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Indian courts can try offences committed by Indian in foreign country, rules Bench

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PUBLISHED IN THE HINDU

But prior consent of Central government (under Section 188 Cr.P.C.) is required

A dowry or any other offence committed by an Indian husband against his wife in a foreign country can be tried by a court in India, the Supreme Court has held.

A three-judge Bench of Justice Altamas Kabir, Justice Cyriac Joseph and Justice S.S. Nijjar said “the provisions of Indian Penal Code have been extended to offences committed by any citizen of India in any place within and beyond India by virtue of Section 4 thereof.”

The Bench, however said that offences committed by an Indian citizen in a foreign country would be amenable to provisions of IPC subject to the limitation imposed under Section 188 Cr.PC, viz seeking the prior consent of the Central government.

In the present case, the appellant Thota Venkateswarlu was married to Parvatha Reddy Suneetha in November 2005 as per Hindu traditions and customs in Ongole in Andhra Pradesh. At the time of marriage Rs. 12 lakh in cash, 45 sovereigns of gold and Rs. 50,000 as ‘Adapaduchu katnam’ was alleged to have been given to the husband, mother-in-law, and other relatives of the husband.

According to Suneetha, her husband left for Botswana in January 2006 and she later joined him. While in Botswana, she was allegedly severely ill-treated and various demands were made including a demand for additional dowry of Rs. 5 lakh. Unable to withstand the torture she sent a complaint to the Superintendent of Police, Ongole for dowry offences under IPC as well offences under the Dowry Prohibition Act.

The magistrate, to whom the complaint was forwarded took cognisance and issued summons to the husband and others, who were questioned on their arrival to India. While the Andhra Pradesh High Court quashed proceedings against the appellant’s mother and two others, it dismissed his plea. The present appeal by Venkateswaralu is directed against this order.

The appellant’s wife argued that part of the offence relating to dowry was committed in Indian soil and part of the offence was committed abroad. Hence the offence could be tried in Indian courts. However, the appellant argued that he could not be tried without the previous sanction from the Central government.

Writing the judgment Justice Kabir pointed out that it was clear that the case relating to the alleged dowry offences were committed outside India. But since part of the offence was committed in India, the court here could try the appellant and the High Court was correct in rejecting his plea to quash the proceedings. The Bench while asking the trial court to take up the case said, the trial would not proceed without the sanction of the Central government as envisaged in Section 188 Cr.P.C.

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

Half a victory

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Abhishek Manu Singhvi, Indian politician, spea...

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VENKITESH RAMAKRISHNAN  IN THE FRONTLINE

Team Anna wins the first round, but the way ahead in the fight against corruption is full of uncertainties.

“A BATTLE has been won in the campaign for cleansing public life through the rallying of vast sections of people across the country. But a purposive piece of legislation has finally to be passed by Parliament even to rate this victory as truly meaningful. Indeed, the state of peace that has descended after the tumult is pregnant with uncertainties. Uncertainties of such dimensions that no one has a clue as to what this will ultimately deliver.” These words spoken by a key player in the negotiations between Team Anna and the United Progressive Alliance (UPA) government during the tumultuous 12-day fast undertaken by Anna Hazare, which rocked the national capital and most other parts of the country, sum up the mood prevailing among individuals and groups that would play a role in the drafting and passage of a new Lokpal Bill. The government, the big and small opposition parties with representation in Parliament, Team Anna and various other institutions and bodies that have come up with suggestions on the proposed Bill, such as the Aruna Roy-led National Campaign for People’s Right to Information (NCPRI) and the Udit Raj-led Justice Party, all share these uncertainties and the lack of clarity about the future.

At the moment, of course, the prime mover is the Standing Committee of Parliament, chaired by Congress leader Abhishek Manu Singhvi. The committee is expected to take up and initiate negotiations on the various proposals from different sides sometime in September itself. Central to these negotiations are the three points on which Parliament expressed its sense-of-the-House agreement in response to Team Anna’s demands. The sense-of-the-House resolution stated that the issues of “Citizens’ Charter, Lower Bureaucracy also to be under the Lokpal through appropriate mechanism, and establishment of Lokayuktas in the States” would be taken up by the Standing Committee. This process itself has historic dimensions because it is for the first time that the members of the Standing Committee will be discussing the provisions of an already introduced government Bill in response to a sense-of-the-House resolution suggesting incorporation of new provisions.

