Tag Archive | Right to Information Act 2005

Whither Reform ? Time To Audit Law-making ? – By Mukesh Jhangiani

                                                                                                                        February 19, 2006

Whither Reform ? Time To Audit Law-making ?

By Mukesh Jhangiani
United News of India

English: Parliament building in New Delhi (San...

Where Laws Are Made – Sansad Bhavan or Parliament Building (Photo: Wikipedia)

New Delhi (UNI) – Pendency went up 25 per cent – to 30 million cases – as authorities spent 2005 computerising courts, equipping judges with laptops, promoting arbitration and legal literacy and planning nyayalayas across rural India– all the while deferring reforms mostly to 2006. Maybe !

The year had begun with a call in the presence of a senior Supreme Court judge to curtail lawyers’ fees and sieve out those who do not conform to the expectations of a noble calling.
About same time, President A P J Abdul Kalam was questioning a bid to transfer a high court chief justice whose concern over judicious conduct had 25 brother judges attempting a ‘strike.’
And Law and Justice Minister Hans Raj Bhardwaj was announcing moves to strengthen the Judge’s Inquiry Act and a Bill to appoint a Lokpal to ensure accountability in executive, legislature and judiciary– the three key branches of governance.
Those events marked the very first week of 2005.
If such straws in the wind– and a new left-backed United Progressive Alliance at helm– produced hopes of real reforms in delivery of justice and rule of law blowing in soon– the wait did not end with the year.
The Right To Information Act, 2005 which came into force on October 12– cited by Prime Minister Manmohan Singh among key achievements– is seen by experts as a valuable tool to expose corruption.
Legal redress or remedy which include compensating victims and punishing culprits is another matter.
Media ‘stings’ which showed some Members of Parliament virtually vending the privilege of raising questions in the House or spending on development were a rude reminder that accountability was not really round the corner.
Their expulsions notwithstanding, the ‘exposed’ MPs are knocking on the doors of courts for justice.
It refreshes memories of one of the most controversial Supreme Court judgements that the Indian Constitution gives MPs taking bribes an immunity from prosecution ”if they have actually spoken or voted in the House pursuant to the bribe taken by them.”
That judgement allowed the acquittal of four Jharkhand Mukti Morcha MPs who had voted for the Narasimha Rao Government 12 years ago in return for bribes.
Then Law Commission Chairman B P Jeevan Reddy suggested making bribe-taking legislators liable for prosecution.
”Nothing… should bar the prosecution of a Member of Parliament under the Prevention of Corruption Act… if they take money for voting in Parliament.”
Asked about it eleven years later at a news conference in January 2005, the Law Minister acknowledged that steps were yet to be taken to preclude such interpretation– as, indeed, they yet are.
Lokpal to check corruption in public offices itself was conceived four decades ago but is still nowhere in sight. Tired of waiting, activists have announced a People’s Lokpal.
Efforts on Lokpal or to strengthen the law to discipline errant senior judges remain under way.
By proclaiming 2005 as the Year of Excellence in Judiciary and pronouncing the institution ‘clean’– close on the heels of allegedly scandalous behaviour involving some senior judges– then Chief Justice of India Ramesh Chandra Lahoti helped underscore accountability as well as transparency.
Bhardwaj insists that any disciplinary action against senior judges be taken only by their peers and to that end the Judges’ Inquiry Act 1968 needs strengthening.
The Act provides to impeach an errant judge– a step rendered ineffective due to partisan politics the only time it was invoked against Supreme Court Judge V Ramaswamy who had been dubbed ”guilty of wilful and gross misuses of office…”
Authorities have no other way to effectively discipline senior Judges. An in-house mechanism has been adopted in absence of any legislative provisions. But experts say such a mechanism suffers from opacity and uncertainty.
Three years ago, within hours of taking office as CJI, Justice Gopal Ballav Pattanaik stressed in a television interview more powers to tackle corruption in judiciary.
Just a week before, his predecessor, Justice Bhupinder Nath Kirpal had called for ”robust safeguards” to minimise fears of corruption and incompetence in a judiciary appointing itself.
He said, ”the members of the judiciary are also Indian citizens who come from the same aggregate as those in the legislature and the administration, and therefore, there are also instances where corruption and incompetence have also pervaded the judicial establishment that cannot be denied.”
In December 2001, then CJI, Justice Sam Piroj Bharucha told a lawyers’ group in Kerala that ”more than 80 per cent of the Judges in this country, across the board, are honest and incorruptible.
”It is that smaller percentage that brings the entire judiciary into disrepute. To make it known that the judiciary does not tolerate corruption in its ranks, it is requisite that corrupt Judges should be investigated and dismissed from service.”
