the people of India adopt enact and give to ourselves this constitution” and at the same time it’s also said that “the parliament is supreme”. Now the crisis arises, who is supreme? “We the people” or “the parliament (which is elected by we the people)”?
But again, another question arises, who constitutes “we the people”. I? you? They?, who??
Did the crowd of people gathered in Ramlila grounds few days back, or the crowds in various other cities of the country, or the total of them combined, qualify to be called themselves as “we the people”?
May be “yes” may be “no”.
But let’s think again, who was supposed to be “we the people” during the time when this constitution was enacted in India? It will be quite indigestible to accept that the millions of illiterate, poor and starving population, who constituted almost 90 percent of Indian population during the time of enactment of this constitution, were aware of the literatures inside it. The constitution had the sanctity of “we the people” not on it’s technical provisions, but on its moral grounds, of it being designed and compiled by “our government” and not “the British”. Moral beliefs, that this constitution being made by “our” parliamentarians is “ours” and hence will work for our upliftment and empowerment; that this constitution will never defy our rights of living a happy life as the British did.
An extraordinary interpretation of the constitution by the Supreme Court of India said, “The basic structure” of the constitution can not be changed. So a new group of words “basic structure”! What is it? Basic structure refers not to the technical grounds of the write-ups in our constitution, but to the moral grounds of it; and the moral grounds of our constitution refers to the same degree of belief that “we the people” had during the time of its enactment.
The Anna hazare blow, which spread like a jungle fire in India, a few days back, made it very much clear that there is a widespread trust deficit regarding the holiness of our parliamentarians. The declination of the politician’s status has not been sudden, rather episodic. It has not only been the recent exposure of scams that fuelled the masses but also the irregularities prevailing in the government offices since the time our government took over from British.
They called it “the second fight for independence”. Was it?
This mass eruption of public anguish was, in a way, designed and planned by our constitution; after all it was not indigenous, it is a blend of copies of the constitution prevailing in western world, largely USA and UK. Not doubting of the great work of Baba Bhimrao Ambedkar, because it was the only option available with us after the British sucked off the majority of our physical and intellectual resources to the level of starvation. The constitution we adopted was no doubtably a good base for us to start with, but we missed “Indianizing” it sufficiently.
Even though we added directive principles of states policy in our constitution, we have been sluggish in implementing it. Didn’t we miss the level of accountability and cross-interaction of people with governance as it was during The great emperor Ashoka’s reign? Didn’t we miss out the mechanisms to judge the morality, holiness and capabilities of a “mantri”(minister) before assigning him the seat as was mentioned in kautilya’s Arthashashtra? Didn’t we miss the mechanisms adopted by The great Guptas, who almost proved their reign to be in comparison with the reign of The great Lord Ram?
India’s glorious history has not been only gold and diamonds, but much more than it, we told the world how to administer such a large area of land with the highest degree of happiness, faith and trust; and it’s a strange irony today that we ourselves have lost a grip on it.
The British with about 200 years of colonial exploitation tried to flush out all our glorious legacies including gold and diamonds, and embedded a new terminology in our dictionary called “British legacy”. I call it a “British interference”. It’s the result of the same “British interference” which made us loose our links with our glorious legacy of administration.
In my school exam, I once copied an answer from my neighbor’s sheet, the teacher while checking the papers asked me to stand up, gave me my answer sheet and told me to explain the meaning of that answer. Reluctantly i tried to explain it in my words, but was constantly looking here and there in panic and was praying for no cross questions. I am sure I was neither able to understand nor explain completely what I had written.
Is the situation same here? Here in the parliament?
Justice Saumitra sen, being in the middle of the way of his removal through the parliamentary procedures, offers his resignation, leading again to a debate whether to his removal proceedings should still be processed or it should be suspended out? Who knows the answers?
We the people? The parliamentarians? Or the mentors of the original constitution?
Or if no one knows, let’s give it to the Supreme Court to think about what our basic structure of constitution says.
There are laws prevailing in our country which still insist on payment of penalties of some 10 rupees for certain crimes. Who will give an explanation to it? The Supreme Court?

I am afraid it may not.

Is it high time we make a substantial change in our constitutional books and encrypt the basic structure of governance as it was in our legacy?
India is not merely a head count of 1.2 billion people, neither it’s only some thick books of history, nor is it only the 7thlargest landscape in the world. India is in blood of its people, and that blood runs from the great lord ram to Guptas, Marathas, cholas, chalukyas and Mauryas; and Indians will not accept any other form of governance except what they have been offered in the ancient past. The recent mass Indian upsurge with its active interference in parliamentary affairs has yet been an example for it.
Calling it the second war of independence?
It is said, defeating “your enemies” will give you physical independence but defeating the “enemies in you” gives you total independence. So calling it the first war of independence, too holds a strong justification.
But the question still persists, was this rise for a war of independence, or rather a yet another stronger demonstration of the episodic resentment? Will the “British interference” still cast its shadows on our constitutional provisions? Or the gestation period “Indianization” is over?
India will surely and compulsively modify its long hailed constitution to offer the basic structures of it in genuine reality. The time seems close. But may not be close too.
COURTESY: OYE TIMES

Calcutta High Court Justice Soumitra Sen resigns

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JUSTICE SOUMITRA SEN & JUSTICE RAMASWAMY

Justice Soumitra Sen of the Calcutta high court resigned on Thursday, five days before his impeachment motion was to taken up in the Lok Sabha.