The mainstream political parties and Team Anna expect this process of the Standing Committee to be completed before the winter session of Parliament. On their part, both Union Finance Minister Pranab Kumar Mukherjee, who emerged as the most important player on the government side during the latter stages of the anti-corruption agitation, and Anna Hazare himself have come up with public postures that have signified a sense of caution and accommodation, which in turn is considered conducive to the smooth conduct of deliberations. In repeated comments to the media after Anna Hazare concluded his fast on August 28, Mukherjee made it clear that the government had bowed before people’s power and its genuine representative leader. Anna Hazare responded by agreeing that there was a lot more to be done peacefully to take the negotiations to the level of fruition. Asserting that “this is only half a victory”, he said he was confident that Members of Parliament would not go back on their word to provide “an effective and strong Lokpal”.

While this sense of accommodation and optimism bodes well for deliberations in the future, large sections of public opinion still harbour apprehensions as to how things will unfold. Speaking to the media immediately after Anna Hazare ended his fast, Infosys founder V. Narayana Murthy hailed the ‘in principle’ agreement of Parliament to the demands put forward by Team Anna but added that it was only the first step. “We have to go through the process of implementation and take it to success. And that is the toughest part. For implementation is the Devil.”

According to Professor Nil Rattan of the Patna-based A.N. Sinha Institute of Political Studies, the apprehensions about implementation have arisen essentially on account of the very track record of the players involved in the process. “Both sides have shown intransigence at different times. While the government has bumbled about from one mistake to another for long spells while addressing the issue, Team Anna had initially taken the obstinate position that nothing short of its version, the Jan Lokpal Bill, would do. The present atmosphere for deliberations could be arrived at only because the government rectified some of its mistakes and Team Anna was ready to come down on some of its demands like bringing the higher judiciary under the ambit of the Lokpal. What is the guarantee that this will stand? Who knows whether sections of the government will embark on some adventurist path again,” Nil Rattan told Frontline.

Indeed, the UPA’s track record in handling the early days of Anna Hazare’s August agitation is pathetic. Almost every section of the government, starting with Prime Minister Manmohan Singh, kept on making mistakes. Interventions by Home Minister P. Chidambaram and Telecommunications Minister Kapil Sibal made matters worse. Finally, Congress general secretary Rahul Gandhi contributed his mite to the rank confusion in the ruling establishment. These mistakes were in many ways directly proportional to the rising popularity of Anna Hazare.

Undoubtedly, the biggest mistake was the imprisonment of Anna Hazare on August 16, that too in Tihar jail, where people like Suresh Kalmadi and A. Raja, who were arrested on charges of corruption, are incarcerated. Subsequently, an official spokesperson of the Congress classified Anna Hazare as a “top to bottom” corrupt person.

Interestingly, the decision to take Anna Hazare to Tihar jail was made in an apparent effort to keep him away from the crowds. The political bosses and the administrative-bureaucratic leadership, especially of the Home Ministry, had reportedly considered different options, such as placing him in a government or private guest house or moving him out to Ralegan Siddhi (his hometown in Maharashtra), but finally decided against all these, fearing that his supporters would gather in front of the guest house or at Ralegan Siddhi. Informed sources said that they finally decided to shift him to Tihar because it was thought that the jail would not be accessible to Hazare’s supporters. But what happened was the exact opposite. Crowds gathered at Tihar in big numbers, forcing the government to order his release.

In the days following his release, and during the fast undertaken by him at the Ramlila Grounds, Anna Hazare was perceived as the symbol of all that is positive in society and in many ways the one-stop solution for all social problems. Various organisations, such as sections of the Rashtriya Swayamsewak Sangh (RSS)-led Sangh Parivar and non-governmental organisations of different hues and patterns of funding, pitched in for crowd mobilisation. Cumulatively, the impact of genuinely inspired participation and motivated organisational mobilisation resulted in massive crowds at the maidan.

Meanwhile, the government made another faulty move: it stated that Parliament cannot give up its supremacy. This when it had undermined Parliament in April by calling Team Anna to draft the Lokpal Bill and keeping the opposition parties out of the drafting committee. While this move was made by the Prime Minister, Rahul Gandhi made a facile attempt to score some brownie points through an intervention in Parliament highlighting the same supremacy-of-Parliament position.

Ultimately, it required the intervention of some youth power from the government side itself to untangle the mess that senior politicians such as Manmohan Singh, Chidambaram and Sibal had created. It was through the good offices of a young Delhi MP, Sandeep Diskshit, that the government built channels of communication with Team Anna and managed to bring about a solution. To start with, Dikshit’s intervention was followed by an appeal from Manmohan Singh to Anna Hazare to withdraw the fast. He made this appeal even while crediting Anna Hazare with valid slogans representing the people’s aspirations.