In December 1989, on the eve of retiring as CJI, Justice E S Venkataramaiah told an interviewer that ”judiciary in India has deteriorated in standards because some of the judges are willing to be influenced by lavish parties and whisky bottles.”
However, concern and disquiet voiced over the years has yet to produce a remedy.
The Law Minister suggests ‘formalising’ the in-house mechanism– leaving the task of ensuring accountability still with judges but making clear provisions for punitive measures such as suspension or resignation of errant judges.
With that in mind, India’s Central and State Law Ministers met at Simla in June 2005 and decided to set up a National Judicial Council to ensure judicial accountability.
Such measures may not find favour with some judges.
On the other hand, legislators and the executive– not to mention the judiciary– owe the citizens a transparent and accountable system of justice.
In a broader context, accountability was emphasised by Justice Yogesh Kumar Sabharwal seven months before he became the 36th CJI.
Speaking at the launch of a legal literacy mission by Prime Minister Singh, Justice Sabharwal said, ”We need to set examples of accountability in our governance.”
Three months ago, the Law Commission received a reference on the Judges’ Inquiry Act. This month, the Commission submitted to the Law Minister ”a comprehensive study” on ”the procedure for removal of the judges of the Supreme Court and High Courts.”
As it is, on one hand, judges cannot be disciplined unless their peers so choose– on the other they cannot be criticised without risking six months in jail under the court’s contempt power.
A long-awaited reform has been to allow truth as a defence against the contempt power which ends up silencing, at least discouraging, even fair, healthy and well-meaning criticism.
Last February, a Bill to ”further liberalise the scope to permit a defence of justification by truth on satisfaction as to bona fides of the plea and it being in public interest” was introduced in the Lok Sabha.
Just two days before the year ended did the Manmohan Singh Cabinet approve a ”proposal to proceed further in Parliament (on) the Contempt of Courts (Amendment) Bill 2004.”
An even more basic issue is judges’ strength. Not only it is known to be lower in India than elsewhere, it is further undermined by many vacancies and possible quality issues. Delayed judicial appointments contribute to delayed justice, even though authorities know years before vacancies arise and can set up a pool from which judges are assigned without delay.
So far as making lawyers accountable to litigants is concerned, the Advocate’s Act remains where it was.
Apart from complaints of incompetence, inefficiency and indifference, ethical issues are a major concern in the legal profession.
Lawyers who should look out for clients’ interests, are at times known to mislead them– treating cases as milch cows prolonged through adjournments for years– or even colluding with clients’ opponents.
Victims can complain to statutory Bar Councils. But the Councils are not always prompt in responding, nor can they help litigants recover any losses caused due to members’ misconduct.
One practical remedy might be for courts to keep for litigants’ reference a lawyers’ roster along with any record of complaints of misconduct against each– whether resolved or pending.
As it is, the authorities have not even dusted Law Commission findings since protesting lawyers clashed with police on Parliament Street a few years ago.
Here is an undergraduate textbook extract on the reality of Equality Before Law in actual practice during the erstwhile British rule:
”The principle of equality before law was violated when laws became complicated and beyond the grasp of uneducated poor masses.
They had to engage lawyers who charged excessive fees and preferred to work for the rich. In addition, the prevalence of corruption in the administrative machinery and the police worked against the rights of the masses.”
More than 57 years after the British quit India, the call to simplify the language of laws of the land was given by Prime Minister Singh at the launch of the country’s first nationwide legal literacy mission in March 2005.
”The complex legal language of our statutes acts as a hurdle to legal literacy… compounded by the intricacies of legal language in judicial pronouncements,” Dr Singh told law professionals.
”An attempt should be made to simplify the language of the law so that any one who reads judgements and laws can easily understand their true meaning.”
In November, the cold-blooded killing of Indian Oil Corporation officer Manjunath Shanmugam, who blew the whistle on corrupt petrol outlets, underscored once again the crying need in India for law to protect whistleblowers– insiders who expose corrupt or abusive organisations or employers.
Such laws have existed in and served other advanced societies for decades.
In India, a study was made by the Law Commission and a Draft Bill put together and placed in Parliament more than three years ago.
It was before the MPs when National Highway Authority officer Satyendra Dubey lost his life in November 2003, not to mention when Shanmugam lost his– two years later.
As it is, critics say, officials who appear to find protection in Indian jurisprudence are the sort who acquiesce in or connive at violations.
