Let us think and Act with an open mind to

Develop a Vibrant Democracy – Article 10

SRB

Introduction: I have identified thirty obstacles which cause a distorted and ineffective democracy and possible solutions for these. Because very few people have time / inclination to read long articles, these are presented in separate brief articles for pointed attention and easier assimilation. I hope this will lead to spreading of awareness and facilitating point by point debate on each of these for saving our sinking democracy.

(Please keep these articles within easy reach for referring back till the series is completed.)

Human rights

A democracy has to ensure that people are not subjected to violations of human rights. For this purpose, National Human Rights Commission (NHRC) was set up under the Human Rights Commission Act 1993. The tabular statement below gives a vivid picture of the performance of NHRC: 

National Human Rights Commission

Statement showing total No. of cases registered and their status during the period from 2006 to 2011

Year	Pending	Dismissed in limini	Disposed With directions	SHRC	Closed	Total
2006	363	46,070	25,625	330	8,583	80,971
2007	552	59,254	28,497	871	9,381	98,555
2008	517	65,492	18,955	5,162	4,428	94,554
2009	780	62,364	12,060	5,374	3,526	84,104
2010	1,873	57,622	14,738	7,432	2,647	84,312
2011	5,802	48,184	12,820	24,139	2,753	93,698
Total	9,887	338,986	112,695	43,308	31,318	536,194

During 2006 to 2011, about 5.4 lakh persons had alleged that they suffered from human rights violations, at an average of about 90,000 per year!! Many lakhs more are likely to have complained to State Human Rights Commissions!! Some more might have suffered but did not complain. The atrocious fact that such amazing number of people had complaints of violation of human rights is a matter for serious concern under a democracy. Any attempt to put these under the carpet as frivolous complaints will only expose callousness and will not have any takers because lakhs of complainants cannot be frivolous.

In a democracy, how these complaints have been dealt with is also important. Among these, about 1.1 lakhs (about one fifth) only were “disposed with directions”. NHRC had no qualms in refusing to examine about 3.4 lakhs (two-thirds) of the violation complaints and “dismissing these in limini” – a deeply disgusting picture of inaction to remove human rights violations. Thus even the last channel of hope was cruelly cut off for lakhs of possible sufferers from human rights violations. This atrocious situation arose on account of NHRC (procedure) Regulations 1997 which did not give powers to NHRC to review   judgments by courts and commissions.                                            

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     The NHRC statement did not give the important information about how many of the 3.4 lakh cases dismissed in limini were complaints against court judgments. It is reasonable to presume that vast majority of this huge number of violation complaints arose from perceived denial of justice by courts and did not arise from recommendations of commissions. NHRC did not give serious thought as to why lakhs of people were complaining to it against court judgments. It also ignored the obvious possible reason that after 1997 (when the Regulation was made), transparency of courts has been increasingly questioned by people.

Because of such laissez-faire attitudes, it did not realize the simple fact that suitable modification of the Regulation was urgently needed to allow review of all complaints.  Sad to say, NHRC, the supreme authority on human rights did not take even this simple step to rectify the atrocious situation but callously continued to take shelter under the obviously obsolete 1997 Regulation to dismiss lakhs of cases without examining them.

All these show a grossly dismal picture of human rights which is a shame for the Indian democracy. NHRC was so smug and complacent that it never cared to study its own statistics and take suitable remedial actions which were in its power!!

Sad to say, neither Parliament (peoples’ representatives) nor government cared to take any action to rectify the atrocious situation of large scale complaints against human rights violations. Probably, they did not even care to keep a watch on the human rights situation and were, therefore, not aware of what was happening!! Can it be possible that many of these complaints were ignored because these were against political leaders who are known to throw their weight around?

NHRC is an autonomous body with operational and financial authority and had the power to regulate its own procedure for disposal of complaints. Section 12 of Chapter III of the Human Rights Commission Act 1993 lists the functions the Commission shall perform. Among these, 12 (d) and 12 (j) are pertinent in the present context:

12 (d) - review the safeguards provided by or under the Constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective implementation.

12 (j) - such other functions as it may consider necessary for the protection of human rights.

