edit, governance now, nov1-15
The Narmada people continue their epic battle for survival far away from national consciousness
People of the Narmada valley marked their 25 years of struggle against big dams without much fanfare a few days ago, quite clearly because their struggle has gone out of public discourse and national consciousness. A sad comment indeed given the seminal contribution they made towards what we have come to recognise now, though not fully implement yet, as good governance practices. It was their struggle which, for the first time, raised a voice for right to information, right to land and forests, right to food and livelihood, right to resettlement and rehabilitation and, above all, questioned the logic of big dams, a deeply flawed growth-centric development paradigm that benefitted a few at the cost of the others and proposed smaller dams, check dams and other water harvesting measures, instead, to take care of the water needs. They were also the ones, for the first time, to seek people’s participation in decision-making.
Post independence, there have been several major political movements; some, like those in Punjab and Assam, died down but others, in Kashmir, parts of the Northeast and the tribal heartland, continue to simmer. What sets people of the Narmada apart is their adherence to the Gandhian non-violence and satyagraha, not by compulsion but by choice. Ashish Chadha, who teaches anthropology at Yale University, USA, wrote an article in the Hindustan Times a few months ago recalling his days of the Manibeli satyagrah of 1991 in which Medha Patkar, activists of her Narmada Bachao Andolan (NBA) and some tribals planned to drown themselves in rising waters of the Narmada. (This Maharashtra hamlet went down in 2009.) He remembers what members of the dreaded People’s War Group said to him: “We told Medha-tai to let us lead the movement for just one day. We will see to it that this dam (Sardar Sarovar) is never made. Gandhian non-violence will not do you any good. You don’t know this government. It will trample you. It will mercilessly crush you.”
Medha didn’t relent and the prophecy came true. She and her NBA stand discredited and marginalised today, thanks to suppression and vicious state-sponsored campaigns. Their place has been taken over, in the tribal heartland at least, by the marauding Maoists (after PWG and Maoist Communist Centre merged in 2004) who have brought to centre stage the debate about good governance and alternate development models. Medha may not profess violence but is now often seen in the company of Maoist front organisations and Arundhati Roy, the celebrated author who batted for Medha’s non-violence for many years, is thoroughly disillusioned and has become an apologist for the cult of Maoist violence.
As for the Narmada’s hapless people, their struggle endures. Unofficial assessment (as per Justice AP Shah report of June 2010) puts the number of people yet to be fully rehabilitated at 2,00,000. There is no official word on it decades after construction of the Narmada dams (30 major, 135 medium and 3,000 small ones) began. That is because dispute over the very definitions of “submergence area” and “project affected family” continues even today. The Narmada Tribunal and then the supreme court added to the mess by saying rehabilitation could happen “pari passu” with the dam work.
Benefits from the Narmada dams? Well, the ground realities are vastly different from what was promised because some of the dams and most of the canal work remain incomplete. Disputes over water allocation for irrigation and power plants have ensured that even the build-up facilities remain under-utilised. Kutch and Saurashtra, in whose name Gujarat government built up a resistance to the NBA, may have got water for drinking but not for irrigation because the canal works are stuck in the first phase (they will get it in the third phase). In any case, only 1.5 percent of cultivable area in Kutch and 7 percent of cultivable area in Saurashtra were to get water.
The Narmada struggle has provided countless lessons, without putting a gun to our head. Probably that has proved to be their undoing.
Friday, October 29, 2010
Pillai ruffles diplomatic feathers, again!
governancenow.com, oct 28
His motive to bring up Headley is suspect
An otherwise reticent and publicity-shy bureaucrat, home secretary G K Pillai has queered the pitch again just ahead of the US president’s visit to India. Without any apparent provocation, he told the media on Wednesday that India was disappointed with the US for not sharing intelligence input regarding the Lashkar-e-Taiba operative, David Coleman Headley, at the right time. “We were disappointed the name of David Headley was not provided, if not pre-26/11, at least post-26/11”, Pillai said.
There is nothing new in it, though. Our security establishment has made their displeasure known in the past too, pointing out that the US shared information about Headley only after his arrest in Chicago in October 2009. Had that not been so, Headley could have been arrested, if not before 26/11, at least after 26/11, when he travelled to India.
But this was serious diplomatic faux pas and prompted an immediate rebuttal from the US ambassador to India, Timothy Roemer, who said: “The U.S. shared intelligence on a regular and consistent basis with the government of India prior to the Mumbai attacks. We have also shared information with the government of India after the Mumbai attacks”.
Pillai had done the same in July this year, just a day before foreign minister S M Krishna was to visit Pakistan for bilateral talks. Pillai had mentioned Headley then too and said how he had implicated Pakistan’s ISI in the 26/11 terror strike on Mumbai. This remark became the focus of the bilateral talk and the joint press conference that followed, causing a serious embarrassment to Krishna and the country.
True the subject has everything to do with Pillai’s brief but timing it to high-profile diplomatic visits raises serious questions about his motivation. Surely a bureaucrat of his stature understands the implication of what he said and he also knows that there is a ministry for external affairs to raise the issue, if it all it has to be, with the US president or his officials. It would be naïve to assume that he was talking out of turn. But the other plausible inference, that it was a command performance, doesn’t speak well of the government, at least on the diplomatic front, if true.
Is there a disconnect between the home and the external affairs ministries? Is the home ministry trying deliberately to undermine the external affairs ministry?
Or is it a ploy to engage the US in a diplomatic exchange on a subject that we may not dare or desire to take up directly?
We may never know. But for now, it doesn’t reflects India’s maturity in handling diplomatic affairs.
His motive to bring up Headley is suspect
An otherwise reticent and publicity-shy bureaucrat, home secretary G K Pillai has queered the pitch again just ahead of the US president’s visit to India. Without any apparent provocation, he told the media on Wednesday that India was disappointed with the US for not sharing intelligence input regarding the Lashkar-e-Taiba operative, David Coleman Headley, at the right time. “We were disappointed the name of David Headley was not provided, if not pre-26/11, at least post-26/11”, Pillai said.
There is nothing new in it, though. Our security establishment has made their displeasure known in the past too, pointing out that the US shared information about Headley only after his arrest in Chicago in October 2009. Had that not been so, Headley could have been arrested, if not before 26/11, at least after 26/11, when he travelled to India.
But this was serious diplomatic faux pas and prompted an immediate rebuttal from the US ambassador to India, Timothy Roemer, who said: “The U.S. shared intelligence on a regular and consistent basis with the government of India prior to the Mumbai attacks. We have also shared information with the government of India after the Mumbai attacks”.
Pillai had done the same in July this year, just a day before foreign minister S M Krishna was to visit Pakistan for bilateral talks. Pillai had mentioned Headley then too and said how he had implicated Pakistan’s ISI in the 26/11 terror strike on Mumbai. This remark became the focus of the bilateral talk and the joint press conference that followed, causing a serious embarrassment to Krishna and the country.
True the subject has everything to do with Pillai’s brief but timing it to high-profile diplomatic visits raises serious questions about his motivation. Surely a bureaucrat of his stature understands the implication of what he said and he also knows that there is a ministry for external affairs to raise the issue, if it all it has to be, with the US president or his officials. It would be naïve to assume that he was talking out of turn. But the other plausible inference, that it was a command performance, doesn’t speak well of the government, at least on the diplomatic front, if true.
Is there a disconnect between the home and the external affairs ministries? Is the home ministry trying deliberately to undermine the external affairs ministry?
Or is it a ploy to engage the US in a diplomatic exchange on a subject that we may not dare or desire to take up directly?
We may never know. But for now, it doesn’t reflects India’s maturity in handling diplomatic affairs.
Ten mistakes NAC made on food bill
governancenow.com, Oct 25, 2010
It provides old solutions, retains old problems
Jean Dreze, development economist and a member of the National Advisory Council (NAC) which finalized its recommendations on the proposed food security law, has aptly summed up the final outcome in his dissent note: “An opportunity has been missed to initiate a radical departure in this field. The NAC proposals are a great victory for the government – they allow it to appear to be doing something radical for food security, but it is actually “more of the same”.
A look at the NAC’s formulations will make it abundantly clear how the NAC’s formulations have, instead of solving anything, defeats the very purpose of a food security law and introduces more complexities and confusion that would only weaken the existing subsidized food regime. Here is a list of 10 mistakes it has made:
1. A right to food has to be a universal. The NAC proposes an entitlement to only 75 percent of population – 90 percent in rural and 50 percent in urban areas.
2. This is further divided into “priority” and “general” category, instead of the existing BPL and APL categories. It is a mere name-change and if at all, it adds to confusion.
3. The “priority” category is meant for 28 percent urban and 46 percent of rural population. This is a marginal improvement from the Tendulkar’s formulation for BPL (37 percent) which would have been implemented in any case since the government has already accepted it. As per Tendularkar’s BPL families constitute 26 percent urban and 42 percent rural population.
4. NAC introduces a new category and hence, the complexity. It “excludes” 50 percent in urban and 10 percent in rural areas (Point 1) from subsidized food regime.
In existing system, there are only two categories exist – BPL and APL. Nobody is excluded per se. The bureaucrats will now have a field day, magnifying the problems of exclusion and inclusion.
5. NAC proposes 35 kg of food (at Rs 3 for rice, Rs 2 for wheat and Rs 1 for millet), which is an extension of the Antyodyay scheme to the “priority” (or BPL) families.
6. In the name of nutritional needs, it has only added millet to the list, instead of adding oil, pulses and other coarse grain to the food basket.
7. Pension to the aged, which is in force as per the interim orders of the supreme court monitoring the food programmes in the country (PUCL vs the Union of India and others case), has been left out. So, this is dilution of the existing support system.
8. PDS has derailed our subsidized food regime. The NAC merely promises to look into reforming it in future. With the existing PDS, we can only expect more loot of food grain. It defeats the very purpose of legislating a new law.
9. NAC has introduced the problem of identification. Who is a “priority” family? Who is a “general” family? NAC does not define, but leaves it to the government. This recommendation is useless and adds needless complexity. It gives reason for the government to junk it and continue with BPL and APL categorisation.