In case after case– whether petrol pump distribution scam, St Kitts affair, Hawala scam, Bofors scandal or many more– bureaucrat after bureaucrat and politician after politician has found acquittal or escape.
It is dramatically exemplified in manifestations of justice that hit consumers of New Delhi’s municipal and housing services this winter.
Law abiding citizens hailed the drive ordered by the Delhi High Court, urging impartiality and wondering whether– and why– law spared pre-2000 violations or officials on whose watch violations took shape.
Published accounts say three-fourths– perhaps more– of the Capital’s 36,00,000 buildings are illegal. Yet municipal authorities have taken note of only 200,000 of them and acted against barely a thousand.
The ongoing drive targets a mere 18,299 cases detected since 2000.
The court also has ordered the city to ”fix responsibility” and initiate major penalty against engineers and officials ”who allowed or took no notice” of such constructions.
If punitive action has been taken, it has not been made public.
Critics say city bulldozers have been ‘discrete,’ steering wide clear of homes of India’s bigwigs or affluent– entire unauthorised neighbourhoods or localities !
Critics advocate punishing officials who let violations occur and such agencies as the Delhi Development Authority whose policies or actions– why lottery ? for instance– have encouraged and stoked speculation in housing.
They say it all reflects the state of rule of law in India.
Here are some more reflections of it:
— Hundreds of thousands of undertrials have been in custody– many for years, even longer than their convictions might have required them to spend in jail. Why legal attention remains denied is not clear given huge sums spent year after year on legal aid for needy. Former Law Minister Jana Krishnamurthi saw it as a serious flaw that must not be allowed.
— An Indian Society of International Law inaugurated in August 1959 by India’s first Prime Minister Jawaharlal Nehru might have been a guiding force, helping inform and shape public opinion on global law. In 2005, it was sued by its Treasurer over violations of domestic norms.
— The Bar Council of India disclosed two years ago that 131 high court judges– one in four– across India have kin practising in the same court– an arrangement or coincidence forbidden under the law for fear of promoting unfairness in justice. The Council campaigned for transfer of 131 HC judges– in vain.
— But 2005 saw a High Court Chief Justice transferred twice in seven months, each time reportedly on brother judges’ complaints. In February, Justice B K Roy was transferred to Gauhati HC after he had asked some Punjab and Haryana HC judges why they took complimentary membership of an exclusive club, and in September, to the Sikkim HC, after he tried to improve access to justice in the Northeast by assigning Judges to benches in states neighbouring Assam.
— Despite scam after sordid scam sapping public interest, legislators have neither enacted Lokpal nor discarded it as a bad idea unfit for Indian society in the 40 years since it was recommended by the Administrative Reforms Commission set up under Morarji Desai in 1966.
— In November 1996, the Supreme Court found that former Petroleum Minister Satish Sharma favoured 15 petrol pump allottees and fined him Rs 50,00,000. Another Bench overruled this in August 1999. Two years later, an expert group led by Justice Reddy reviewed both orders and said it was ”absolutely essential” and ”urgent” to enact a law making public servants liable– with exemplary damages– for loss caused to the State by their mala fide actions. Last April, the Central Bureau of Investigation explained its failure to file chargesheet in the 15 cases citing a government decision ”not to grant sanction” to prosecute Sharma.
— In 30 years, the Lalit Narain Mishra murder case has been transferred to nine judges, and of seven accused, the statement of only two recorded. A Parliamentary report dubs it ”a classic case” which ”epitomises the lethargic pace at which the Indian legal system operates.”
”We must realise,” Justice Sabharwal said in his Law Day speech in November ”that the end of law must be justice. Law and justice cannot afford to remain distant neighbours. There must be harmony between law and justice.
”We must, in all seriousness, ask ourselves… how far we have been able to fulfil the mission of law to deliver justice and to what extent we have succeeded in using law as a vehicle for ensuring social justice to the large masses of people in the country.”
Experts concede that not just justice, legislation– the process of enacting laws of the land– also suffers from delays.
They say the terribly slow pace of legislating reforms is as constricting and agonising to the society as delay in adjudication is to an individual victim.
In India, the process also suffers from near absence of public participation in so-called public debate– often confined to hearing select speakers in one forum or another with hardly any audience input.
Those are just some of the serious questions that need to be faced. ”It is also perhaps a most ignored aspect of public interest issues by Indian research and scholarship,” a Delhi University Law teacher acknowledges.
Experts concede what is needed is a thorough but quick audit or study of legislative function– to see how it can be made effective in dealing with the needs of transparency, accountability and law in the society.
UNI MJ PK GC1148