These two sections specifically empower NHRC and instruct it to carry out all functions necessary to protect human rights, including recommending measures for effective implementation of safeguards to protect human rights.  Yet, it did not act to overcome the shameful and dismal picture of human rights in India, shown by its own statistics. NHRC, using its statutory powers to regulate its own procedure for disposal of complaints, ought to have amended the obsolete NHRC (procedure) Regulations 1997 which forced it to dismiss lakhs of complaints without examination. Failure to do so even when faced with the atrocious situation of human rights shows lack of accountability and tantamounts to contempt of the Constitution. The top level officers of NHRC who lacked accountability and were responsible for this contempt deserve to be penalized immediately to restore faith in NHRC to a large extent.

On the other hand, central and state governments have not cared to ensure that Human Rights Commissions are equipped to carry out their functions properly. Even though vacancies are bound to occur quite often in HRCs, steps are not taken in advance to fill up vacancies in time and to empower the next junior level officer to act whenever necessary. For instance, Karnataka State Human Rights Commission could not register a suo motu case because it did not have a Chairperson for some months, as stated by the Registrar of the SHRC (DNA dated 19 – 11- 2012).

The above aspects depict the sixteenth and very serious obstacle which resulted in a distorted and ineffective democracy.

To overcome this obstacle, a thorough review of the working of NHRC should be carried out by an independent body with expertise in human rights and its recommendations should be immediately implemented in toto. Any rejection of the recommendations by government should be ratified by both houses of Parliament. Meanwhile, the top level officers of NHRC,who  lacked accountability and showed contempt of  the Constitution by not using their powers to rectify the dismal picture of human rights, should  be removed immediately so that they do not interfere in the  review. This step is also essential to restore faith in NHRC.

Thereafter, a new set of top officers of NHRC should be appointed to exercise its statutory power to regulate its own procedure for disposal of complaints by overriding any procedural regulations. In particular, the obsolete NHRC (procedure) Regulations 1997 which had repeatedly forced NHRC to dismiss lakhs of complaints in limini and made it toothless should be amended immediately.

Once the modified procedure becomes operative, it is certain that NHRC will have to review lakhs of complaints about miscarriages of justice. Therefore, no judges should be appointed in top positions of NHRC. Eminent lawyers and human rights activists should form an essential part of the top level officers of NHRC.

Top priority should be given to strengthening NHRC to make it capable of handling lakhs of cases.

Comments (especially those which point out errors or deficiencies, if any, in this article and thereby help to improve it) and other suggestions to overcome this obstacle are welcome. Please send these to StartRemovingBlocks@gmail.com. I shall make use of all befitting suggestions to prepare the last two articles of this series – Articled 23 will spell out the basic principles which will guide formulation of the revised system of democracy and Article 24 will outline the revised system of democracy for public debate to arrive at a consensus.

You can help to save our sinking democracy by making as many people as possible aware of these obstacles and possible solutions, through personal group discussions, newspaper articles, e-mail and social media like face book and twitter so that we can have healthy debates and arrive at some innovative ideas to save our sinking democracy.

Let us think and Act with an open mind to

Develop a Vibrant Democracy – Article 9

SRB

Introduction: I have identified thirty obstacles which cause a distorted and ineffective democracy and possible solutions for these. Because very few people have time / inclination to read long articles, these are presented in separate brief articles for pointed attention and easier assimilation. I hope this will lead to spreading of awareness and facilitating point by point debate on each of these for saving our sinking democracy.

(Please keep these articles within easy reach for referring back till the series is completed.)

Corruption

People want a corruption free government. It was envisaged that the institutions set up to ensure checks and balances will help to control corruption. But, all these have failed miserably. Besides corruption being rampant in every sphere of activity, mega scams have been exposed with alarming frequency. Punishment to persons involved in these is dragging on indefinitely and causing concern and increasing cynicism among people.

The Central Vigilance Commission (CVC) was set up, even as an advisory body, only in 1964 (i.e., 14 years after the Constitution came into force), through an ordinance. In 1998 (i.e., 34 years later) government introduced the CVC Bill in Lok Sabha to replace the ordinance. But it was not passed. The Bill was re-introduced in 1999 and remained with Parliament till September 2003 (i.e., for another four years. Then it became an Act after being duly passed in both the Houses of Parliament. This long delay of 53 years in conferring statutory status to CVC speaks volumes about the lack of interest of government and Parliament to control corruption. This is not surprising because the other checks and balances also were not taken up seriously by government.