10. A host of other existing food programmes, like ICDS, mid-day meal, anganwadi (community kitchen) etc will continue. So, why need a new law?
Dreze is right. The NAC’s formulations amount to not only “more of the same” solutions, but also to “more of the same” problems.
So, why do we need a food security law?
It provides old solutions, retains old problems
Jean Dreze, development economist and a member of the National Advisory Council (NAC) which finalized its recommendations on the proposed food security law, has aptly summed up the final outcome in his dissent note: “An opportunity has been missed to initiate a radical departure in this field. The NAC proposals are a great victory for the government – they allow it to appear to be doing something radical for food security, but it is actually “more of the same”.
A look at the NAC’s formulations will make it abundantly clear how the NAC’s formulations have, instead of solving anything, defeats the very purpose of a food security law and introduces more complexities and confusion that would only weaken the existing subsidized food regime. Here is a list of 10 mistakes it has made:
1. A right to food has to be a universal. The NAC proposes an entitlement to only 75 percent of population – 90 percent in rural and 50 percent in urban areas.
2. This is further divided into “priority” and “general” category, instead of the existing BPL and APL categories. It is a mere name-change and if at all, it adds to confusion.
3. The “priority” category is meant for 28 percent urban and 46 percent of rural population. This is a marginal improvement from the Tendulkar’s formulation for BPL (37 percent) which would have been implemented in any case since the government has already accepted it. As per Tendularkar’s BPL families constitute 26 percent urban and 42 percent rural population.
4. NAC introduces a new category and hence, the complexity. It “excludes” 50 percent in urban and 10 percent in rural areas (Point 1) from subsidized food regime.
In existing system, there are only two categories exist – BPL and APL. Nobody is excluded per se. The bureaucrats will now have a field day, magnifying the problems of exclusion and inclusion.
5. NAC proposes 35 kg of food (at Rs 3 for rice, Rs 2 for wheat and Rs 1 for millet), which is an extension of the Antyodyay scheme to the “priority” (or BPL) families.
6. In the name of nutritional needs, it has only added millet to the list, instead of adding oil, pulses and other coarse grain to the food basket.
7. Pension to the aged, which is in force as per the interim orders of the supreme court monitoring the food programmes in the country (PUCL vs the Union of India and others case), has been left out. So, this is dilution of the existing support system.
8. PDS has derailed our subsidized food regime. The NAC merely promises to look into reforming it in future. With the existing PDS, we can only expect more loot of food grain. It defeats the very purpose of legislating a new law.
9. NAC has introduced the problem of identification. Who is a “priority” family? Who is a “general” family? NAC does not define, but leaves it to the government. This recommendation is useless and adds needless complexity. It gives reason for the government to junk it and continue with BPL and APL categorisation.
10. A host of other existing food programmes, like ICDS, mid-day meal, anganwadi (community kitchen) etc will continue. So, why need a new law?
Dreze is right. The NAC’s formulations amount to not only “more of the same” solutions, but also to “more of the same” problems.
So, why do we need a food security law?
Tuesday, October 19, 2010
Lessons from the Narmada struggle
Governance Now, Oct 16-31
The state sets out to replace a British era law for land compensation – with even more anti-people laws
I n the third week of October, people of the Narmada valley will observe the 25th anniversary of their struggle against large-scale displacement in the name of development and their right to be resettled and rehabilitated – something that was unheard of until then though development projects, especially big dams like Bhakra, Hirakud, Tungabhadra and Rihand had displaced thousands before that and in spite of the fact that our constitution had, in 1950, declared that ours was a ‘welfare state’.
So this might be a fit occasion to take stock of another “struggle” – the struggle of our supposedly welfare state to resettle and rehabilitate people affected by the supposedly development projects.
The magnitude of the problem can be gauged from the simple fact that six crore people have been displaced by development projects between 1947 and 2004, involving 25 million hectare of land (40 percent of which is tribal land), according to a rural development ministry report of 2009. N C Saxena, a retired bureaucrat and member of the National Advisory Council (NAC), circulated a note to the fellow council members last month which said: “Studies have shown that in the past only 20 to 25 percent people benefited after displacement, the rest were left worse-off.” This sort of displacment happens to be one of the major reasons why the Maoists have come to virtually rule one-third of our country.
The rural development ministry, several state governments and various central government departments which acquire land for development projects have, since then, adopted various resettlement and rehabilitation policies and even laws. But these policies and laws have failed to address the problem because the fundamental issues remain unaddressed.
The central government stepped in for the first time during the NDA regime but all it has done so far is to produce two bills – Land Acquisition (Amendment) Bill of 2007 (LA Bill) and Resettlement and Rehabilitation Bill of 2007 (RR Bill) – which were introduced in the last Lok Sabha and lapsed with it.
Thanks to Congress general secretary Rahul Gandhi’s interest in the farmers’ protest against land acquisition for the Yamuna Expressway in Uttar Pradesh that the prime minister woke up and promised a couple of months ago that these bills will be taken up for passage in the winter session of the parliament.
As we will see, the two bills, which are inter-linked and should have actually been part of one piece of legislation, too will fail to make any material difference to the ground realities because no lessons have been learnt from the Narmada struggle, or from any other such struggle going on in several states across the country.
Right to land
The key to the problem, it was realised, lies in the antiquated Land Acquisition Act of 1894 that embodies the doctrine of ‘eminent domain’, which means the government can acquire any private land for ‘public purpose’ with or without the permission of the owner. It does provide for ‘compensation’ for land, standing crop, house etc but not for resettlement and rehabilitation because the context then, 116 years ago, was different.
There has been a paradigm shift in our policies in recent years. The Panchayats (Extension to Scheduled Areas) Act of 1996 (PESA) and the Forest Rights Act of 2006 (FRA) have dented the ‘eminent domain’ doctrine and provide for mandatory ‘prior consent’ before any land can be acquired, primarily in the tribal areas, by recognising both people’s right and the community’s right over their land and forests.
The NAC, which took up the resettlement and rehabilitation issue in 2006, argued that this legal right should extend beyond the tribal areas. It had proposed that the “law should primarily defend the fundamental and other legal rights of the citizens, rather than facilitate the exercise of the eminent domain of the state”.
Recognition of this right over land and forests is also essential to make the RR Bill meaningful and effective.
The purpose of the RR Bill, as its ‘statement of objects and reasons’ acknowledges, is to recognise that land acquisition leads to “displacement of people, depriving them of their land, livelihood and shelter, restricting their access to traditional resource base and uprooting them from their socio-cultural environment” and that these have “traumatic, psychological and socio-cultural consequences on the affected population which call for protecting their rights, in particular of the weaker sections of the society including members of the Scheduled Castes, the Scheduled Tribes, marginal farmers and their families.”
While it remains a mere ‘statement’ in the RR Bill, the LA Bill doesn’t even acknowledge that or factor in people’s right over land and forests as granted by the PESA and the FRA while going for acquisition.
Further, the LA Bill retains clause 17 of the 1894 Act, which provides “special powers in case of urgency” to acquire land. Demands that this clause should be qualified so as to be used “rarely”, as the NAC and social activists have been proposing, and with “prior informed consent” of the affected people have also been ignored.
Right to livelihood
On the contrary, the LA Bill says ‘public purpose’ for which land can be acquired are three: (i) strategic purposes relating to defence forces or any other work vital to the state, (ii) infrastructure projects and (iii) “for any purpose useful to the general public for which land has been purchased by a person under lawful contract to the extent of 70 percent but the remaining 30 percent of the total area of land required for the project as yet to be required.”
Purpose number (iii) makes a dangerous proposition, that a private entity can acquire 70 percent of land, before the state steps in to acquire the rest on its behalf for a project. Advocate Sanjay Parikh, who has been dealing with the issue, warns that this provision will unleash moneybags, land sharks and their musclemen who can cause havoc in tribal and other vulnerable areas, besides being violative of the ‘welfare state’ concept enshrined in the Directive Principle of State Policy.
This has other serious consequences too. The government’s RR schemes and plans under the RR Bill will actually apply to the 30 percent area that the government acquires, not the 70 percent that the private entity does (clause 2) – that being the private entity’s responsibility.
Further, clause 20 (1) of the RR Bill says the proposed law is meant for “involuntary displacement of 400 or more families en masse in plain areas, or 200 or more families en masse in tribal or hilly areas.” Which means, even if 399 families (about 2,000 people) lose their land and are displaced in the plains and 199 families (about 1,000 people) do so in the hills, they will not be covered by the law.
Clauses 6(1) and 34 of the RR Bill rub more salt by saying that the environment impact assessment and social impact assessment studies will also be restricted to the 30 percent area.
Read together, all these provisions defeat the very purpose of both the LA Bill and the RR Bill.
But these are not all. The RR Bill further dilutes resettlement and rehabilitation schemes and plans through several other provisions.
Clause 36(1) says land will be given to the displaced “if government land is available”.
Clause 41 says jobs will be given “subject to the availability of vacancies and suitability of the affected person for the employment”.
Clause 35 says only the BPL families will get house for losing theirs, the rest will get land.
Clause 30 (3) says the government will decide what infrastructure facilities and amenities be given at the resettlement colony, without specifying anything.
By now it is clear that the RR Bill goes on to systematically defeat its very raison d’être.
Medha Patkar, the torch bearer of the Narmada struggle, has been insisting on a framework that should govern the policy of land acquisition and RR. She advocates: (i) recognition of the displaced as ‘investors’ in the project as their land, forest and natural resources are used for development, (ii) recognition of rights of people over their land and natural resources, like forest rights etc, (iii) protection of constitutional rights of everyone, including the displaced and (iv) recognition of decision making power of the affected people.
Concerns of the Narmada struggle that found an outlet through NAC’s formulation on the RR policy in 2006 had spelt out what the objective of the RR law should be: (i) displaced families to have a standard of living superior to what they had, (ii) they should have sustainable income above the poverty line and (iii) gains to the displaced be proportionate to the gains to the project beneficiaries. There is no sign of any of these being considered while drafting the two bills.