MEA Acknowledges Correspondence With Moscow On Netaji – By Mukesh Jhangiani

                                                                                                                              September 6, 2006

 

Subhas Chandra Bose as the leader of INA.

Subhas Chandra Bose (Photo: Wikipedia)

MEA Acknowledges Correspondence With Moscow On Netaji

By Mukesh Jhangiani
United News of India
New Delhi (UNI) – India’s External Affairs Ministry has acknowledged having corresponded with the Soviet and the Russian governments on the disappearance six decades ago of Netaji Subash Chandra Bose, but declined to disclose the contents.

This was reported last evening by a research group– Mission Netaji– which invoked the year old Right to Information Act to get the Ministry to share the facts in the matter.

”The requisite copies of correspondence cannot be disclosed as it involves the relations with foreign State,” was what the Mission said it was told by the Ministry’s Central Public Information Officer, E Barwa.
The Mission had inquired whether ”serious efforts were ever made from a higher level to uncover the mystery surrounding the fate of one of the greatest Indians ever.”
A legendary figure of India’s independence movement, Bose disappeared after an alleged plane crash over Taipei on August 18, 1945, which the Taiwanese authorities later said had never occurred.
The Mission sought certified copies of the entire correspondence the Ministry had with the Soviet and the Russian governments in the matter.
Declining the request, Barwa wrote to the Mission that the data ”is exempt as per the provisions of Clause 8(1) (a)&(f).”
The clauses cover ”information received in confidence from foreign Government” and ”information, disclosure of which would prejudicially affect” India’s ”security, strategic” interests.
The Mission also wrote to the Ministry, ”we understand that our Embassy in Moscow had taken up the matter with the Foreign Ministry of Russian Federation in 1992, 1995, 1997, 2001 and 2003 with dissatisfying results.”
”The request to Government of USSR and the Russian Federation were made through diplomatic channels at appropriate levels,” the Ministry replied, without elaborating.
”There was no plane crash that day– August 18, 1945– or the day before that or the day after,” former Human Resource Development Minister Murli Manohar Joshi told a conclave in New Delhi last month.

English: Gandhi and Subhas Bose, Haripura Cong...