What is worse, CVC can investigate corruption against government officials only after government permits it, though CVC is a statutory body!!. This is similar to asking a thief’s permission to catch him and giving him enough time to cover up even if he permits after some time. The reason given for this presumes that a statutory body will be frivolous. Delays and denial of permissions were quite common and indicates reluctance to allow proper checks. Thereby, this check has been deliberately watered down.

Annual reports of  CVC gave not only details of the work done by it but also brought out the system failures which lead to corruption in various Departments/Organizations  and suggested improvements in the system and various preventive measures needed. Cases in which CVC’s advices were ignored were also listed. A good government would have welcomed the suggestions for improvement!! But this was not done. Moreover, hardly any acion was taken on any of the important aspects. Government’s callousness and lack of commitment are obvious.

CVC has a very small set up with grossly inadequate sanctioned staff and other resources needed to investigate corruption in more than 1500 central government ministries and departments.  It cannot direct CBI to initiate enquiries against any officer of the level of Joint Secretary and above without permission from the concerned department. It does not have powers to register criminal cases and deals only with vigilance or disciplinary cases. Even for the limited investigations taken up, it can only make recommendations and cannot impose penalties. As a result, CVC  has neither resources nor powers to inquire and take action on complaints of corruption that may act as an effective deterrence against corruption. All these also indicate that government is not confident that there is nothing to hide and prefers to have a toothless CVC.

Sad to say, government does not even think about the need to rectify the situation let alone take any action.

The Central Bureau of Investigation (CBI) is the foremost investigating police agency in India.  Its working is overseen by  Department of Personnel and Training (DoPT) of Ministry of Personnel, Public Grievances and Pensions of Central Government, headed by a  minister who reports directly to Prime Minister. The minister is responsible for making sure that CBI is functioning properly. CBI’s jurisdiction covers corruption by Central Government servants and employees of public sector undertakings and nationalized banks. From 1965 onwards, CBI has also been entrusted with investigation of economic offences.

Government appoints a director from a panel of candidates based on the recommendations of a committee chaired by the head of a toothless CVC as explained above. Appointment and discipline of lower ranking CBI officers also are not handled by CBI but Ministry of Personnel. Control of government on appointments at all levels is an obvious travesty. 

To begin an investigation, CBI must obtain a series of approvals. For corruption investigations, which are monitored by CVC, the CBI needs approval of Ministry of Personnel also. It must also have permission from chief minister of the state where it wants to conduct an investigation. In order to investigate allegations of corruption against senior civil servants also, CBI must seek consent of Ministry of Personnel.

CBI is dependent on Home Ministry for staffing, since many of its investigators come from Indian Police Service. Likewise, it depends on law ministry for lawyers. Critics of CBI ask: “How can a body dependent on so many departments of government (as illustrated above) and answerable to them investigate the actions of government?”

In 1991-92, in its 13th Report to Lok Sabha, the Estimates Committee recommended  “enactment of a new law laying down  organizational structure of CBI, functions to be discharged by it, types of offences which it can investigate and providing for conferment of powers of Police (laid down in Criminal Procedure Code 1973), on  members of CBI.” It also recommended a constitutional amendment to provide for extension of CBI activities to any state without consent of its government.

Supreme Court, in a 1996 judgment said powers of Minister for Personnel, Public Grievances and Pensions does not “permit the minister to interfere with the course of investigation.” SC’s further interventions in 1997 to ensure CBI a measure of independence in probing corruption cases has hardly yielded results, forcing another round of court hearings on the same subject in the coal block allocation case.

After the apex court’s 2006 judgment on police reforms in the Prakash Singh case were disregarded by most States, contempt cases were initiated but are yet to be settled. The regularity with which Supreme Court and High Court orders and judgments have been flouted by the State is fraught with grave implications for the country. Justice delayed or denied becomes a perfect recipe for social and political unrest. (DNA dated 02-11-13, page 8).  

Despite repeated court orders, CBI continues to be hampered and cannot completely justify its role in an independent manner. On the other hand, it has been criticized for mishandling of several scams and dragging its feet while investigating prominent politicians, leading to their acquittal or non-prosecution. CBI has not been able to make a dent on the rampant corruption all over the country.