“I have put in my papers today,” Justice Sen, against whom the Rajya Sabha has approved an impeachment motion, said.

“I have decided not to go to the Lok Sabha and instead put in my papers,” Sen, who was to have appeared before the Lok Sabha on September 5, said.

In his letter to the President, Justice Sen has said that since Rajya Sabha has decided in its wisdom that he should not continue as a judge, he is resigning and wants to live as a common citizen, his lawyer Subhash Bhattacharya said.

The Rajya Sabha had on August 18 overwhelmingly approved the impeachment motion against Justice Sen. The Upper House made history when it initiated the process against the controversial judge  and when it passed by a majority of 172 votes a motion to impeach Justice Soumitra Sen of the Calcutta High Court for misconduct.

After the motion was passed by a voice vote, Rajya Sabha Chairman Hamid Ansari called for a division.

The electronic voting system showed 189 members in favour or the motion and 17 against it. Of the 207 membes present in the house at the time, one abstained. The law required for the motion to be passed by a two-thirds majority of those present and voting.

He has been held guilty on corruption charges by a specially constituted committee.

Justice Sen was held guilty of misappropriating Rs. 33.23 lakh in a 1983 case. 53-year old Sen is now the second judge against whom impeachment proceedings has been initiated when Rajya Sabha takes up the motion.

The first such case involved the impeachment motion in Lok Sabha of justice V Ramaswami of the Supreme Court in May 1993 which fell due to lack of numbers after Congress members abstained.

The first of the two grounds of misconduct against Sen being cited in the motion is misappropriation of large sums of money, which he received in his capacity as receiver appointed by the high court.

The second ground is that he misrepresented facts with regard to the misappropriation of money before the high court.

 

Rajiv case outcome will settle fate of India’s 18 ‘dead men walking’

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Rajiv Gandhi and R.L.Lakhina

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J.VENKATESAN & VINAY KUMAR in THE HINDU

With as many as 18 clemency petitions filed by death-row convicts or their family members still pending consideration with the Government — some for years on end — the eventual fate of the petition filed by the three condemned men awaiting execution in the Rajiv Gandhi case is bound to have an impact on other prisoners awaiting the gallows across India.

In a plea admitted by the Madras High Court on Wednesday, Perarivalan, Santhan and Murugan said that the eleven years the government took to process and reject their mercy petition made the execution of their death sentence unduly harsh and excessive. Rajiv Gandhi was assassinated in 1991 and the trio, who were convicted of being part of the larger conspiracy, have already been incarcerated for 20 years, mostly in solitary confinement.

The last execution in India was carried out in Kolkata in August 2004, when Dhananjoy Chatterjee was hanged for raping and killing a schoolgirl. Since then, there has been no execution of convicts awarded the death penalty.

According to information furnished by the Minister of State for Home, Mullappally Ramachandran, in the Lok Sabha on August 16, 18 mercy petition cases of death convicts are pending. Though “the power under Article 72 of the Constitution does not contain any limitation as to the time in which the power conferred might be exercised,” the minister asserted that, “As per the orders of the Supreme Court, the cases of mercy petitions are processed expeditiously in consultation with the governments/departments concerned for a final decision of the President of India, under Article 72 of the Constitution.”

The facts, however, speak otherwise.

Mercy petitions are usually filed soon after the Supreme Court rejects the petitions seeking review of the judgment convicting and sentencing the accused to death. Right after the mercy petition is filed, the

President’s office forwards it to the Union Home Ministry for advice by the Council of Ministers. Invariably, delay takes place in the government forwarding its advice to the President. Thereafter, the President decides on the mercy petition based on the government’s advice. Lengthy delays occur there too.

In the case of the three convicts in the Rajiv case, the mercy petitions were sent to the President soon after the review petitions were dismissed in October 1999. It took about five years for the government to convey its decision to the President to reject the mercy plea and six years for the President to accept the advice and pass appropriate orders.

Recently the Home Ministry has asked the President to reject the mercy petition of Afzal Guru, sentenced to death in the Parliament attack case of December 2001. In reply to information sought under the RTI Act by Subhash Chandra Agarwal, the President’s Secretariat said the oldest petition pending with them was from 2005, while six mercy petitions were submitted to her office in 2011 alone.