Bose and Gandhi at 1938 Haripura Congress session (Photo: Wikipedia)

He and former Defence Minister George Fernandes were speaking on new findings that Bose ”did not die in the plane crash, as alleged” and ”the ashes in the Japanese temple are not of Netaji.”
Those conclusions by retired Supreme Court Judge Manoj Kumar Mukherjee countered the findings by two predecessors– Shah Nawaz Khan in 1956 and G D Khosla in 1970– that Bose was killed in a plane crash over Taipei, Taiwan.
Taiwanese authorities say there were no plane crashes in Taipei between 14 August and 20 September 1945.
Justice Mukherjee headed an Inquiry Commission set up by the National Democratic Alliance government in May 1999 following a Calcutta High Court order.

He gave his 672-page report in May 2006 to the United Progressive Alliance government which tabled it in Parliament declaring it has ”not agreed’ with either key finding.
The Mukherjee Commission was the first inquiry set up by a non-Congress government– the past inquiries having been ordered by Prime Ministers Jawaharlal Nehru and Indira Gandhi.
Critics have over the years charged both Khan and Khosla with having made half-hearted inquiries, intended essentially to endorse the view taken by the establishment in those years.
Speakers pointed to indications that the news of Bose’s death in August 1945 was a smokescreen for his escape to the Soviet Union to pursue the freedom struggle.
They suggested that Russia be requested formally at the highest level to open its archives to Indian scholars.
Controversy has dogged the issue over the past 61 years– with many Indians refusing to believe that Netaji was killed at the time of the alleged aircrash.
Speculation has been fuelled by the Indian authorities’ refusal to let investigators– even a retired Supreme Court Judge in this case– examine the supposedly secret files.

Published accounts say similar reluctance of Russian, British and Japanese governments to let investigators see relevant files ”strongly point to an international conspiracy.”
UNI MJ RP KN1543

Netaji… ‘Global Conspiracy To Suppress Truth ?’ – By Mukesh Jhangiani

                                                                                                            August 19, 2006

Netaji…’Global Conspiracy To Suppress Truth ?’

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – Six decades after a legendary figure of India’s independence movement disappeared in an alleged air crash, a year-old law is being invoked to determine what really happened to Subhas Chandra Bose.

”There was no plane crash that day– August 18, 1945– or the day before that or the day after,” former Human Resource Development Minister Murli Manohar Joshi told a conclave in New Delhi last week.

Subhas Chandra Bose as the leader of INA.

Subhas Chandra Bose as the leader of INA Photo: (Wikipedia)

He and former Defence Minister George Fernandes were speaking on new findings that Bose ”did not die in the plane crash, as alleged” and ”the ashes in the Japanese temple are not of Netaji.”
Those conclusions by retired Supreme Court Judge Manoj Kumar Mukherjee countered the findings by two predecessors– Shah Nawaz Khan in 1956 and G D Khosla in 1970– that Bose was killed in a plane crash over Taipei, Taiwan.
Taiwanese authorities say there were no plane crashes in Taipei between 14 August and 20 September 1945.
Justice Mukherjee headed an Inquiry Commission set up by the National Democratic Alliance government in May 1999 following a Calcutta High Court order.
He gave his 672-page report in May 2006 to the United Progressive Alliance government which tabled it in Parliament declaring it has ”not agreed’ with either key finding.
The Mukherjee Commission was the first inquiry set up by a non-Congress government– the past inquiries having been ordered by Prime Ministers Jawaharlal Nehru and Indira Gandhi.
Critics have over the years charged both Khan and Khosla with having made half-hearted inquiries, intended essentially to endorse the view taken by the establishment in those years.
The two NDA leaders at the conclave assailed the UPA government’s stand, calling it an attempt and conspiracy to ”erase” the memory of Netaji.
Fernandes said Nehru knew that Netaji’s return would jeopardise his dynastic plans.
The event was organised by a group called Mission Netaji and All India Legal Aid Forum, an association of retired judges, lawyers and activists, to ask what then happened to Bose.
The participants included two former members of Bose’s Indian National Army– Captain Surjan Singh Yadav and V P Saini– besides researcher Purabi Roy, and some of Bose’s kin.
Speakers pointed to indications that the news of Bose’s death in August 1945 was a smokescreen for his escape to the Soviet Union to pursue the freedom struggle.
They suggested that Russia be requested formally at the highest level to open its archives to Indian scholars.
Controversy has dogged the issue over the past 61 years– with many Indians refusing to believe that Netaji was killed at the time of the alleged aircrash.
Through out the early years after independence there were unconfirmed reports and rumours about his having survived any such accident.
Speculation has been fuelled by the authorities’ refusal to let investigators– even a retired Supreme Court Judge in this case– examine the supposedly secret files.
Even attempts to confer on Bose a ”posthumous” Bharat Ratna– highest civilian honour– or bring from a Japanese monastery an urn supposed to contain his ashes– were challenged and dropped.
Some time after the Mukherjee Commission began its work there was word it was denied classified files by officials in Prime Minister Atal Behari Vajpayee’s Office and key– Home and External Affairs– ministries.