Private purpose
Revisit the definition of ‘public purpose’ in the LA Bill (clause 5) mentioned earlier. A parliamentary committee that examined the bill and submitted its report in 2008 was so disappointed that it actually said “unanimously” that this definition should be scrapped and replaced with, irony of ironies, the one in the British era law of 1894!
The Raj law had defined public purpose to include land for village, planned development or improvement of existing village, town and rural planning, housing for the poor or landless, educational, housing, health facilities etc. But the bill is silent on these aspects.
Para 4.38 of the parliamentary panel report says: “Further, the Committee feels that the definition of public purpose as given in Section 3 (f) of the Principal Act (of 1894) was much better. Besides, Part VII of the Principal Act which the amending legislation proposes to delete further tightened the definition of public purpose by putting some of the conditionalities. In view of this, the Committee unanimously decided not to agree to the proposed definition of public purpose as per Clause 5 of the amending legislation. The Committee after deliberations unanimously decided that the definition of public purpose as given in the Principal Act of 1894 along with Part VII of the Principal Act should be retained.”
Land to the tiller
Singur and Nandigram happened because the government acquired fertile, multi-crop agriculture land which was the only source of livelihood for thousands of farmers. At a time when food security and falling productivity of land are a cause of concern and the government records show how the cultivable land has shrunk from 18.50 crore hectares in 1980-81 to 18.25 crore hectares in 2005-06, the LA Bill is silent on protecting such land. UPA chairperson Sonia Gandhi had joined issue with the prime minister Manmohan Singh in early September by asserting that development or industrialisation shouldn’t be at the cost of fertile land.
Acquiring land in excess of need is another cause of concern. So is the absence of any legal provision to return the acquired land, excess or unused when the project fails to take off within a time frame, back to the people. K B Saxena, former bureaucrat associated with the Council for Social Development, has been advocating a policy to return land to the people, and not vest it with the government when a projects fails to take off in five years or excess land is detected, on the ground that this would act as an effective deterrent. The bill ignores this aspect too.
Stake in development
In the mid 1990s, the Dilip Singh Bhuria Committee made a dramatic suggestion to resolve the growing conflict between the tribals and the development projects in their area. He proposed an ownership pattern in all such projects in which community will have 50 percent stake, the displaced 24 percent and the investor the rest, 26 percent.
More recently, the ministry of mines circulated a draft Mines and Minerals (Development and Regulation) Bill, 2010, proposing 26 percent stake for tribals in the mining companies.
Needless to say, Bhuria’s suggestion was never considered. That of the mines ministry is strongly opposed by the private companies.
In the meanwhile, Haryana devised a vastly attractive RR policy in 2007 which, apart from various compensations, provides for an annuity of Rs 15,000 a year for every acre of land acquired for next 33 years. UP chief minister Mayawati made an improvement to this recently by announcing an annuity of Rs 20,000. Many, including NAC member Saxena, have suggested that the compensation package should also take into consideration future value of the land.
All these, however, are a matter of details. So long as the constitutional rights to land and livelihood are honoured, the issues will be addressed adequately. If not, the proposed legislations will benefit only a handful.
prasanna@governancenow.c
The state sets out to replace a British era law for land compensation – with even more anti-people laws
I n the third week of October, people of the Narmada valley will observe the 25th anniversary of their struggle against large-scale displacement in the name of development and their right to be resettled and rehabilitated – something that was unheard of until then though development projects, especially big dams like Bhakra, Hirakud, Tungabhadra and Rihand had displaced thousands before that and in spite of the fact that our constitution had, in 1950, declared that ours was a ‘welfare state’.
So this might be a fit occasion to take stock of another “struggle” – the struggle of our supposedly welfare state to resettle and rehabilitate people affected by the supposedly development projects.
The magnitude of the problem can be gauged from the simple fact that six crore people have been displaced by development projects between 1947 and 2004, involving 25 million hectare of land (40 percent of which is tribal land), according to a rural development ministry report of 2009. N C Saxena, a retired bureaucrat and member of the National Advisory Council (NAC), circulated a note to the fellow council members last month which said: “Studies have shown that in the past only 20 to 25 percent people benefited after displacement, the rest were left worse-off.” This sort of displacment happens to be one of the major reasons why the Maoists have come to virtually rule one-third of our country.
The rural development ministry, several state governments and various central government departments which acquire land for development projects have, since then, adopted various resettlement and rehabilitation policies and even laws. But these policies and laws have failed to address the problem because the fundamental issues remain unaddressed.
The central government stepped in for the first time during the NDA regime but all it has done so far is to produce two bills – Land Acquisition (Amendment) Bill of 2007 (LA Bill) and Resettlement and Rehabilitation Bill of 2007 (RR Bill) – which were introduced in the last Lok Sabha and lapsed with it.
Thanks to Congress general secretary Rahul Gandhi’s interest in the farmers’ protest against land acquisition for the Yamuna Expressway in Uttar Pradesh that the prime minister woke up and promised a couple of months ago that these bills will be taken up for passage in the winter session of the parliament.
As we will see, the two bills, which are inter-linked and should have actually been part of one piece of legislation, too will fail to make any material difference to the ground realities because no lessons have been learnt from the Narmada struggle, or from any other such struggle going on in several states across the country.
Right to land
The key to the problem, it was realised, lies in the antiquated Land Acquisition Act of 1894 that embodies the doctrine of ‘eminent domain’, which means the government can acquire any private land for ‘public purpose’ with or without the permission of the owner. It does provide for ‘compensation’ for land, standing crop, house etc but not for resettlement and rehabilitation because the context then, 116 years ago, was different.
There has been a paradigm shift in our policies in recent years. The Panchayats (Extension to Scheduled Areas) Act of 1996 (PESA) and the Forest Rights Act of 2006 (FRA) have dented the ‘eminent domain’ doctrine and provide for mandatory ‘prior consent’ before any land can be acquired, primarily in the tribal areas, by recognising both people’s right and the community’s right over their land and forests.
The NAC, which took up the resettlement and rehabilitation issue in 2006, argued that this legal right should extend beyond the tribal areas. It had proposed that the “law should primarily defend the fundamental and other legal rights of the citizens, rather than facilitate the exercise of the eminent domain of the state”.
Recognition of this right over land and forests is also essential to make the RR Bill meaningful and effective.
The purpose of the RR Bill, as its ‘statement of objects and reasons’ acknowledges, is to recognise that land acquisition leads to “displacement of people, depriving them of their land, livelihood and shelter, restricting their access to traditional resource base and uprooting them from their socio-cultural environment” and that these have “traumatic, psychological and socio-cultural consequences on the affected population which call for protecting their rights, in particular of the weaker sections of the society including members of the Scheduled Castes, the Scheduled Tribes, marginal farmers and their families.”
While it remains a mere ‘statement’ in the RR Bill, the LA Bill doesn’t even acknowledge that or factor in people’s right over land and forests as granted by the PESA and the FRA while going for acquisition.
Further, the LA Bill retains clause 17 of the 1894 Act, which provides “special powers in case of urgency” to acquire land. Demands that this clause should be qualified so as to be used “rarely”, as the NAC and social activists have been proposing, and with “prior informed consent” of the affected people have also been ignored.
Right to livelihood
On the contrary, the LA Bill says ‘public purpose’ for which land can be acquired are three: (i) strategic purposes relating to defence forces or any other work vital to the state, (ii) infrastructure projects and (iii) “for any purpose useful to the general public for which land has been purchased by a person under lawful contract to the extent of 70 percent but the remaining 30 percent of the total area of land required for the project as yet to be required.”
Purpose number (iii) makes a dangerous proposition, that a private entity can acquire 70 percent of land, before the state steps in to acquire the rest on its behalf for a project. Advocate Sanjay Parikh, who has been dealing with the issue, warns that this provision will unleash moneybags, land sharks and their musclemen who can cause havoc in tribal and other vulnerable areas, besides being violative of the ‘welfare state’ concept enshrined in the Directive Principle of State Policy.
This has other serious consequences too. The government’s RR schemes and plans under the RR Bill will actually apply to the 30 percent area that the government acquires, not the 70 percent that the private entity does (clause 2) – that being the private entity’s responsibility.
Further, clause 20 (1) of the RR Bill says the proposed law is meant for “involuntary displacement of 400 or more families en masse in plain areas, or 200 or more families en masse in tribal or hilly areas.” Which means, even if 399 families (about 2,000 people) lose their land and are displaced in the plains and 199 families (about 1,000 people) do so in the hills, they will not be covered by the law.
Clauses 6(1) and 34 of the RR Bill rub more salt by saying that the environment impact assessment and social impact assessment studies will also be restricted to the 30 percent area.
Read together, all these provisions defeat the very purpose of both the LA Bill and the RR Bill.
But these are not all. The RR Bill further dilutes resettlement and rehabilitation schemes and plans through several other provisions.
Clause 36(1) says land will be given to the displaced “if government land is available”.
Clause 41 says jobs will be given “subject to the availability of vacancies and suitability of the affected person for the employment”.
Clause 35 says only the BPL families will get house for losing theirs, the rest will get land.
Clause 30 (3) says the government will decide what infrastructure facilities and amenities be given at the resettlement colony, without specifying anything.
By now it is clear that the RR Bill goes on to systematically defeat its very raison d’être.
Medha Patkar, the torch bearer of the Narmada struggle, has been insisting on a framework that should govern the policy of land acquisition and RR. She advocates: (i) recognition of the displaced as ‘investors’ in the project as their land, forest and natural resources are used for development, (ii) recognition of rights of people over their land and natural resources, like forest rights etc, (iii) protection of constitutional rights of everyone, including the displaced and (iv) recognition of decision making power of the affected people.
Concerns of the Narmada struggle that found an outlet through NAC’s formulation on the RR policy in 2006 had spelt out what the objective of the RR law should be: (i) displaced families to have a standard of living superior to what they had, (ii) they should have sustainable income above the poverty line and (iii) gains to the displaced be proportionate to the gains to the project beneficiaries. There is no sign of any of these being considered while drafting the two bills.