However, in the euphoria created by this collection of crowds day after day, shrill voices questioning the very legitimacy of political processes and leaderships were heard from the Ramlila podium – from Team Anna leaders including Anna Hazare, Kiran Bedi and Arvind Kejriwal, and supporters such as the actor Om Puri. The campaign was such that it sought to raise visions of an apolitical leadership replacing politics in the country. Voices like those of the social activist Swami Agnivesh, which emphasised the need to accord validity to political leaderships and elected representatives, were fiercely criticised by the volunteers of Team Anna and by sections of the crowd. Agnivesh’s comment that Hazare ought to have responded positively to Manmohan Singh’s appeal was targeted for special vitriolic treatment by many of Team Anna’s supporters.

Despite this, the government persisted with its efforts at negotiation. It was in this process that Pranab Mukherjee’s role came to the fore, even though Chidambaram and Kapil Sibal continued to argue that a tough line would ultimately compel Team Anna to compromise. This tussle on strategy reflected in a different manner within Team Anna too. Though voices like those of Swami Agnivesh had been sidelined, there also developed an impression that Kejriwal and Kiran Bedi were pushing things to the brink. A group within Team Anna, including senior lawyer Prashant Bhushan, took the lead in meeting a number of political leaders, particularly in the opposition BJP and the Left. These initiatives were supplemented by the Mukherjee-led negotiations.

Gradually, sections of Team Anna that had raised a rant against the political class as a whole had to listen to the less aggressive sections. And, it was this that finally led to the discussion of Anna’s demands in Parliament and the final passage of the resolution.

Notably, when Anna Hazare’s fast was withdrawn on August 28 following the passage of the resolution, Kejriwal made it a point to underline the fact that at no point of time had Team Anna sought to denigrate the entire political class as corrupt. While this was sought to be presented as a clarification, many observers perceived the effect of a corrective reverse pressure in this statement.

The passage of the resolution in Parliament and the acknowledgement of Anna’s agitation methods by parliamentarians have evoked high praise, especially from sections of the media, some of whom have described the agitation as the most phenomenal people’s movement to have happened in the history of independent India. In fact, some commentators have even gone to the extent of suggesting that there could be a classification of national politics as pre-Anna and post-Anna phases.

While it is true that the agitation and the fast touched an emotive chord in large sections of the people, including the middle class which has never participated actively in political initiatives, the fact remains that many other movements, ranging from the struggle for land reforms to the empowerment of Dalits, have had more lasting historical impact on Indian society.

Professor Sudhir Panwar, an Uttar Pradesh-based social activist associated with the Kisan Jagriti Manch, who supported the Anna Hazare agitation as a significant effort to initiate a new democratic discourse in the country’s political system, also pointed out that the increased participation of the middle class had helped get enhanced media attention to the movement compared with other grass-roots initiatives such as those of farmers and agricultural workers.

“The fact is the issue of corruption, especially corruption by the political class, is so pervasive and the fight against it has such widespread resonance that even those who have never thought of the country and its people in a larger sense joined in,” he said.

Panwar pointed out that the middle class, which had assiduously kept away from politics and refused to respond to phenomenal political developments such as the demolition of the Babri Masjid and the Gujarat riots of 2002, was triggered into action on political and other forms of corruption also because of the global economic crisis and its impact on day-to-day life.

Panwar emphasised that the leaders of Team Anna should use this opportunity to broadbase the movement with a larger understanding of other social issues and an earnest incorporation of other social movements. “Only then will this have a lasting impact,” he stated.

Naturally, this would involve adopting a more open approach to issues such as the demands of Dalits and backward classes in relation to the Lokpal and looking at broader issues such as the impact of neoliberal policies. Team Anna has announced its resolve to continue struggles in new areas such as electoral reforms, which will include the right to recall and the right to reject legislators. It has also stated that it will strive for decentralisation of power through the greater empowerment of gram sabhas and mohalla sabhas.

A one-line overview of the national political situation in the context of the agitation and the related developments was provided by Pranab Mukherjee when he said, “We are at a crossroads.” It was with this phrase that Mukherjee began his speech marking the beginning of the August 27 debate in Parliament on the Lokpal Bill.

Clearly, as the statement implies, it is time to move with caution to enhance the democratic content of the nation and its institutions and systems. It is a message that applies equally to the largely discredited and beleaguered political class as also to the new civil society players who have had a modicum of success in initiating a corrective process.

And exactly because of this success, Team Anna needs to be extra cautious in what it preaches and practises. For, the hallucination among some of its leaders that India is Anna and Anna is India militates against the very concept of democratic discourse.

It is a long journey ahead: Kejriwal

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ARVIND KEJRIWAL

‘We want to pressure the government and assert our rights as citizens.’

Arvind Kejriwal received the Magsaysay award in the Emergent leadership category in 2006. A mere five years later, he has far surpassed that milestone, winning acclaim and notice for the way he conceived and crafted Anna Hazare‘s anti-corruption movement. He talks to Vidya Subrahmaniamabout the Jan Lokpal campaign, what it accomplished and why it often became controversial.