Chandra Bose with Heinrich Himmler

Bose with Heinrich Himmler (Photo: Wikipedia)

Published accounts say similar reluctance of Russian, British and Japanese governments to let investigators see relevant files ”strongly point to an international conspiracy.”
To crack the mystery, the conclave sponsors have invoked what Prime Minister Manmohan Singh calls one of his government’s key achievements– the Right to Information Act 2005.
They hope the new law would help secure access to ”basic” files which had been supplied to the first two inquiries but denied to the third inquiry.
Here is what they have requested:
— Details of action taken by the government to verify the news of Netaji’s alleged imprisonment in the erstwhile Soviet Union– allegedly reflected in an official file.
— Certified copies of the MEA’s correspondence with the Soviet and the Russian governments over Netaji’s disappearance.
— Cabinet Secretariat papers about a destroyed PMO file titled ‘Investigation into the circumstances leading to the death of Shri Subhas Chandra Bose.’
— Authenticated copies of all documents exhibited before the Shah Nawaz Committee 1956 and the GD Khosla Commission 1970-74.
A Home Ministry official has intimated the applicants that their request ”cannot be acceded to” as it concerns data disclosure of which would ”prejudicially affect” India’s ”security, strategic” interests.
The Mission has since moved the Central Information Commission which gave notice to the Home Ministry officials on August 3, asking them to respond by August 18.
Asked last night if he had heard from the MHA, Sayantan Dasgupta said, ”I have not got anything so far. We’d wait a few more days before going back to the CIC again.”
UNI MJ RP VA BS1119

Enact Whistleblowers Act – To Protect RTI Users ! – By Mukesh Jhangiani

                                                                                                              April 29, 2010

                         Enact Whistleblowers Act – To Protect RTI Users !*

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – A Parliamentary expert tonight called for a law to protect whistleblowers to ward off criminal attacks– including murder– which have targeted some citizens invoking their Right to Information.

The five-year-old law to empower citizens was the theme of E M Sudarsana Natchiappan’s lecture to commemorate B R Ambedkar, an author of the Constitution of India.

Asked about the spate of assaults suffered by RTI users, at least two of whom were killed, Natchiappan said the answer was to enact the Whistleblowers’ Act.
Satish Shetty of Pune who exposed land scams in Maharashtra was killed by unidentified men while out for a morning walk on January 13.
A month later, on February 14, Shashidhar Mishra of Begursarai who used RTI to expose Panchayat corruption in Bihar was shot by unidentified men.
A whistleblower is a person who raises a concern about wrongdoing in an organisation or body of people.
Many Western democracies have laws to protect such individuals.
In India, legislation was suggested by the Law Commission in December 2001 as a follow up to then Prime Minister Atal Behari Vajpayee’s call for zero-tolerance to corruption.
But a law has yet to be enacted, while corruption and scams have gone on to multiply.
The Dr B R Ambedkar Memorial Lecture organised by the Institute of Constitutional and Parliamentary Studies was presided over by Chief Information Commissioner Wajahat Habbibullah.
Natchiappan, a former chairman of Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, disclosed that of some 130 recommendations made by his panel on RTI, all except one were accepted by the Union Cabinet.
The only recommendation which did not find favour would have jailed any official who persisted in not complying with the requirement of the Act in terms of replying to applicants in time.
UNI MJ