Private purpose
Revisit the definition of ‘public purpose’ in the LA Bill (clause 5) mentioned earlier. A parliamentary committee that examined the bill and submitted its report in 2008 was so disappointed that it actually said “unanimously” that this definition should be scrapped and replaced with, irony of ironies, the one in the British era law of 1894!
The Raj law had defined public purpose to include land for village, planned development or improvement of existing village, town and rural planning, housing for the poor or landless, educational, housing, health facilities etc. But the bill is silent on these aspects.
Para 4.38 of the parliamentary panel report says: “Further, the Committee feels that the definition of public purpose as given in Section 3 (f) of the Principal Act (of 1894) was much better. Besides, Part VII of the Principal Act which the amending legislation proposes to delete further tightened the definition of public purpose by putting some of the conditionalities. In view of this, the Committee unanimously decided not to agree to the proposed definition of public purpose as per Clause 5 of the amending legislation. The Committee after deliberations unanimously decided that the definition of public purpose as given in the Principal Act of 1894 along with Part VII of the Principal Act should be retained.”
Land to the tiller
Singur and Nandigram happened because the government acquired fertile, multi-crop agriculture land which was the only source of livelihood for thousands of farmers. At a time when food security and falling productivity of land are a cause of concern and the government records show how the cultivable land has shrunk from 18.50 crore hectares in 1980-81 to 18.25 crore hectares in 2005-06, the LA Bill is silent on protecting such land. UPA chairperson Sonia Gandhi had joined issue with the prime minister Manmohan Singh in early September by asserting that development or industrialisation shouldn’t be at the cost of fertile land.
Acquiring land in excess of need is another cause of concern. So is the absence of any legal provision to return the acquired land, excess or unused when the project fails to take off within a time frame, back to the people. K B Saxena, former bureaucrat associated with the Council for Social Development, has been advocating a policy to return land to the people, and not vest it with the government when a projects fails to take off in five years or excess land is detected, on the ground that this would act as an effective deterrent. The bill ignores this aspect too.
Stake in development
In the mid 1990s, the Dilip Singh Bhuria Committee made a dramatic suggestion to resolve the growing conflict between the tribals and the development projects in their area. He proposed an ownership pattern in all such projects in which community will have 50 percent stake, the displaced 24 percent and the investor the rest, 26 percent.
More recently, the ministry of mines circulated a draft Mines and Minerals (Development and Regulation) Bill, 2010, proposing 26 percent stake for tribals in the mining companies.
Needless to say, Bhuria’s suggestion was never considered. That of the mines ministry is strongly opposed by the private companies.
In the meanwhile, Haryana devised a vastly attractive RR policy in 2007 which, apart from various compensations, provides for an annuity of Rs 15,000 a year for every acre of land acquired for next 33 years. UP chief minister Mayawati made an improvement to this recently by announcing an annuity of Rs 20,000. Many, including NAC member Saxena, have suggested that the compensation package should also take into consideration future value of the land.
All these, however, are a matter of details. So long as the constitutional rights to land and livelihood are honoured, the issues will be addressed adequately. If not, the proposed legislations will benefit only a handful.
prasanna@governancenow.c
Not so judicious
Governance Now, Oct 16-31
The judicial accountability bill proposes an oversight committee that is neither independent nor permanent in nature
The Judicial Standards and Accountability Bill of 2010, which was approved by the union cabinet on October 5, is yet another formulation in the decades-long endeavour of the government to bring in transparency and accountability in the higher judiciary. Meant to replace the Judiciary (Inquiry) Act of 1968, the latest formulation provides for a “national oversight committee” with which anyone can lodge a complaint against the higher judiciary, including the chief justice of India (CJI) and the chief justices of high courts. The oversight committee will be a five-member body, which will be headed by a retired CJI, one judge each from the apex court and the high court who will be nominated by the CJI, the attorney general and an eminent person nominated by the president.
Once a complaint is received, it will be forwarded to a “scrutiny panel”. If the complaint is against a supreme court judge, the panel will consist of a former CJI and two sitting apex court judges and if it is against a high court judge, the panel will have a former chief justice of high court and two of its sitting judges. This panel will submit its report in three months. In case the complaint is against a chief justice, the oversight committee itself will carry out the scrutiny. If charges are found correct, an “investigation committee” will go into it and the action will follow. If charges are not serious, the oversight committee will issue an advisory or warning. But if serious, the judge will be requested to resign, failing which the oversight committee will recommend his removal to the president. In such an eventuality, the impeachment proceeding will begin as per the existing system of impeachment.
There are two other key features in the proposed bill. One, the judges will be required to file annual return of assets and liabilities of their own, their spouse and children and will be put up on the websites of the respective courts. Two, the judges will be prohibited from having close association with lawyers who practise in the same court, permit relatives to appear before him or hear a case involving their family, close relatives or friends. Besides, there are other don’ts like not to contest elections to any club, association connected with the law or any court, not to air views on political issues or pending cases and not to speculate in securities or indulge in any trade or allow official residence for professional work by family members.
It must be acknowledged that these are quite radical steps, especially in view of the fact that there is no legal mechanism to deal with the complaints against judges and an in-house system that exists doesn’t really work, which was evident in the way complaints against Justice PD Dinakaran and Justice Nirmal Yadav were dealt with. Impeachment has not been able to remove even one judge for misconduct in the past 60 years because of the stiff conditionalities and reluctance of the politicians to antagonise the judiciary.
But the proposed bill falls short of expectations in one crucial area. The oversight committee consists of a majority of ex-officio members. To expect sitting judges to sit on judgment over the misconduct of brother judges, who could be their senior (if the complaint is against the CJI, for example) or with whom they may be sharing the bench every day, is expecting too much. So is the case with the attorney general who has to practice in their courts. The scrutiny panel too suffers from the same shortcoming and can’t be expected to do any better than the in-house mechanism that exists now. Apart from reluctance, ex-officio members may be short on time and motivation. As Prashant Bhushan, senior advocate campaigning for judicial accountability for many years, has been pleading, such a body has to be an independent and permanent body, members of which should be drawn from a wider catchment area and involving various other institutions like the leaders of opposition, human rights bodies, CEC, CVC and CAG etc.
The problem with the nature of the oversight committee becomes even more acute when we realise that the judges self-appoint themselves through a collegium, which consists of a group of senior judges of the apex court. This is an opaque system and needs to be replaced with an outside body, without which any talk about transparency and accountability in judiciary is meaningless. The bill should start from there, instead of overlooking it.
The judicial accountability bill proposes an oversight committee that is neither independent nor permanent in nature
The Judicial Standards and Accountability Bill of 2010, which was approved by the union cabinet on October 5, is yet another formulation in the decades-long endeavour of the government to bring in transparency and accountability in the higher judiciary. Meant to replace the Judiciary (Inquiry) Act of 1968, the latest formulation provides for a “national oversight committee” with which anyone can lodge a complaint against the higher judiciary, including the chief justice of India (CJI) and the chief justices of high courts. The oversight committee will be a five-member body, which will be headed by a retired CJI, one judge each from the apex court and the high court who will be nominated by the CJI, the attorney general and an eminent person nominated by the president.
Once a complaint is received, it will be forwarded to a “scrutiny panel”. If the complaint is against a supreme court judge, the panel will consist of a former CJI and two sitting apex court judges and if it is against a high court judge, the panel will have a former chief justice of high court and two of its sitting judges. This panel will submit its report in three months. In case the complaint is against a chief justice, the oversight committee itself will carry out the scrutiny. If charges are found correct, an “investigation committee” will go into it and the action will follow. If charges are not serious, the oversight committee will issue an advisory or warning. But if serious, the judge will be requested to resign, failing which the oversight committee will recommend his removal to the president. In such an eventuality, the impeachment proceeding will begin as per the existing system of impeachment.
There are two other key features in the proposed bill. One, the judges will be required to file annual return of assets and liabilities of their own, their spouse and children and will be put up on the websites of the respective courts. Two, the judges will be prohibited from having close association with lawyers who practise in the same court, permit relatives to appear before him or hear a case involving their family, close relatives or friends. Besides, there are other don’ts like not to contest elections to any club, association connected with the law or any court, not to air views on political issues or pending cases and not to speculate in securities or indulge in any trade or allow official residence for professional work by family members.
It must be acknowledged that these are quite radical steps, especially in view of the fact that there is no legal mechanism to deal with the complaints against judges and an in-house system that exists doesn’t really work, which was evident in the way complaints against Justice PD Dinakaran and Justice Nirmal Yadav were dealt with. Impeachment has not been able to remove even one judge for misconduct in the past 60 years because of the stiff conditionalities and reluctance of the politicians to antagonise the judiciary.
But the proposed bill falls short of expectations in one crucial area. The oversight committee consists of a majority of ex-officio members. To expect sitting judges to sit on judgment over the misconduct of brother judges, who could be their senior (if the complaint is against the CJI, for example) or with whom they may be sharing the bench every day, is expecting too much. So is the case with the attorney general who has to practice in their courts. The scrutiny panel too suffers from the same shortcoming and can’t be expected to do any better than the in-house mechanism that exists now. Apart from reluctance, ex-officio members may be short on time and motivation. As Prashant Bhushan, senior advocate campaigning for judicial accountability for many years, has been pleading, such a body has to be an independent and permanent body, members of which should be drawn from a wider catchment area and involving various other institutions like the leaders of opposition, human rights bodies, CEC, CVC and CAG etc.
The problem with the nature of the oversight committee becomes even more acute when we realise that the judges self-appoint themselves through a collegium, which consists of a group of senior judges of the apex court. This is an opaque system and needs to be replaced with an outside body, without which any talk about transparency and accountability in judiciary is meaningless. The bill should start from there, instead of overlooking it.
Monday, October 4, 2010
They blew the whistle and came to grief
Governance Now, Sept 16-30
Abhijit Ghosh
Ghosh, a former general manager of the Central Bank of India who had also worked as an adviser on deputation to the CVC during 2000-05, had complained against the then bank chairperson H A Daruwalla for collecting donations from customers for her alma mater, favouring a travel agency in which her sister worked and forwarding loans of
Rs 12 crore which turned into non-performing assets (NPAs) in less than six months.