The scale and spread of the Anna movement have baffled many. How did this happen?

A movement cannot be created out of nothing. In this case, anger against corruption was at the point of eruption. Then two things happened. One, instead of merely echoing the anger, the Jan Lokpal Bill (JLB) offered a solution. Second, Anna emerged as a credible leader at a time of huge leadership crisis in politics. See, people did not understand the details of the JBL. They simply saw it as a “dawai” [medicine] for corruption. It is the combination of a solution and a figure like Anna — who lived in a temple with no assets — that clicked.

When we conducted referendums on the JLB, we used to try and explain its contents to people. But they said they did not want to understand the details. They just wanted to put a mohar [stamp] on Anna.

How did you communicate your message to such a large number of people?

Technology played a key role in this. When in January this year, India Against Corruption (IAC) member Shivendra suggested to us that we use Facebook to publicise our rallies, I dismissed it saying Facebook has a limited, urban following. But Shivendra went ahead. We had planned a single rally on January 30 at the Ramlila Maidan. But because we connected on Facebook, we were able to conduct simultaneous rallies in 64 cities. SMS texting also played a critical role. Our SMS communication was designed very intelligently. A company in Mumbai suggested we ask for missed calls as a mark of solidarity. Missed calls cost nothing. In March, we sent out two crore SMS messages and got 50,000 missed calls. Then we targeted the 50,000 callers, asking if they would like to enrol as volunteers for IAC. Initially 13 people responded. We sent two more rounds of messages to the 50,000 callers. And in just one week, the number of volunteers swelled to 800.

Surely television played a disproportionate role in projecting the movement.

TV certainly helped, both when Anna sat on a fast at Jantar Mantar and then at Ramlila Maidan. But the media cannot create a moment. They can at best magnify it. The crowds at Ramlila and the crowds that followed him when he left for Medanta hospital were not manufactured.

There have been reports of dissensions within the Anna camp. Also that the deadlock was broken only because Congress/government negotiators spoke directly to Anna.

Anna appointed Kiran Bedi, Prashant Bhushan and me to negotiate with the government. One day I was very tired and Kiran was also not around. So, Medha and Prashant went for the meeting. The next thing we hear [from the media] is that Kiran and I have been sidelined, that we are hardliners, and we are deliberately preventing Anna from breaking his fast. This was disinformation by the government.

You started with the maximalist position of “Jan Lokpal Bill by August 30 and any amendments only with Anna’s permission.” From that to accepting a “sense-of-the-house” resolution that was not voted upon — wasn’t it a climbdown?

When we started on August 16, there was such an overwhelming response that we thought the government would agree to our demands. People wanted the JLB. After a few days we realised that there was a serious leadership crisis in the government — negotiators were constantly backing off. In the last three days of the fast, it happened four times. The Prime Minister made a conciliatory statement, Rahul Gandhi went off on a tangent. Salman Khurshid, Medha and Prashant sat together and drafted a resolution. Next day [August 27], at 1.30 p.m., Salman said no resolution. It became clear to us that what we wanted — Parliament voting on a resolution containing Anna’s three demands — was not going to happen. Therefore we had to change our strategy.

Are you satisfied with the resolution that was adopted? It is not categorical and leaves escape clauses.

We are satisfied because it contains Anna’s three demands. It will not be easy for the Standing Committee to renege on Parliament’s commitment. We will be keenly watching the Committee’s proceedings and the MPs also ought to know that they are on watch. I know, of course, that it is a long journey ahead.

Kiran Bedi told a TV channel that at one point when all seemed lost, a miracle happened: L.K. Advani called her and gave her his word that a solution will be reached by the following evening [August 27]. She also said that the Bharatiya Janata Party, which until then was ambiguous on the JLB, changed its stand and offered full support to Anna.

We met the leaders of the main political parties thrice and as part of this we also met Mr. Advani. However, we have been clear that no BJP leader or leader of any communal organisation will share the stage with us. This is the decision of our core committee. As for Kiran talking about Mr. Advani, please put that question to her.

So are you an apolitical movement?

No, we are political but we are concerned with people’s politics. The movement will always remain outside of political parties and outside of electoral politics.

You will not float a political party?

No, never. We don’t need to get into the system to fight it. We want to pressure the government and assert our rights as citizens. Everyone who has a dream need not get into politics.

Doubts have been raised about the credentials of those who have donated money to IAC. Sometime ago, a citizens’ group from Hyderabad wrote to you saying it was shocked to see some very discredited names in your list of donors.

A number of people have contributed money to the Anna movement. There is complete transparency from our side. Our receipts and expenditure are transparent. But we have no mechanism to go into the antecedents of our donors. And donations are streaming in, making it impossible to keep track. If there is a glaring case, we will certainly investigate it. I know, for instance, that there has been talk of the Jindal group. But those who donated to IAC are from Sitaram Jindal, not the Jindal mining group.