Joginder Singh and B. R. Lall (former director and joint director, respectively of CBI) have exposed government for engaging in nepotism, wrongful prosecution and corruption. In Lall's book, Who Owns CBI, he details how investigations are manipulated and derailed. Corruption within the organization has also been revealed in information obtained under RTI Act. RTI activist Krishnanand Tripathi has alleged harassment from CBI to save itself from exposure via RTI. In stead of setting matters right, in 2011, government exempted CBI from the provisions of RTI Act  on the basis of national security!! This has been criticized by the Central Information Commission and RTI activists, who said the blanket exemption violated the letter and intent of  RTI Act.

Recently CBI has become the subject of ridicule over allegations that it allowed a minister and government officials to modify its report on   allocation of coal mining licenses. Supreme Court then criticized CBI for making changes in its report at the request of a minister and two bureaucrats and remarked that CBI is “like a caged parrot”. The court gave government until July 3, 2013 to lay out steps to make the investigating agency independent. The court’s order marks the latest in a long line of failed efforts to establish a robust anticorruption investigating agency.

Following this criticism by SC, to ensure "functional autonomy", CBI has asked for sufficient financial and administrative powers and a minimum three-year tenure for its director who should be vested with ex-officio powers of Secretary to Government of India, reporting directly to the minister, without having to go through the DoPT," Decisions on all these are still pending.   

Another atrocious event is the missing of files from Ministry of Coal Mines.

Whistleblowers (persons who expose misconduct, alleged dishonesty or illegal activity occurring in an organization) play an important part in control of corruption. Unfortunately, they had to face many reprisals and devastating situations. There have been multiple instances of threatening, harassment and even murder of whistleblowers. The harsh reality is that vested interests usually triumph because the laws are inadequate, the media are ineffective and citizens are silent. Peoples’ representatives do not care to set things right because of their well known preferences!! Consequently, culprits in influential positions manage to suppress embarrassing facts, discredit whistleblowers and subject them to demoralizing situations. Long delays in disposing off these cases also help them to get away without punishment. Under these circumstances, odds are heavily loaded against whistleblowers and only a few can succeed or lead a stress free life. Many are subject to debilitating anxiety or depression forever.

The judiciary has repeatedly directed government to formulate suitable guidelines/regulations to protect whistleblowers. In 2001,  Law Commission of India in its 179th report recommended a specific legislation to encourage disclosure of information regarding corruption or maladministration by public servants and to provide protection to informers. Only after ten years, the Whistleblowers' Protection Bill, 2011 was passed by the Lok Sabha. But, sad to say, the Bill is pending in Rajya Sabha!! This is one of the many instances of “indirectly elected representatives” blocking an important bill passed by “directly elected representatives” of people – a blow to democracy!!

The proposed law has no provision to encourage whistle blowing (e.g., financial incentives). Nor does it provide a penalty for those attacking a whistle blower. It has faced considerable criticism because its jurisdiction is restricted to those who are working for central government or its agencies and does not cover state government employees. Corporate and private sectors also are not within its jurisdiction.

Moreover, ministries proposing draft legislation usually involve a process of public consultation but such an opportunity has been denied to the public for this bill, Sad to say, even after a gap of more than 12 years  after the Law Commission  recommendation,  a full-fledged law to protect whistleblowers, drafted with public consultation, is still a long way off. In the absence of such a law, people have a low level of confidence in fighting corruption because they fear retaliation and intimidation against those who file complaints.

These aspects form the fifteenth and very serious obstacle which results in a distorted and ineffective democracy.

Comments (especially those which point out errors or deficiencies, if any, in this article and thereby help to improve it) and suggestions to overcome this very serious obstacle are welcome. Please send these to StartRemovingBlocks@gmail.com. I shall make use of all befitting suggestions to prepare the last two articles of this series – Articled 23 will spell out the basic principles which will guide formulation of the revised system of democracy and Article 24 will outline the revised system of democracy for public debate to arrive at a consensus.

You can help to save our sinking democracy by making as many people as possible aware of these obstacles and possible solutions, through personal group discussions, newspaper articles, e-mail and social media like face book and twitter so that we can have healthy debates and arrive at some innovative ideas to save our sinking democracy.