Ghosh used the whistleblower resolution (PIDPI of 2004) to approach the CVC in 2005. Later, the finance ministry found the charges correct and sought CVC’s guidance in proceeding against Daruwalla earlier this year because she had retired on December 31, 2008.
But Ghosh faced the music. His identity was disclosed to Daruwala and he was charged with “maligning” her image. The CVC didn’t intervene when he was suspended in October 2008. Former CJI R C Lahoti wrote to the CVC on his behalf but it was ignored. Ghosh retired on March 31, 2010. Just two days before his retirement the suspension was revoked but he is waiting for some of his dues to be cleared.
Ghosh meanwhile approached the Delhi High Court where his case is pending. Ghosh’s RTI applications provided some startling disclosures. In reply to his applications, the bank disclosed it had spent Rs 69.24 lakh on lawyers during 2008-10 to defend Daruwalla. Of this, Rs 48.5 lakh went to Congress spokesman and lawyer Abhishek Manu Singhvi. The bank also revealed that the decision to engage lawyers had been taken by Daruwalla herself, against whom Ghosh had made corruption charges.
Azam Siddiqui
As a divisional engineer of BSNL in Allahabad, Siddiqui exposed the illegal routing of international calls by Reliance Infocomm, which led to the unearthing of a series of such scams in several parts of the country. When BSNL didn’t take note of it, he wrote to CVC in 2005 under the whistleblowers’ resolution of 2004. CBI and DoT found the charges correct. Three senior officials were transferred and Rs 5 lakh recovered from Reliance Infocomm. Similar probes were ordered in other districts.
But CVC, in its attempt to get the BSNL’s comments/explanations, disclosed his identity and the victimisation began. False charges about unauthorised leave and doing departmental work without written permission were made. His promotion has been held up since 2007.
Siddiqui challenged departmental proceedings and also approached CVC for protection. CVC held that he was not being victimised even after the Patna high court asked it to protect him. The legal battle is now being fought in the supreme court.
S K Nagarwal
Nagarwal, a deputy chief engineer with the railways in Jaipur, had exposed corruption in laying the Eklakhi-Balurghat broad gauge line in West Bengal’s Malda in 2003. This led to 26 railway officials getting chargesheets but he is not made witness in any of the cases.
His identity too was blown off by the CVC. His complaint was forwarded to the railways and soon it found its way to the contractors, who started making threat calls to him.
His woes didn’t stop there. He was harassed with charges like making excess payment for civil works (through fake documents which were subsequently found out), wrongly claiming HRA etc and his promotion to the selection grade was stalled. He was transferred from Malda to Katihar, Guwahati, Jaipur, Ajmer and now he is back in Jaipur. He wrote several letters to CVC for protection but received no response. He is fighting a legal battle and his case is pending with the Rajasthan high court.
Sudhir Chopra
An officer of the Indian Defence Estate Service in Pune, Chopra had exposed corruption in the department by pointing out in 1998 that the ex-maharaja of Kota had been paid Rs 8 crore as “rent” over a period of time while, following the land
ceiling law, he was to be paid only Rs 2 lakh as compensation for the
entire land.
While nothing happened to the case, he was transferred to the Northeast for five years, against a normal tenure of two years. After coming back in 2005, he complained to CVC under the whistleblower resolution. He got no protection and his promotion has been held up since 2007 on flimsy grounds.
The CVC took a bizarre stand that he is not entitled to protection as his complaint was not treated under the whistleblower resolution of 2004.
It also closed the inquiry into the land scam in 2006 saying that the defence ministry was “stonewalling” it. A classic case in which non-cooperation by the department concerned derails the CVC. The whistleblower bill formalises such derailment.
Abhijit Ghosh
Ghosh, a former general manager of the Central Bank of India who had also worked as an adviser on deputation to the CVC during 2000-05, had complained against the then bank chairperson H A Daruwalla for collecting donations from customers for her alma mater, favouring a travel agency in which her sister worked and forwarding loans of
Rs 12 crore which turned into non-performing assets (NPAs) in less than six months.
Ghosh used the whistleblower resolution (PIDPI of 2004) to approach the CVC in 2005. Later, the finance ministry found the charges correct and sought CVC’s guidance in proceeding against Daruwalla earlier this year because she had retired on December 31, 2008.
But Ghosh faced the music. His identity was disclosed to Daruwala and he was charged with “maligning” her image. The CVC didn’t intervene when he was suspended in October 2008. Former CJI R C Lahoti wrote to the CVC on his behalf but it was ignored. Ghosh retired on March 31, 2010. Just two days before his retirement the suspension was revoked but he is waiting for some of his dues to be cleared.
Ghosh meanwhile approached the Delhi High Court where his case is pending. Ghosh’s RTI applications provided some startling disclosures. In reply to his applications, the bank disclosed it had spent Rs 69.24 lakh on lawyers during 2008-10 to defend Daruwalla. Of this, Rs 48.5 lakh went to Congress spokesman and lawyer Abhishek Manu Singhvi. The bank also revealed that the decision to engage lawyers had been taken by Daruwalla herself, against whom Ghosh had made corruption charges.
Azam Siddiqui
As a divisional engineer of BSNL in Allahabad, Siddiqui exposed the illegal routing of international calls by Reliance Infocomm, which led to the unearthing of a series of such scams in several parts of the country. When BSNL didn’t take note of it, he wrote to CVC in 2005 under the whistleblowers’ resolution of 2004. CBI and DoT found the charges correct. Three senior officials were transferred and Rs 5 lakh recovered from Reliance Infocomm. Similar probes were ordered in other districts.
But CVC, in its attempt to get the BSNL’s comments/explanations, disclosed his identity and the victimisation began. False charges about unauthorised leave and doing departmental work without written permission were made. His promotion has been held up since 2007.
Siddiqui challenged departmental proceedings and also approached CVC for protection. CVC held that he was not being victimised even after the Patna high court asked it to protect him. The legal battle is now being fought in the supreme court.
S K Nagarwal
Nagarwal, a deputy chief engineer with the railways in Jaipur, had exposed corruption in laying the Eklakhi-Balurghat broad gauge line in West Bengal’s Malda in 2003. This led to 26 railway officials getting chargesheets but he is not made witness in any of the cases.
His identity too was blown off by the CVC. His complaint was forwarded to the railways and soon it found its way to the contractors, who started making threat calls to him.
His woes didn’t stop there. He was harassed with charges like making excess payment for civil works (through fake documents which were subsequently found out), wrongly claiming HRA etc and his promotion to the selection grade was stalled. He was transferred from Malda to Katihar, Guwahati, Jaipur, Ajmer and now he is back in Jaipur. He wrote several letters to CVC for protection but received no response. He is fighting a legal battle and his case is pending with the Rajasthan high court.
Sudhir Chopra
An officer of the Indian Defence Estate Service in Pune, Chopra had exposed corruption in the department by pointing out in 1998 that the ex-maharaja of Kota had been paid Rs 8 crore as “rent” over a period of time while, following the land
ceiling law, he was to be paid only Rs 2 lakh as compensation for the
entire land.
While nothing happened to the case, he was transferred to the Northeast for five years, against a normal tenure of two years. After coming back in 2005, he complained to CVC under the whistleblower resolution. He got no protection and his promotion has been held up since 2007 on flimsy grounds.
The CVC took a bizarre stand that he is not entitled to protection as his complaint was not treated under the whistleblower resolution of 2004.
It also closed the inquiry into the land scam in 2006 saying that the defence ministry was “stonewalling” it. A classic case in which non-cooperation by the department concerned derails the CVC. The whistleblower bill formalises such derailment.
CVC: A SLUMBERING WATCHDOG
Governance Now, Sept 16-30
Forget teeth, it does not even bark any more
Manoranjan Kumar hit the headlines a couple of months ago when former chief justice of India R C Lahoti took up his case with the prime minister and the UPA chairperson, seeking his protection as a whistleblower. Nothing came of it, and nothing probably will, but his case is instructive and hence bears repetition.
An Indian Economic Service officer, Kumar was deputy chairman with an additional charge as chief vigilance officer (CVO) of the Kandla Port Trust in 2007 when he exposed a series of corruption cases involving the port’s land. He presented nine reports to the Central Vigilance Commission (CVC) pointing out how more than 16,000 acre of land had been given for salt manufacturing, warehousing, liquid storage etc to private bodies at nominal prices which were then renewed in violation of the original contracts. He said these deals led to a revenue loss of over Rs 6,000 crore.
CVC found merit in the reports and handed over the cases to the CBI. The cases are in various stages of prosecution at present but Kumar is not made a witness in any of these cases.
Meanwhile, Kumar was transferred in January 2008 to his parent cadre, the finance ministry, on the ground of “poor performance”. But he was neither given a posting nor salary. He approached the CVC which told him that nothing could be done because he was “not a whistleblower” and so, the protection under the government of India resolution on Public Interest Disclosures and Protection of Informer (PIDPI) 2004 was not available to him. (PIDPI was issued following the murder of IITian Satyendra Dube to protect whistleblowers and the CVC was made the “designated agency” for its implementation.) He was also told that he was “not a regular CVO” because he was holding additional charge as the CVO and, hence, could not be given protection that is available to other CVOs either.
Kumar approached the Central Administrative Tribunal (CAT) and got the transfer cancelled. Yet, the finance ministry didn’t give him any posting, or salary. The ministry challenged the CAT order in the Delhi High Court where the matter is pending now. Mercifully, the high court directed in February 2009 that Kumar be given his salary, and promotion that would be due in course. So, he now gets salary but has been without a job since January 2008.
When the government introduced the whistleblower bill, making CVC the “competent authority”, in the Lok Sabha on August 26, Kumar had this to say: “If the CVC fails to protect its own arm, the CVO, despite clear guidelines and rules, should CVC be given the task of protecting the whistleblowers? What has the CVC done to protect civil servants who are protecting the exchequer to merit such responsibility?”