Your entire fight is about transparency and accountability. One of your NGOs, Public Cause Research Foundation, received donations on behalf of IAC and issued receipts in its name. But until August 29, there was no mention of Anna or the donations on the PCRF website.

That is an oversight. We will immediately update the website and provide a link to IAC.

Another of your NGOs, Kabir, received grants from the Ford Foundation (FF). According to the FF, Kabir received $172,000 in 2005 and $197,000 in 2008. The FF also sanctioned an “in-principle” grant of $200,000 for 2011, which you have not accepted so far. Why does Kabir not mention the FF and these specific details on its website?

We did not give the specific details because we also got some other NRI contributions and these were clubbed together. I will make sure that the website gives the break-up.

Fears have been expressed about the form of mobilisation we saw over the last four months. There was anger and impatience and, some would say, coercion in your methods. During the Ram Rath yatra, too, the BJP said people were angry because the mandir had not been built for 40 years. Aren’t you setting a worrying precedent?

The two situations are not comparable. One was communal and divisive and went against the grain of the Constitution. We are not asking for anything illegal. Our demands resonate with the people and our movement has been unifying, non-violent and entirely within rights given by the Constitution. What is wrong if people demand a strong law against corruption? What is wrong if they ask for the Jan Lokpal Bill?

Why did you ask for Parliamentary due process to be suspended? You didn’t want the JLB to go to the Standing Committee.

The JLB was drafted after wide consultations; it underwent many revisions based on feedback. Where is this kind of discussion in the drafting of anysarkari Bill? The purpose of the Standing Committee is to take multiple views on board. But not all Bills reach the Standing Committee, and in 90 per cent of the cases, the government does not accept the Committee’s recommendations. So why the fuss only for JLB which has been widely discussed and debated?

COURTESY: THE HINDU

Significant victory

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Manmohan Singh, current prime minister of India.

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Parliament’s unanimous adoption of a resolution agreeing “in principle” with Team Anna’s position on the three sticking points that prolonged the standoff on the Lokpal legislation is a triumph for the anti-corruption mood in the country — and for the Gandhian technique of non-violent mass agitation on issues of vital concern to the people. Anna Hazare and his team deserve full credit for recognising and riding this popular mood, which showed plenty of signs of becoming a wave; for giving concrete shape to the inchoate aspirations of the movement against corruption through the provisions of the Jan Lokpal Bill; and for working out a strategy and tactics that refused to compromise on the core issues but knew when to raise the stakes and when to settle. As for the political players, the major opposition parties did well to recognise the soundness of the core demands of Team Anna and keep up the pressure on the government. Prime Minister Manmohan Singh and the politically savvy elements in the United Progressive Alliance regime can also take some credit for the way they finally acted to resolve this crisis.

What is clear to everyone — except the unreconstructed elements within the political system who have long been opposed to a strong, independent, and effective statutory authority to go after corruption at all levels — is that the Lokpal Bill that was introduced in Parliament by the government and is now before a Standing Committee lies thoroughly discredited. The government must not be guided by those in its ranks who advocate some kind of rearguard action in committee or on the floor of the House to go back on commitments made. The fact is that in sum, that is, in the parliamentary resolution and during the preceding rounds of discussion with Team Anna, the government conceded the following key demands. In addition to Ministers, Members of Parliament (subject to Article 105 of the Constitution), and Group ‘A’ officers, the Prime Minister at one end and the lower bureaucracy at the other will be brought under the jurisdiction of the Lokpal. Secondly, under the same statute, strong and effective Lokayuktas on the same model as the Lokpal will be established in all States. Team Anna contends that no constitutional problem is involved here since the Lokpal legislation deals with substantive and procedural criminal law, which is covered by Entries 1 and 2 of the Concurrent List in the Constitution. The bottom-line is that it makes no sense to have a strong and effective Lokpal to investigate and prosecute central public servants for corruption while having defunct or no Lokayuktas in States. Thirdly, the Lokpal legislation will provide for a grievance redressal system, requiring all public authorities to prepare a citizen’s charter and make commitments to be met within a specified time frame. Constitutionally speaking, these arrangements are covered by Entry 8 of the Concurrent List dealing with actionable wrongs. Whether the Lokpal or another authority established under the same law will oversee this grievance redressal system remains an open question. For its part, Team Anna has agreed that judges need not come under the Lokpal provided a credible and independent Judicial Conduct Commission, free from conflict of interest and empowered to investigate and prosecute charges of corruption against judges, is established by law. Unfortunately, the contentious issue of a selection committee for the Lokpal could not be resolved. But considering that virtually everyone outside the UPA seems opposed to the official Lokpal Bill’s provision that the government will nominate five of the nine members of the selection committee, this can probably be regarded as a dead letter.