The petition of Sushil Murmu from Jharkhand, who was convicted of killing a nine-year-old child for a religious ritual, has been pending since 2005. Another case is of Jafar Ali, who is facing the death penalty for murdering his wife and daughters. He applied for the President’s mercy August 21, 2006.

Meanwhile, the RTI reply also said that the President had commuted the death sentences of 10 convicts to life imprisonment following mercy petitions. In 2009 alone, death sentences of seven convicts had been commuted to life imprisonment.

In May, President Patil rejected the mercy plea of Mahendranath Das alias Govinda Das who had severed the head of 68-year-old Harakanta Das, secretary of the Guwahati Truck Drivers Association, in 1996. He was sentenced to death by a sessions court in 1997. Another mercy plea rejected by the President was that of Devinder Pal Singh Bhullar, who has been given the death penalty in a 1993 car bombing case in New Delhi.

During his tenure, President A.P.J. Abdul Kalam decided only two mercy petitions. In 2004, he rejected the plea of Dhananjoy Chatterjee, and in 2006 he commuted convict Kheraj Ram’s death penalty to life imprisonment. President K.R. Narayanan did not clear any mercy petition.

In 2009, the Supreme Court judgment in Jagdish vs State of Madhya Pradesh asked the Centre to decide the mercy petitions expeditiously, preferably within three months. It said the condemned prisoner and his suffering relatives have a very pertinent right in insisting that a decision in the matter be taken within a reasonable time, failing which the power should be exercised in favour of the prisoner and the sentence should be commuted into one of life imprisonment.

A self-imposed rule should be followed by the executive authorities rigorously, that every such petition shall be disposed of within a period of three months from the date on which it is received. Long and interminable delays in the disposal of these petitions are a serious hurdle in the dispensation of justice and indeed, such delays tend to shake the confidence of the people in the very system of justice, the court said.

In July this year, the Supreme Court issued notice to the Centre on a plea by Devinder Pal Singh Bhullar to explain the inordinate delay of several years in deciding the mercy petitions of convicts after the Supreme Court had pronounced its final verdict. The petitioner said, “The power is not merely a privilege but a matter of performance of official duty. The power has to be exercised not only for the benefit of the convict, but also for the welfare of the people who may insist for the performance of the duty and therefore the discretion has to be exercised on public considerations alone.”. The matter is still pending as the Centre is yet to file its reply. However, days after Bhullar filed his petition, his mercy plea — which had been hanging fire for years — was speedily processed and rejected by the Home Ministry and President.

RIGHTS OF AN INDIVIDUAL V/S DUTIES TOWARDS THE SOCIETY

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There is a famous corollary, “Who came first: chicken or the egg?” From this another corollary which draws its way is “What is more important for people to be aware of: Rights or Duties?” Quite often we say that we have certain rights which are incorporated in our Constitution, but forget to realise our duties towards the State. The concept of rights without duties is frivolous and completely vague.

Almost in every State, especially in a Democracy, rights are vested in the citizens; but, in return State expects some duties from its citizens. The person is conceded right to life, right to free speech, right to move freely, right to practise and profess his own religion and what not. In case these rights are infringed, the State also acts as the law abiding guardian of these rights.

In a way, since State is protecting every individual from being maltreated by the other person, it even expects some duties from the citizens also. Like, the citizen is expected to render his services to the State in times of War, to maintain law and order in the State, not to indulge in acts of blasphemy and sedition, we can vote and accept the duty of picking out leaders, etc.

A tussle between the two

However, there is a clash between rights and duties, which an individual has towards the society. People demand more and more and contribute less and less. Rights are being demanded whereas, duties are being forgotten. Duty refers to a sense of moral commitment to someone or something. However, it should be born in mind that a duty-centred society is preferred to right-centred society. In case of a right-centred society, individuals are only concerned about their individual rights and not about their duties.

In this tussle of rights and duties, rights pre-dominate over duties. Rights are vested in an individual by the State, whereas most of the people try to derelict their duties. We have a duty to vote during elections, but how many of us really go out in the scorching heat of the sun to vote, how many of us stand unanimously in times of war, how many of us follow the traffic rules, and list is endless.

The biggest disadvantage in India is that most of the people are not even aware of their rights.  When you don’t demand, how can you expect anything in return! Before we expect everyone to realize their duties, it’s imperative that we make them aware of their rights. One of the good ways is to get the under-privileged aware of their rights and the privileged ones aware of their duties. Unfortunately what happens most of the times is just the opposite!  It’s true that it’s not possible to objectively state what comes first-Rights or Duties. But unless we have our hands filled with something, what can we give away.

“Rights! There are no rights whatever without corresponding duties.” 

       –Samuel Taylor Coleridge