Kumar is not the only one questioning the CVC’s credentials or functioning. There are several other whistleblowers who met a similar fate (see the boxes), prompting Lahoti to point out in his letters that every whistleblower who went to the CVC in recent years “came to grief”. These whistleblowers have charged the CVC with not just disclosing their identity—in some cases by directly forwarding their written complaints to those against whom complaints were made—but also that the CVC provided them no protection whatsoever, forcing them to seek help from the courts of law.
A reading of these cases would make it clear that there is no transparency or accountability in the functioning of the CVC, parimarily because it is answerable to none. It has not even prepared its annual reports since 2008. In any case, its annual reports never got attention of Parliament. Arvind Kejriwal, an RTI activist who is a member of the Vigilance Advisory Committee that oversees CVC’s functioning, says “there are no checks and balances” and therefore, no remedy for a series of charges of nepotism made against the top corruption watchdog. “This committee is a farce and hardly ever meets,” he adds.
If all the whistleblowers are forced to approach the court for their protection, there is little justification in making the CVC the “competent authority” in the whistleblower bill.
But these are not the only issues with the CVC. Seeking an overhaul of the anti-corruption mechanism, Kejriwal has written an open letter to the UPA chairperson describing the CVC as “a toothless body; it neither has resources nor powers to investigate and prosecute”.
Consider these facts about CVC:
* It is an advisory/recommending body, whose views are not binding on anyone.
* It is not an investigating agency. It works through the CBI and departmental vigilance officials but has no direct or effective control over any of them. CBI is under the administrative control of DoPT and the vigilance officials that of their respective departments. The only investigation it does on its own is civil works, as in case with the Commonwealth Games, but even here, it can and has only recommend action, not taken any.
* It can’t initiate inquiry against senior bureaucrats (joint secretary or above) for which it needs prior permission of the government, in what is better known as the “single directive”.
* It can’t direct investigation against the political executive.
* It has a staff strength of less than 200 to check corruption in more than 1,500 central government ministries and departments.
* It can’t register an FIR or investigate any criminal case; it deals only with vigilance or disciplinary matters.
“CVC is a mere ornamental body. It can’t even ask the CBI to register an FIR,” comments Vineet Narain, a veteran journalist who exposed the Hawala scam in the 1990s. “The government will never give autonomy to CVC or CBI. I had said it to the Supreme Court then”, he recalls. It was his efforts that led to the historic 1997 apex court judgment that bears his name and courtesy which CVC got statutory status, supervisory power over the CBI and the leader of opposition was made part of the selection process of the central vigilance commissioner.
Former CVC Pratyush Sinha admitted these shortcomings in an interview shortly before he demitted office in August. He and his predecessor P Shankar were part of a deliberation on the subject of “Deficiencies in the present anti-corruption system” at the India International Centre on August 10. It left nothing to imagination when they endorsed the recommendations which, among other things, said the “CVC should be placed under the superintendence of the Lokpal” to look after only the vigilance cases!
Karnataka Lokayukta Justice Santosh Hegde, former CEC J M Lyngdoh and advocate Prashant Bhushan were some of the other members of that panel. Their first two recommendations were: The government should immediately institute a “Lokpal” at the centre and the “Lokayukta” in the states (which don’t have them) with adequate powers to act as “apex, independent and effective” anti-corruption agencies.
If these are not enough, appointment of retired or about-to-retire bureaucrats as CVC has taken away even the pretence of it being a competent or impartial or non-pliable body to fight corruption. P J Thomas, the incumbent CVC, was appointed despite a red flag from leader of the opposition Sushma Swaraj, who is part of the three-member selection committee. Thomas was not only once an accused in a palm oil scam in Kerala, but days before he quit as telecom secretary, he had armed himself with a law ministry opinion that investigation into the 2G spectrum scam was beyond the purview of the CAG and the CBI. (The CBI is currently investigating the scam in which his former boss, telecom minister A Raja, is the prime accused.) What message does his appointment give to the corrupt of the country?
Given all these failings, entrusting CVC with an additional responsibility under the whistleblower bill raises serious doubts about the government’s intention to fight corruption. It must, though, be said that the bill makes a small concession by way of giving CVC powers to impose penalty on officials for not cooperating in investigation or revealing identity of the whistleblower and some power to punish with imprisonment in case of false or frivolous charges or “restoration of status quo ante” if a whistleblower is found to be harassed by way of transfer etc.
But these are of little consequence given the serious flaws in the whistleblower bill itself (See “Whistleblowers bill is self-defeating”). Moreover, these are not the real issues. The real issue is whether the CVC is serving any purpose at all and should we continue with it. If it was meant to be a corruption watchdog, it stopped barking long ago...once the first CVC, N Vittal, demitted office.
The real need is, as Justice Hegde et al proposed, for a Lokpal-like statutory body with “real” powers to investigate and prosecute the corrupt, especially senior bureaucrats and the political executive, because when they are involved the whistleblowers come to grief and the judicial process gets derailed. n
Forget teeth, it does not even bark any more
Manoranjan Kumar hit the headlines a couple of months ago when former chief justice of India R C Lahoti took up his case with the prime minister and the UPA chairperson, seeking his protection as a whistleblower. Nothing came of it, and nothing probably will, but his case is instructive and hence bears repetition.
An Indian Economic Service officer, Kumar was deputy chairman with an additional charge as chief vigilance officer (CVO) of the Kandla Port Trust in 2007 when he exposed a series of corruption cases involving the port’s land. He presented nine reports to the Central Vigilance Commission (CVC) pointing out how more than 16,000 acre of land had been given for salt manufacturing, warehousing, liquid storage etc to private bodies at nominal prices which were then renewed in violation of the original contracts. He said these deals led to a revenue loss of over Rs 6,000 crore.
CVC found merit in the reports and handed over the cases to the CBI. The cases are in various stages of prosecution at present but Kumar is not made a witness in any of these cases.
Meanwhile, Kumar was transferred in January 2008 to his parent cadre, the finance ministry, on the ground of “poor performance”. But he was neither given a posting nor salary. He approached the CVC which told him that nothing could be done because he was “not a whistleblower” and so, the protection under the government of India resolution on Public Interest Disclosures and Protection of Informer (PIDPI) 2004 was not available to him. (PIDPI was issued following the murder of IITian Satyendra Dube to protect whistleblowers and the CVC was made the “designated agency” for its implementation.) He was also told that he was “not a regular CVO” because he was holding additional charge as the CVO and, hence, could not be given protection that is available to other CVOs either.
Kumar approached the Central Administrative Tribunal (CAT) and got the transfer cancelled. Yet, the finance ministry didn’t give him any posting, or salary. The ministry challenged the CAT order in the Delhi High Court where the matter is pending now. Mercifully, the high court directed in February 2009 that Kumar be given his salary, and promotion that would be due in course. So, he now gets salary but has been without a job since January 2008.
When the government introduced the whistleblower bill, making CVC the “competent authority”, in the Lok Sabha on August 26, Kumar had this to say: “If the CVC fails to protect its own arm, the CVO, despite clear guidelines and rules, should CVC be given the task of protecting the whistleblowers? What has the CVC done to protect civil servants who are protecting the exchequer to merit such responsibility?”
Kumar is not the only one questioning the CVC’s credentials or functioning. There are several other whistleblowers who met a similar fate (see the boxes), prompting Lahoti to point out in his letters that every whistleblower who went to the CVC in recent years “came to grief”. These whistleblowers have charged the CVC with not just disclosing their identity—in some cases by directly forwarding their written complaints to those against whom complaints were made—but also that the CVC provided them no protection whatsoever, forcing them to seek help from the courts of law.
A reading of these cases would make it clear that there is no transparency or accountability in the functioning of the CVC, parimarily because it is answerable to none. It has not even prepared its annual reports since 2008. In any case, its annual reports never got attention of Parliament. Arvind Kejriwal, an RTI activist who is a member of the Vigilance Advisory Committee that oversees CVC’s functioning, says “there are no checks and balances” and therefore, no remedy for a series of charges of nepotism made against the top corruption watchdog. “This committee is a farce and hardly ever meets,” he adds.
If all the whistleblowers are forced to approach the court for their protection, there is little justification in making the CVC the “competent authority” in the whistleblower bill.
But these are not the only issues with the CVC. Seeking an overhaul of the anti-corruption mechanism, Kejriwal has written an open letter to the UPA chairperson describing the CVC as “a toothless body; it neither has resources nor powers to investigate and prosecute”.
Consider these facts about CVC:
* It is an advisory/recommending body, whose views are not binding on anyone.
* It is not an investigating agency. It works through the CBI and departmental vigilance officials but has no direct or effective control over any of them. CBI is under the administrative control of DoPT and the vigilance officials that of their respective departments. The only investigation it does on its own is civil works, as in case with the Commonwealth Games, but even here, it can and has only recommend action, not taken any.
* It can’t initiate inquiry against senior bureaucrats (joint secretary or above) for which it needs prior permission of the government, in what is better known as the “single directive”.
* It can’t direct investigation against the political executive.
* It has a staff strength of less than 200 to check corruption in more than 1,500 central government ministries and departments.
* It can’t register an FIR or investigate any criminal case; it deals only with vigilance or disciplinary matters.
“CVC is a mere ornamental body. It can’t even ask the CBI to register an FIR,” comments Vineet Narain, a veteran journalist who exposed the Hawala scam in the 1990s. “The government will never give autonomy to CVC or CBI. I had said it to the Supreme Court then”, he recalls. It was his efforts that led to the historic 1997 apex court judgment that bears his name and courtesy which CVC got statutory status, supervisory power over the CBI and the leader of opposition was made part of the selection process of the central vigilance commissioner.
Former CVC Pratyush Sinha admitted these shortcomings in an interview shortly before he demitted office in August. He and his predecessor P Shankar were part of a deliberation on the subject of “Deficiencies in the present anti-corruption system” at the India International Centre on August 10. It left nothing to imagination when they endorsed the recommendations which, among other things, said the “CVC should be placed under the superintendence of the Lokpal” to look after only the vigilance cases!