There are some excellent provisions in the Jan Lokpal Bill that have gone mostly unnoticed. For instance, Section 6(o) provides that the Lokpal can recommend the cancellation or modification of a lease, licence, permission, contract or agreement obtained from a public authority by corrupt means; if the public authority rejects the recommendation, the Lokpal can “approach [the] appropriate High Court for seeking appropriate directions to be given to the public authority.” It can also press for the blacklisting of those involved in acts of corruption. Then there is Section 31(1), which stipulates that “no government official shall be eligible to take up jobs, assignments, consultancies, etc. with any person, company, or organisation that he had dealt with in his official capacity.” Section 31(2) provides that “all contracts, public-private partnerships, transfer by way of sale, lease, and any form of largesse by any public authority shall be done with complete transparency and by calling for public tender/auction/bids unless it is an emergency measure or where it is not possible to do so for reasons to be recorded in writing.” And Section 31(3) requires that “all contracts, agreements or MOUs known by any name related to transfer of natural resources, including land and mines to any private entity by any method like public-private partnerships, sale, lease or any form of largesse by any public authority shall be put on the website within a week of being signed.”

In appraising what has happened over the past fortnight, a red herring needs to be got out of the way — the idea of the ‘supremacy of Parliament‘ versus everyone who comes up against it. Parliamentarians who assert this need to learn their Constitution. In India, unlike Britain, Parliament is not supreme; the Constitution is. Nor is law-making “the sole prerogative” of Parliament. The significant victory of the anti-corruption campaigners gives political India a rare opportunity to translate fine anti-corruption sentiments into a potent law that can be a game-changer. The challenge before the people of India is to ensure, by keeping up the pressure, that in the tricky business of law making in committee and on the floor of the Houses of Parliament a potentially powerful instrument is not blunted.

COURTESY: THE HINDU

Jan Lokpal Bill: Need serious consideration on Anna’s three conditions, says Pranab

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Pranab Mukherjee, Indian politician, current F...

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Observing that the nation was at “cross-roads” in view of Anna Hazare’s campaign, government today asked Parliament to consider the Gandhian‘s three key demands on Lokpal Bill within Constitutional framework and by preserving Parliament’s supremacy.

Making identical statements in Lok Sabha and Rajya Sabha to form the basis for a debate, Finance MinisterPranab Mukherjee said the issues raised by Hazare are “important” and “genuine” which “deserve our serious consideration”.

As Hazare’s fast entered 12th day, Mukherjee said the situation was “moving out of hand” and “crisis” had been created as he asked lawmakers to “seize the moment and demonstrate the commitment” in dealing with corruption which is “gnawing at the vitals of our polity”.

He said Parliament needed to discuss (i) whether the jurisdiction of the Lokpal should cover all employees of the Central government, (ii) whether it will be applicable through the institution of the Lok Ayukt in all states, and (iii) whether the Lokpal should have the power to punish all those who violate the ‘grievance redressal mechanism’ to be put in place.

These are the aspects that Hazare and his team are demanding to be included in the Lokpal Bill.

“In case a consensus emerges at the end of the discussions, the Standing Committee will, in the course of their deliberations, take into account their practicability, implementability and constitutionality.

“For, everything that we do, must be consistent with the principles enshrined within our Constitutional framework,” Mukherjee said.

Mukherjee wanted Lok Sabha to consider whether Lokpal should have power to punish those who violate ‘grievance redressal mechanism’.

“The standing committee can take up their practicality, constitutionality and implementability,” Mukherjee said.

In the Rajya Sabha, Pranab said that the issues on which Hazare is agitating are genuine. Mukherjee said situation created by Hazare’s agitation is “moving out of hand” and crisis has been created.

Team Anna and the government held another round of talks here today to end the deadlock over the Lokpal Bill prior to the debate on the issue in Parliament.

Team Anna members Prashant Bhushan and Medha Patkar met Law Minister Salman Khurshid here and discussed issues which the government could take up in Parliament during the debate.

“Only thing that has been discussed is what will come up before Parliament…we have already give Anna’s letter to him,” Patkar told reporters after the meeting.

Noting that dialogue between both sides was on, she said Hazare and his team have not gone back on their three key demands — all civil servants should be brought under Lokpal, a Citizen Charter should be displayed at all government offices and all states should have Lokayuktas.

“We are still on the same three points, which really matters. The government is responding. Now it is not only the government, it is also the opposition parties. All are positive about the process,” she said.

She said every MP is concerned about Anna’s health. The agitation will continue as has been made clear by Anna. There is no question of ending the protest, she added.

Fasting Anna Hazare today broke his silence of nearly 38 hours and addressed his supporters declaring that he will continue his protest till his last breath for a strong anti-corruption law.