Let us think and Act with an open mind to

Develop a Vibrant Democracy – Article 8

SRB

Introduction: I have identified thirty obstacles which cause a distorted and ineffective democracy and possible solutions for these. Because very few people have time / inclination to read long articles, these are presented in separate brief articles for pointed attention and easier assimilation. I hope this will lead to spreading of awareness and facilitating point by point debate on each of these for saving our sinking democracy.

(Please keep these articles within easy reach for referring back till the series is completed.)

Law and order

One of the most important expectations from a democracy is that people want to have a peaceful life and be allowed to carry on with their daily activities without hindrance. Sad to say, these expectations remain a woeful dream in many ways.

Rape and violence against women have rocked the whole country. An analysis by Commonwealth Human Rights Initiative showed that 2,64,130 rapes were reported between 2001 and 2013 in 28 states – an average of 56  rapes per day (Times of India dated 28-07-14, page 7). Four rapes and nine molestations were reported in Delhi every day!! (DNA dated 04-01-14). Robberies also are daily features. Murders are not far behind, that too of senior citizens. Police are not only ineffective but also callous. When rich and influential persons are involved in crime police tend to take their side. Quite often, when police somehow mange or are forced to file cases against rich and influential persons, the latter threaten witnesses, use delaying tactics and get away without punishment for lack of evidence. To overcome these, Supreme Court (SC) has said that immediate steps need to be taken to ensure protection  of witnesses who often turn hostile  due to threats or other corrupt practices (DNA dated 15 - 11-13 page 9). But, the situation seems to be the same.

Police have earned a reputation of being corrupt in dealing with problems faced by people. Most people are afraid to go to a police station with a genuine complaint. Filing of FIR is subject to the whims of the police or the pressures they face. Burking of crime is so common that every year about 60 lakh cases are not registered (The Hindu dated 13-11-13, page 13). A general impression is that persons with money can get away with any crime. Even worse, SC was constrained to remark that policemen are like “criminals in uniform” (Deccan Chronicle dated 14-10-12). Even this castigation from the highest level of law could not produce results. Continuation of this state of affairs in 2013 is confirmed by a Chief Minister of a state stating: “It’s no surprise that people think twice before visiting a police station. They are scared to talk to the police.”  “How can anyone expect justice from police when they are so corrupt and indulge in illegal activities?” (Deccan Chronicle dated 14-06-13, page 3)

In a TV discussion, a former police commissioner bluntly stated that police have now become an “armed militia of the politicians in power.” (Deccan Chronicle dated 06-02-13, page 8). “Today, our political leaders not only want the police to do their dirty work but also get them to collect money for them.” “At the centre, the Intelligence Bureau furthers the interests of the ruling party and the Central Bureau of Investigation has been reduced to being a “caged parrot”, (as remarked by SC). “We not only need to free the police from the malignant  and suffocating political control but also streamline its organization to ensure a people friendly and highly efficient and effective police force.” (Deccan Chronicle dated 22-05-13, page 9)

In connection with a PIL which alleged that 1,17,480 children had gone missing between January 2008 and January 2010 and of them 41,546 were yet to be traced, SC remarked that “No body seems to be concerned about missing children. This is the irony.” (Deccan Chronicle dated 06-02-13, page 1).

All these  show that most people are very unhappy with police who are like “criminals in uniform” and “armed militia of the politicians”.

Elected representatives of people often close their eyes to all these dreadful realities and allow matters to drift. “Like any democracy, we have all the laws. But we don’t have the courage, the competence or the candour to implement them.” (The Week dated 09-06-13). What is worse and cruel, some of these representatives seek personal benefits from this anarchy or even create such situations for their selfish gains. There are many instances of lawmakers taking law into their hands and demonstrating their contempt for law. They do not realize that not only are they causing harm but they are also setting bad examples as leaders. This has led to their supporters also taking law into their hands without fear of punishment. Children of politicians also indulge in unlawful activities and escape punishment.

Apathy and callous  attitude of the Government, even when multiple failures in law and order are highlighted by media every day, are conspicuous and have resulted in loss of trust on the government.

All these have made people unhappy, frustrated and cynical.

