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File notings Checking abuse of power by
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On Record
Electricity through nuclear power Profile Diversities
— Delhi Letter
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File notings The Right to Information (RTI) Act, passed by Parliament last year, is new and finding its ground. Both educated and unlettered people around the country are struggling to make it a reality. Their efforts have begun to stem corruption and arbitrariness in decision-making. It is only natural that shock and dismay pervade the countryside as the Union Government seeks to restrictively amend the RTI Act in a way that will remove file notings away from public scrutiny. The proposed amendments will end up snatching away people’s right to know in what circumstances, through what process and under whose advice their legislators and civil servants reach decisions, big and small. Fearing that the inconvenienced bureaucracy has forced the political leadership into compromise, citizens groups have launched widespread protests against the move to defang the Act. On July 26, the Prime Minister’s Office issued a rebuttal, clarifying that “the Union Cabinet had approved an amendment that specifically provides that file notings of all plans, schemes and programmes of the government that relate to development and social issues shall be disclosed.” But why clarify what was never in doubt? File notings relating to development and social issues’ were not excluded from the Act under any of the exemptions to disclosure that broadly relate to national security, commercial competition, and personal privacy. Nor was it mentioned as an exception to the definition of ‘information’. The confusion regarding the status of file notings was a conscious creation of the Department of Personnel and Training (DOPT). Its website in its Frequently Asked Questions (FAQs) about the Act insisted that file notings were not in fact part of the definition of ‘information’. The Central Information Commission (CIC) has clarified in at least two decisions that file notings clearly fall within the purview of the definition of the terms ‘information’ and ‘record’; it has recently issued a show-cause notice to the DOPT for refusing to take its own interpretation off the website. Given the cumulative history of government spin around file notings, there is now strong suspicion at this unexplained desire to clarify the law. The value of a law lies in its precision. By seemingly ‘gifting’ special classes of information as being available to the public, the amendment will remove from public view all other classes of file notings where they do not specifically relate to development and social issues. At the very least all file notings will become disputed territory. Once again officials will have enormously increased discretionary powers to deny citizens access to almost every opinion recorded on file on any matter. Where access may be given in a limited number of cases, authors of file notings will enjoy anonymity. Once again, we will not have moved an inch from being a rent seeking and patronage based government to a rule-based government where every action of a public official has to be in conformity with established norms and procedures. International best practices point to transparency in the deliberations within public bodies. In the US, citizens are provided access to records of opinions expressed by officials in relation to a policy formulated or action that has been taken. In Albania, Germany, Israel, South Africa, Turkey, Uganda and several other countries with functional information access laws, file notings have not been given a blanket exemption. When the government aspires to have the most modern of military equipment to protect the people, the best of medical, transport and communications facilities and the most advanced IT systems, why should it lower the standards of transparency and accountability? Two more amendments are reported to be waiting in the wings. The first relates to disclosure of materials on the basis of which Cabinet decisions are taken. At present, these can be disclosed after a Cabinet decision has been made. But the proposed amendments will deny access to these materials. This assumes significance as every voting-taxpaying citizen has a right to know what materials form the basis of the Cabinet decisions at the Centre and in the states. The other proposed amendment relates to the recruitment and examination processes adopted by various public agencies. This has been prompted by fears that the RTI Act may be used to ask about question papers before the examinations have been held or identify members of interview boards with a view to influencing their opinion. Again, there is no need for any amendment as the Act already adequately protects any information that might hurt the competitive position of a third party and can be applied to information disclosure that may prejudicially affect the outcomes of examinations and recruitment procedures. In reality, the proposed amendment seems aimed at avoiding access to evaluated answer scripts of candidates appearing in such examinations and challenges to the appointment process. Many of our better academic institutions already give candidates the opportunity to see answer scripts and be satisfied that the evaluation has been fairly arrived at. This reduces the possibility of subjectivity in the evaluation process. What could be a better disinfectant for a country drowning in corruption, nepotism, influence peddling and abuse of process than the sunshine of disclosure under the