Amid mounting worries over the 74-year-old Gandhian’s health, Hazare said he could fast for another “three-four days” and “nothing will happen to him”.

Hazare, who did not address his supporters since 8 pm on August 25, emerged on the dais at around 10 am to a loud cheer from supporters who raised slogans of ‘Bharat Mata ki Jai’, ‘Vande Mataram’ and ‘Inquilab Zindabad’.

“I am not doing this for my personal gain. If it was so, I would not have lasted five days. Till Jan Lokpal Bill is passed, my protest will continue,” the Gandhian told his supporters at Ramlila Maidan where he is sitting on a fast.

He said he was getting energy from those who are coming out in support of the cause and this energy will help him sustain for three-four more days. “Till Jan Lokpal Bill is passed, I won’t die,” he said in his speech that lasted for five minutes.

Hazare said he was surprised at the manner in which the country has responded to his call while referring to a person who was sporting a tattoo on his shoulder that stated that he was the supporter of the Gandhian.

“I am surprised that a ‘fakir’ is getting this support. It is not me who is doing all this. God has pointed fingers at me. He has chosen me to do the work. It is he who is doing all this. I am praised for what I am doing. A ‘fakir’ should not be praised so much,” he said.

COURTESY: THE ECONOMIC TIMES

Why Indian Corruption Is a Global Security Concern

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India is in the throes of what some are calling a “second freedom struggle.” Across the country, citizens are on the streets, in the courts and on theinternet, fighting to break corruption’s chokehold on the nation. It is a critically important battle, not only for the future of India, but for global security — corruption in India enables some of the world’s most dangerous terrorist networks.

The reason is, illegal money needs illegal methods to move it around. And the amount of corruption-generated money flowing through India is vast. According to Interpol: “In South Asia, the ‘black’ or parallel economy is 30 percent-50 percent of the ‘white’ or documented economy.”

In terms of Indian political corruption, the 2011 2G-spectrum scandal alone is estimated to have lost Indian taxpayers close to $40 billion. And, as soon as the money needs to cross borders, say to get to a Swiss bank account where it can be washed clean, an Indian politician on the take goes from being a national security concern to a global security concern.

Hawala Networks

That is because a preferred method of transferring illegal money is called hawala. A very simplified version of how the hawala system works is shown below in a graphic from INTERPOL. Say Abdul in New York wants to transfer $5000 to his brother Mohammed in Pakistan. Abdul would go to a local New York hawala trader and give her $5000 cash. The New York trader would then call her colleague in Pakistan and instruct him to pay $5000 cash (in local currency) to Mohammad. And that’s it.

 

2011-08-19-HawalaINTERPOL.jpg 

The Pakistan trader might get the money back from the New York trader through money transfers the other way, by doctoring invoices using participating import/export companies or other methods. In the meantime, Abdul sent the to money to Mohammad in hours and there is no official trace of the transaction.

From a criminal perspective the advantages of hawala are:

  • No paper trail.
  • No taxation.
  • No customs declarations.
  • Often preferential exchange rates.
  • Money laundering.
  • Due to the illegal nature of the process, the people transferring money (in this example Abdul and Mohammad) are now open to blackmail, giving the hawala traders and their associates leverage over their clients if needed.

For hawala to work, there has to be a high level of what Interpol calls ‘trust’ between the hawala traders. With hawala, that ‘trust’ is often guaranteed by brutal enforcement. If the money disappears en route, the hawala trader involved is likely to be ‘disappeared’ as a result, possibly along with his or her family.

The need for this high level of enforced ‘trust’ is why many hawala networks are controlled by terrorist and related criminal groups. The terrorists are not only willing to be brutal, but also require the quiet transfer of large amounts of untraceable cash. In a coordinated attack, in Mumbai on July 11, 2006, terrorist bombings on trains killed over 200 people. $10,000 that was used to carry out the attacks came from Saudi Arabia to India via halawa networks. The material recovered from Abbottabad shows Osama Bin Laden spent much of his time going through the “corporate” account books, tracking money generation (often through decidedly unspiritual means such as drug dealing) and cash flows.

Like a criminal Western Union, terrorism financiers use vast international hawala networks to move money around the world quickly and quietly. Due to their effectiveness, those same hawala channels also attract cash flows from other illegal sources, including arms traders, prostitution, narco-traffickers and human traffickers.

The problem is compounded when these same networks are used by those whose job it is to shut down criminal networks, such as (corrupt) politicians and law enforcement.

As all these money streams combine and flow through the same channels, each participant, from terrorist to politician, needs to protect the whole system in order to protect their own money flow.Very broadly, those common interests result in a division of labour.