One reason for this state of affairs is acute shortage of police officials (policemen and officers). There are only 106 policemen for one lakh people, which is even less than half of the recommended ratio of 222 (Times of India dated 23-02-14). Government has been callous and has not taken adequate steps to overcome such gross shortages of police officials, even though this would have benefited people and reduced unemployment also. This is due to low priority and not lack of resources. Inability to ensure that more recruitment will not create more criminals in uniform can be a possible reason for hesitation!!

What makes the shortage even more alarming is that available police officials are frequently misused or deputed for non-governmental activities e.g., 700 constables, 120 SHOs and 35 DySPs were put on duty for the marriage of a top politician’s daughter, which pertinently was a vulgar display of wealth with Rs. one crore being spent on the main dais alone (CNN IBN news on 3-11-12). Moreover, police yielding to external pressures is all too common. Such misuses are callously rampant. As a result, “In India, there are three policemen for every VIP and just one for every 8,000 people” (DNA dated 08-02-13, page 1). Even after SC passed strictures about this, hardly any serious actions are visible.

Democracy also requires equality in application of laws. Violations of this requirement are far too common. Poor people hardly benefit from the law and order machinery. In fact, they are even afraid of the protectors of law. No committed efforts have been made to rectify matters.

Faced with the decay in the functioning of police, a National Police Commission was set up to recommend reforms. This Commission made many important recommendations. But, these were put in cold storage despite the directions issued by SC.

These aspects depict the thirteenth obstacle which resulted in a distorted and ineffective democracy.

To overcome this obstacle, a thorough review has to be conducted by an impartial body to ascertain the reasons for this obstacle which affects people all over the country. Government should take immediate action on the basis of this review.  Moreover, immediate action has to be taken to recruit and train sufficient number of police personnel and ensure that they function effectively without hindrance from others. This matter is so important for the welfare of the people that adequate budget has to be provided by preventing wastages and by cutting down the budget for projects which are less important for the welfare of people, if necessary. For this a change in mindset and commitment are essential.

Often people are punished on the ground that ignorance of law is no excuse. This shows ignorance of realities. The vast majority of people are not aware of all the laws. Even experienced lawyers and judges have to repeatedly refer to the law books, showing that even they are not fully aware of the laws. Further they often differ in the interpretation of law showing that the laws are not clear even to them. Then, why do we expect that the common man will know all the laws and their sections and sub sections? Therefore, how can we justify punishment for ignorance of law? Particularly so when even law makers and influential persons get away after breaking laws and only common people are punished?

The above aspect depicts the fourteenth obstacle which resulted in a distorted and ineffective democracy.

To overcome this obstacle, the crimes should be classified into the following three categories:

(1) Crimes deserving punishment because these are commonly recognized as against law by the society e.g., murder, rape, theft, cheating etc. For this ignorance of law is no excuse.

(2) Crimes which are not likely to be known as against law by all people in the society and was committed because of this ignorance of law. For this only a warning is sufficient for the first offence. Repetition should be punished

(3) Crimes deserving punishment because there is reason to believe that it was committed despite the awareness that it was prohibited by law. This includes a second offence under (2) above, a politician taking the law into his hands, violence attempted by groups to break the law to show protests etc.

If instances of (2) above because of ignorance of law are too many, these should be investigated to find out which laws are not clearly known to the people more often. An education campaign should be carried out to reduce ignorance of these laws. If necessary, these laws should be modified to make these unambiguous and clear.  

An expert body should make a thorough study of all existing laws to weed out those which are obsolete and to modify the remaining laws to reduce differing interpretations by judges and lawyers and to make these understandable to people.

Comments (especially those which point out errors or deficiencies, if any, in this article and thereby help to improve it) and suggestions to overcome this very serious obstacle are welcome. Please send these to StartRemovingBlocks@gmail.com. I shall make use of all befitting suggestions to prepare the last two articles of this series – Articled 23 will spell out the basic principles which will guide formulation of the revised system of democracy and Article 24 will outline the revised system of democracy for public debate to arrive at a consensus.

You can help to save our sinking democracy by making as many people as possible aware of these obstacles and possible solutions, through personal group discussions, newspaper articles, e-mail and social media like face book and twitter so that we can have healthy debates and arrive at some innovative ideas to save our sinking democracy.