Karnataka Lokayukta Justice Santosh Hegde, former CEC J M Lyngdoh and advocate Prashant Bhushan were some of the other members of that panel. Their first two recommendations were: The government should immediately institute a “Lokpal” at the centre and the “Lokayukta” in the states (which don’t have them) with adequate powers to act as “apex, independent and effective” anti-corruption agencies.
If these are not enough, appointment of retired or about-to-retire bureaucrats as CVC has taken away even the pretence of it being a competent or impartial or non-pliable body to fight corruption. P J Thomas, the incumbent CVC, was appointed despite a red flag from leader of the opposition Sushma Swaraj, who is part of the three-member selection committee. Thomas was not only once an accused in a palm oil scam in Kerala, but days before he quit as telecom secretary, he had armed himself with a law ministry opinion that investigation into the 2G spectrum scam was beyond the purview of the CAG and the CBI. (The CBI is currently investigating the scam in which his former boss, telecom minister A Raja, is the prime accused.) What message does his appointment give to the corrupt of the country?
Given all these failings, entrusting CVC with an additional responsibility under the whistleblower bill raises serious doubts about the government’s intention to fight corruption. It must, though, be said that the bill makes a small concession by way of giving CVC powers to impose penalty on officials for not cooperating in investigation or revealing identity of the whistleblower and some power to punish with imprisonment in case of false or frivolous charges or “restoration of status quo ante” if a whistleblower is found to be harassed by way of transfer etc.
But these are of little consequence given the serious flaws in the whistleblower bill itself (See “Whistleblowers bill is self-defeating”). Moreover, these are not the real issues. The real issue is whether the CVC is serving any purpose at all and should we continue with it. If it was meant to be a corruption watchdog, it stopped barking long ago...once the first CVC, N Vittal, demitted office.
The real need is, as Justice Hegde et al proposed, for a Lokpal-like statutory body with “real” powers to investigate and prosecute the corrupt, especially senior bureaucrats and the political executive, because when they are involved the whistleblowers come to grief and the judicial process gets derailed. n
Whistleblowers beware. The government’s here to help!
Governance Now, Sept 16-30
Ronald Reagan was right. The nine most terryfying words in the English
language are indeed, “I’m from the government and I’m here to help”!
Seven years in the making, the whistleblower bill or the ‘Public Interest Disclosure and Protection to Persons Making the Disclosures Bill, 2010’ was finally introduced in Lok Sabha on August 26. This long preparation has been a waste. There are several provisions that defeat the very purpose for which it is being legislated.
These provisions are as follows:
* No action shall be taken if the disclosure is anonymous. (Clause 3(6))
The purpose of the exercise is to get credible information to fight corruption. So what if it is anonymous? In any case, as the very name of the bill suggests, it is about “protection” to the whistleblower, not his identity.
* No complaint can be entertained against any member of the armed forces or anything related to the armed forces, not even when they are involved with “maintenance of public order”. (Clause 3 (1))
This is nothing short of blasphemy, given the growing number of scams involving even generals and brigadiers in land deals, diversion of petrol, diesel and liquor, purchase of arms and ammunitions, uniforms and other equipment in recent years. Incidents of rape of women and killing of innocent civilians in the name of fighting militancy by the men in uniform in Jammu and Kashmir and the Northeastern states are not exactly rare. That is why a debate is on in the country about restricting powers given to the armed forces in troubled areas under the Armed Forces (Special Powers) Act.
* If information is found worthy of investigation, the “competent authority”, that is, central or state vigilance commissioners, would need to take “comments or explanation or report” from the “head of the department (HoD) of the organisation or authority, board or corporation concerned” before proceeding further. (Clause 6(3))
What if the HoD is involved in the wrongdoing, which is often the case? Or his close confidants? Will he cooperate and confirm the charges of corruption? Whistleblowers face threat not because they seek to expose clerks but the high and the mighty. This is an obvious contradiction and will kill the bill, says RTI activist Arvind Kejriwal.
* The identity of a complainant can be disclosed “if the competent authority is of the opinion that it has, for the purpose of seeking comments or explanation or report from them under sub-section (3) on the public disclosure, becomes necessary to reveal the identity of the public servant to the HoD of the organisation or authority, board or corporation concerned or office concerned, the competent authority may reveal the identity…” (Clause 4)
This defeats the whole purpose of the proposed law. There is absolutely no need for the bill as this provision provides sufficient excuse to blow the cover of the whistleblower.
* In the course of inquiry the competent authority, which will have powers of a civil court, can’t force anyone to part with any information or document if it is “likely to prejudicially affect the interest of the sovereignty and integrity of India, the security of the state, friendly relations with foreign state, public order, decency or morally…” (Clause 7(1))
What if the corruption charges are against a person or persons holding such information or documents? Kejriwal wonders if the government’s position is that our national interest is safer in the hand of the crooks. He says there is no such bar on any other court or the information commissioners and there is no reason why that should be the case with the CVC/state vigilance commissioners.
* No complaint can be made “after the expiry of five years from the date on which the action complained against is alleged to have taken place.” (Clause 5)
This will lead to a situation in which the time of the offence will be investigated first and if found to be five years’ old or more, the matter will be dismissed. Are we to understand that corruption too has an
expiry date?
* In case a person is found to have made a disclosure “mala-fidely” he would be punished for up to two years of imprisonment. (Clause 15)
It is not rare for the vigilance or other investigating agency to do a shoddy job. Now that the bill provides for punishment for “mala fide” disclosure, there is an additional reason to do a shoddy job and punish the whistleblower.
* The bill is silent on the private sector.
Are we to understand that there is no corruption in the private sector? Or that corruption in the private sector is none of our business? What about the public-private partnership (PPP) projects that the government is promoting in a big way, not only in the infrastructure sector but also in the social sector?
Ronald Reagan was right. The nine most terryfying words in the English
language are indeed, “I’m from the government and I’m here to help”!
Seven years in the making, the whistleblower bill or the ‘Public Interest Disclosure and Protection to Persons Making the Disclosures Bill, 2010’ was finally introduced in Lok Sabha on August 26. This long preparation has been a waste. There are several provisions that defeat the very purpose for which it is being legislated.
These provisions are as follows:
* No action shall be taken if the disclosure is anonymous. (Clause 3(6))
The purpose of the exercise is to get credible information to fight corruption. So what if it is anonymous? In any case, as the very name of the bill suggests, it is about “protection” to the whistleblower, not his identity.
* No complaint can be entertained against any member of the armed forces or anything related to the armed forces, not even when they are involved with “maintenance of public order”. (Clause 3 (1))
This is nothing short of blasphemy, given the growing number of scams involving even generals and brigadiers in land deals, diversion of petrol, diesel and liquor, purchase of arms and ammunitions, uniforms and other equipment in recent years. Incidents of rape of women and killing of innocent civilians in the name of fighting militancy by the men in uniform in Jammu and Kashmir and the Northeastern states are not exactly rare. That is why a debate is on in the country about restricting powers given to the armed forces in troubled areas under the Armed Forces (Special Powers) Act.
* If information is found worthy of investigation, the “competent authority”, that is, central or state vigilance commissioners, would need to take “comments or explanation or report” from the “head of the department (HoD) of the organisation or authority, board or corporation concerned” before proceeding further. (Clause 6(3))
What if the HoD is involved in the wrongdoing, which is often the case? Or his close confidants? Will he cooperate and confirm the charges of corruption? Whistleblowers face threat not because they seek to expose clerks but the high and the mighty. This is an obvious contradiction and will kill the bill, says RTI activist Arvind Kejriwal.
* The identity of a complainant can be disclosed “if the competent authority is of the opinion that it has, for the purpose of seeking comments or explanation or report from them under sub-section (3) on the public disclosure, becomes necessary to reveal the identity of the public servant to the HoD of the organisation or authority, board or corporation concerned or office concerned, the competent authority may reveal the identity…” (Clause 4)
This defeats the whole purpose of the proposed law. There is absolutely no need for the bill as this provision provides sufficient excuse to blow the cover of the whistleblower.
* In the course of inquiry the competent authority, which will have powers of a civil court, can’t force anyone to part with any information or document if it is “likely to prejudicially affect the interest of the sovereignty and integrity of India, the security of the state, friendly relations with foreign state, public order, decency or morally…” (Clause 7(1))
What if the corruption charges are against a person or persons holding such information or documents? Kejriwal wonders if the government’s position is that our national interest is safer in the hand of the crooks. He says there is no such bar on any other court or the information commissioners and there is no reason why that should be the case with the CVC/state vigilance commissioners.
* No complaint can be made “after the expiry of five years from the date on which the action complained against is alleged to have taken place.” (Clause 5)
This will lead to a situation in which the time of the offence will be investigated first and if found to be five years’ old or more, the matter will be dismissed. Are we to understand that corruption too has an
expiry date?
* In case a person is found to have made a disclosure “mala-fidely” he would be punished for up to two years of imprisonment. (Clause 15)
It is not rare for the vigilance or other investigating agency to do a shoddy job. Now that the bill provides for punishment for “mala fide” disclosure, there is an additional reason to do a shoddy job and punish the whistleblower.
* The bill is silent on the private sector.
Are we to understand that there is no corruption in the private sector? Or that corruption in the private sector is none of our business? What about the public-private partnership (PPP) projects that the government is promoting in a big way, not only in the infrastructure sector but also in the social sector?
SC directive a green light to violations
Governance Now, Sept 16-30
Approaching it only after all statutory clearances have been given will result in ‘fait accompli’
Chief justice of India S H Kapadia has set a new norm for approaching the ‘green bench’ of the supreme court that he heads. “In short, we want all statutory clearances from statutory authorities in place henceforth. After this only will it (environmental dispute) come to the supreme court. Henceforth this is the norm,” the bench noted.
At first glance, it may seem to be quite logical as the court also explained that this norm is aimed at preventing a situation in which parties obtain an environment clearance from the apex court in the initial stages, later fail to satisfy statutory norms and then start a “second round of litigation”.