The terrorists and associated criminal groups provide the system ‘hardware,’ such as physical money transfer, enforcement, etc.

Meanwhile the corrupt politicians and associated ‘legitimate’ groups such as (compromised) police, bureaucrats, media, etc., provide the system ‘software’ by keeping cases out of court, losing files, ensuring no coverage of embarrassing incidents, etc.

2011-08-19-HawalaMoneyFlowForHuffPo.jpgRecently J. Dey, one of Mumbai’s top investigative journalists was shot dead. On the list of suspects are politicians, terrorists, gangsters, industrialists and policemen. It pretty much sums up what has happened to India. As dirty money flows between politics, extremist groups, narco-traffickers, business, media houses, and police, it mixes together forming a torrent of intermingled corruption that is drowning the security of the nation, and pouring over the border, carrying terror and crime with it.

Hassan Ali Khan Case

Those dynamics have been on display in the case of Hassan Ali Khan. Khan is sitting in jail in India awaiting trial on charges of running a massive, high value hawala network for an astoundingly varied cast of top-level players, from narcotics dealers to industrialists to politicians. Even Saudi arms broker Adnan Khashoggi’s name has come up.

In the case of Hassan Ali Khan and his associates, the sums were too large to be moved around invisibly like Abdul’s $5000. As a result vast amounts, sometimes up to $8 billion, periodically popped up in tax haven bank accounts, creating a brazen paper and e-trail.

For example, according to investigators, when millions were transferred to a Khan-linked bank account for the purchase of a hotel in Switzerland, it came with an unusual note attached.

According to the letter rogatory from the Indian government to the government of Singapore on criminal case no. ECIR/MZO/02/2006-07 (the case involving Khan):

Deal for purchase of property i.e. Chateu Gutsch [sic] in Lucerne was finalized and during payment, USB [bank] informed that USD 300,000,000 the fund have arrived tagged with comment “Funds from Weapon Sales.

The note shows just how sure Khan and others involved were that they were protected from prosecution. And, until now, people like Khan had good reason to feel safe.

Among Khan’s known associates were three Indian Chief Ministers and a top member of the ruling Congress Party. To protect themselves, they have to protect him, and the system he represents. And so, the case against Khan languished. Interrogations were cursory, files were sloppy, deadlines were missed.

But then, in an echo of what is happening all over India, someone said “enough is enough.” In the case of Khan, it was the Supreme Court of India. In a remarkable order issued on July 4, 2011, the court explained why vast flows of illegal money are a national security concern:

the issue of unaccounted monies held by nationals, and other legal entities, in foreign banks, is of primordial importance to the welfare of the citizens. The quantum of such monies may be rough indicators of the weakness of the State, in terms of both crime prevention, and also of tax collection. Depending on the volume of such monies, and the number of incidents through which such monies are generated and secreted away, it may very well reveal the degree of ‘softness of the State.’ […] If the State is soft to a large extent, especially in terms of the unholy nexus between the law makers, the law keepers, and the law breakers, the moral authority, and also the moral incentives, to exercise suitable control over the economy and the society would vanish. Large unaccounted monies are generally an indication of that.

The court instructed: “Follow the money.” It ordered that the Khan case be taken out of the hands of existing (failing) investigative units, and be given to a special investigate team composed of top officials comprising, among others, two former Supreme Court Justices and the Director of the Research and Analysis Wing.

If properly investigated, the case has the potential not only to bring down governments, but it could also be a huge blow to global terror, drugs, child prostitution, and human trafficking networks.

Anti-Corruption Campaigns

Needless to say, those networks are fighting back. At midnight on June 5th, tens of thousands of fasting, sleeping anti-corruption demonstrators were stormed by the police and cleared from their demonstration site in central Delhi. Reportedly orders for the action came from the very top. But the anti-corruption elements of the system are standing firm. The Supreme Court has ordered the Government to explain its actions on the night of June 5th. Point, counter-point.

Similarly, this week, anti-corruption demonstrator Anna Hazare and hundreds of his supporters were arrested. Subsequently, tens of thousands took to the street to protest the arrests. India is not new to demonstrations, but this fight back mood is different. It will not go away. And it’s spreading. Sympathy protests have taken place in the U.S.Singapore and Hong Kong. And there are more to come.

It is fitting that the protests are going global. Political corruption in India, facilitated by hawala networks, has not only undermined India, it has compromised global security. For years some, like journalist and strategist M.D. Nalapat, have been warning about the deepening and spreading security vulnerabilities resulting from Indian corruption. Now, the Cassandras are being proved right.

Luckily for those around the world concerned about terror, drugs, human trafficking and other multinational criminal organization, the Indian people, from the streets to the courts, are working hard to make India, and by extension the world, a more secure place. This fight concerns us all.

COURTESY: HUFFINGTON POST