But it isn’t really so logical because of the way the ministry of environment and forests (MoEF) functions and grants its clearances. The court’s directive has come in connection with Mayawati’s Noida park memorial. The MoEF has been changing its position before the apex court – saying at times that the project needs no environment impact assessment (EIA) study and at other times, that it does. While the litigation is on, construction of the memorial is complete, save for the final touches. All the trees that needed to be felled, have been felled. The statues have been installed and the damage to the environment (it is next to the Okhla bird sanctuary) already done. For all practical purposes, the memorial is a ‘fait accompli’.
Let us take another example, say the Niyamgiri project of Vedanta which was in news recently and in which Justice Kapadia’s bench played a role – by granting ‘in-principle’ forest clearance on August 8, 2008 for mining the Niyamgiri.
The ministry’s records show this project, which involved a smelting plant in Jharsuguda, a refinery in Lanjigarh and mining of the Niyamgiri, got a series of clearances at different points of time, starting from September 2004 to December 2008. The only one pending was that of the ‘final’ forest clearance, which the MoEF denied last month.
Let us say, Vedanta moves the apex court now, as indeed it might. The ground reality today is this: The smelting plant started its operation in 2008. The refinery started operation in 2007. Expansion of the refinery is 60 percent complete. A conveyor belt to the mining site is partially built. So is the case with a ‘mining access road’. All these violate environment, forest and tribal laws. What can the apex court do now? Can it undo the smelting plant, the refinery or the expansion of the refinery?
As MoEF confesses now, it gave environment clearance to the refinery in 2004 which was not only based on a faulty EIA study but on an EIA which was different from the one on the basis of which the public hearing was conducted! And that this involved forest land for which no clearance was sought or given. The plant became operational in 2007. Can the supreme court undo the damage?
There were similar charges with the smelting plant also, which was given clearance in 2007 and became operational in 2008. In the case of French company Lafarge’s mining of the Khasi hills in Meghalaya for limestone, the mining started in 2006 after MoEF gave all clearances. Violations were “detected” only
after that. The supreme court ordered a stay in February this year. What can it do
beyond compounding the offence by way of compensatory afforestation and other
financial burden for local development? Sooner than later, it will have to lift its stay.
The real problem lies with the MoEF’s faulty policy of granting environment and forest clearances, which are not only given separately but also in various stages involving a time span of several years. In the meanwhile, the projects are allowed to proceed and by the time final clearance comes, the projects are already a ‘fait accompli’.
When the laws are followed mostly in their breach, Justice Kapadia’s new norm is an open invitation to indulge in more of the same. What will happen when challenging a project in the initial stage is denied? Won’t it encourage violations?
The solution might lie in replacing piecemeal clearances with time-bound, one-shot clearances. But there is neither political nor corporate motivation for such a change in policy. As long as the government keeps giving clearances in fits and starts it does seem like unsound logic to insist that justice is available only once.
Approaching it only after all statutory clearances have been given will result in ‘fait accompli’
Chief justice of India S H Kapadia has set a new norm for approaching the ‘green bench’ of the supreme court that he heads. “In short, we want all statutory clearances from statutory authorities in place henceforth. After this only will it (environmental dispute) come to the supreme court. Henceforth this is the norm,” the bench noted.
At first glance, it may seem to be quite logical as the court also explained that this norm is aimed at preventing a situation in which parties obtain an environment clearance from the apex court in the initial stages, later fail to satisfy statutory norms and then start a “second round of litigation”.
But it isn’t really so logical because of the way the ministry of environment and forests (MoEF) functions and grants its clearances. The court’s directive has come in connection with Mayawati’s Noida park memorial. The MoEF has been changing its position before the apex court – saying at times that the project needs no environment impact assessment (EIA) study and at other times, that it does. While the litigation is on, construction of the memorial is complete, save for the final touches. All the trees that needed to be felled, have been felled. The statues have been installed and the damage to the environment (it is next to the Okhla bird sanctuary) already done. For all practical purposes, the memorial is a ‘fait accompli’.
Let us take another example, say the Niyamgiri project of Vedanta which was in news recently and in which Justice Kapadia’s bench played a role – by granting ‘in-principle’ forest clearance on August 8, 2008 for mining the Niyamgiri.
The ministry’s records show this project, which involved a smelting plant in Jharsuguda, a refinery in Lanjigarh and mining of the Niyamgiri, got a series of clearances at different points of time, starting from September 2004 to December 2008. The only one pending was that of the ‘final’ forest clearance, which the MoEF denied last month.
Let us say, Vedanta moves the apex court now, as indeed it might. The ground reality today is this: The smelting plant started its operation in 2008. The refinery started operation in 2007. Expansion of the refinery is 60 percent complete. A conveyor belt to the mining site is partially built. So is the case with a ‘mining access road’. All these violate environment, forest and tribal laws. What can the apex court do now? Can it undo the smelting plant, the refinery or the expansion of the refinery?
As MoEF confesses now, it gave environment clearance to the refinery in 2004 which was not only based on a faulty EIA study but on an EIA which was different from the one on the basis of which the public hearing was conducted! And that this involved forest land for which no clearance was sought or given. The plant became operational in 2007. Can the supreme court undo the damage?
There were similar charges with the smelting plant also, which was given clearance in 2007 and became operational in 2008. In the case of French company Lafarge’s mining of the Khasi hills in Meghalaya for limestone, the mining started in 2006 after MoEF gave all clearances. Violations were “detected” only
after that. The supreme court ordered a stay in February this year. What can it do
beyond compounding the offence by way of compensatory afforestation and other
financial burden for local development? Sooner than later, it will have to lift its stay.
The real problem lies with the MoEF’s faulty policy of granting environment and forest clearances, which are not only given separately but also in various stages involving a time span of several years. In the meanwhile, the projects are allowed to proceed and by the time final clearance comes, the projects are already a ‘fait accompli’.
When the laws are followed mostly in their breach, Justice Kapadia’s new norm is an open invitation to indulge in more of the same. What will happen when challenging a project in the initial stage is denied? Won’t it encourage violations?
The solution might lie in replacing piecemeal clearances with time-bound, one-shot clearances. But there is neither political nor corporate motivation for such a change in policy. As long as the government keeps giving clearances in fits and starts it does seem like unsound logic to insist that justice is available only once.
Supreme nonsense
Governance Now, Sept 16-30
The Centre’s Ayodhya nervousness is way beyond comprehension
All this fuss over the Ayodhya verdict would suggest that there is a real threat to peace and communal amity in the country or that there is a real possibility of an out-of-court settlement to the six-decade-long dispute. By the time you read this, the verdict would probably be out and we would have known how badly that impacted us or helped in finding a solution. But for now, it seems the government and the court are over-reacting to a future event that may turn out to be nothing more than another milestone in the history of the dispute.
True, we are not privy to any “intelligence input” to assert one way or the other about the possible fallout of the verdict but there is not even a faint hint that something like this exists to warrant some extraordinary preventive measures that the government has taken, like banning bulk SMS and MMS services in the entire country and flag marches by the security forces in Ayodhya and elsewhere. The central government sent 52 companies of paramilitary forces to UP and stationed hundreds more at strategic locations in various states a week ahead of September 24, the day on which the Allahabad high court was to pronounce its verdict.
The supreme court stepped in where no intervention was required. The Allahabad high court was set to deliver its verdict after rejecting an appeal to defer it on the ground that one more chance be given for an out-of-court settlement. Justice RV Ravindran of the two-member apex court bench that heard a similar plea and stayed the Allahabad high court verdict in an interim order, was right in his observation that “let the verdict come; one way or the other.….the matter will come up before us (the supreme court)”. But a stay had to be granted as per the convention because the other judge in the bench, Justice HL Gokhale, differed and supported the plea for out-of-court settlement. Interestingly, this plea had not come from the main parties to the dispute. On the contrary, the main parties and the political forces behind the festering trouble were keen on the verdict. A stay has only deferred
the already delayed verdict.
As for the government, it seems it wants us to believe that indeed riots would break out in the city of Ayodhya and elsewhere if the verdict is given or that would be the normal way for us to react whether or not we have moved far away from the
volatile days of late ’80s and early ’90s.
The Centre’s Ayodhya nervousness is way beyond comprehension
All this fuss over the Ayodhya verdict would suggest that there is a real threat to peace and communal amity in the country or that there is a real possibility of an out-of-court settlement to the six-decade-long dispute. By the time you read this, the verdict would probably be out and we would have known how badly that impacted us or helped in finding a solution. But for now, it seems the government and the court are over-reacting to a future event that may turn out to be nothing more than another milestone in the history of the dispute.
True, we are not privy to any “intelligence input” to assert one way or the other about the possible fallout of the verdict but there is not even a faint hint that something like this exists to warrant some extraordinary preventive measures that the government has taken, like banning bulk SMS and MMS services in the entire country and flag marches by the security forces in Ayodhya and elsewhere. The central government sent 52 companies of paramilitary forces to UP and stationed hundreds more at strategic locations in various states a week ahead of September 24, the day on which the Allahabad high court was to pronounce its verdict.
The supreme court stepped in where no intervention was required. The Allahabad high court was set to deliver its verdict after rejecting an appeal to defer it on the ground that one more chance be given for an out-of-court settlement. Justice RV Ravindran of the two-member apex court bench that heard a similar plea and stayed the Allahabad high court verdict in an interim order, was right in his observation that “let the verdict come; one way or the other.….the matter will come up before us (the supreme court)”. But a stay had to be granted as per the convention because the other judge in the bench, Justice HL Gokhale, differed and supported the plea for out-of-court settlement. Interestingly, this plea had not come from the main parties to the dispute. On the contrary, the main parties and the political forces behind the festering trouble were keen on the verdict. A stay has only deferred
the already delayed verdict.
As for the government, it seems it wants us to believe that indeed riots would break out in the city of Ayodhya and elsewhere if the verdict is given or that would be the normal way for us to react whether or not we have moved far away from the
volatile days of late ’80s and early ’90s.
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