Right to Information Act — especially where appointments and recruitment are concerned? Amending the RTI Act at the very early stages of its implementation to suit the convenience of elements who would like to hide their negligence and wrongdoings sets a precedent that emboldened governments at the Centre and in the states may soon follow. They will be encouraged to tear up more of the Act again and again whenever they find some provision inconvenient. True, the price of freedom is eternal vigilance but even being vigilant requires information. Old habits die hard. The government has not, at the time of writing this article, publicised the full text of the proposed amendments nor encouraged a public debate around the issue. In the face of so much unequal power, what choice do people have but resort to democratically voiced protest? We, therefore, urge the citizens to step in and put an end to this exercise of clipping away the wings of the RTI Act that is fast gaining recognition around the world as one of the best information access laws put in place ever. n
The writers are associated with the Commonwealth Human Rights Initiative, New Delhi |
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Checking abuse of power by
prosecution What is the true scope and nature of the power under Section 321 Cr PC? This authorises a public prosecutor to withdraw from prosecution of any case even after it has reached the final stage after a prolonged trial. It gives no indication or guidelines as to why the public prosecutor may apply for withdrawal from prosecution nor the considerations on which the court is to grant its consent. This question of law came up for consideration before the Supreme Court while interpreting the scope of the earlier provision contained in Section 494 Cr PC 1898. In Chandrika Mohapatra’s case, the Supreme Court observed: “It is not sufficient for the public prosecutor merely to say that it is not expedient to proceed with the prosecution. He has to make out a case that there are circumstances, which clearly show that the object of administration of justice would not be advanced or furthered by going on which the prosecution. The ultimate guiding consideration must always be the interest of administration justice and that is the touchstone on which the question must be determined whether the prosecution should be allowed to be withdrawn”. In another case, Supreme Court Judges Justice Baharul Islam and Justice R.B. Misra upheld the blanket power of withdrawing the prosecution by the state. Justice V.D. Tulzapurkar, however, put the issue in the right perspective by holding that the power under Section 321 Cr PC is meant to be exercised in cases where offences are committed during or following mass agitations, communal frenzy, industrial disputes, student unrest or similar situations involving emotive issues giving rise to an atmosphere surcharged with violence. In such a situation, the broader cause of public justice, public order and peace may outweigh the public interest of administering criminal justice in a particular litigation persistence in the prosecution in the name of vindicating the law, may prove counter productive. Justice Tulzapurkar rejected the contention of the counsel for the respondents (Jagannath Misra and others) and held that, “No results of any election, howsoever sweeping, can be construed as the peoples’ mandate to condone the common law crimes allegedly committed by those returned to power”. Justice Tulzapurkar’s view on the scope of the power given under Section 321 Cr PC to withdraw the prosecution at any time is the correct view to prevent the blatant abuse of this provision by politicians of the ruling parties. In the absence of any guideline in Section 321 Cr PC at present for the exercise of power of withdrawal of prosecution, the field is left open for political parties to misuse this provision and get their supporters accused of serious common law crimes released from the clutches of law. Parliament must step in and lay down broad policy guidelines in this regard. n The writer is Advocate, Punjab and Haryana High Court, Chandigarh |
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On Record
Rao Inderjit Singh has been the Union Minister of State for Defence
for about four months after a stint in the Ministry of External
Affairs. He seems quite well versed with his new charge — Defence
Production. He is heading this crucial department at a time when winds
of change are sweeping his department. Mr Singh says, nearly 74 per
cent of the total requirement of the Indian armed forces is being met
through indigenous sources during 2005-06. On the Light Combat
Aircraft (LCA), another important project, he says, it will get final
operational clearance by December 2010. Excerpts: Q: Now that
the foreign defence companies are being encouraged to have joint
venture participation with Indian companies, has any foreign company
come forward? A: Yes. The Hindustan Aeronautics Limited (HAL)
has presently three joint ventures — (i) BAe HAL Software Ltd with
BAe Systems UK; (ii) Indo-Russian Aviation Ltd with Russia; and (iii)
SNECMA HAL Aerospace Pvt Ltd, recently teamed up with SNECMA of France
for production of precision engine components. The Bharat Electronics
Limited (BEL) is also presently having two joint ventures — (i) BEL
– Multitone Ltd with Multitone UK; and (ii) GE-BE Pvt Ltd with GE of
USA. Another Joint Venture of BEL with DELFT Holland, which was
created for manufacture of Image Intensifier (II) Tubes and associated
power supply units for Night Vision Devices (NVDs), is now a
subsidiary of BEL since 2002. Q: What about the "Offset
Policy" adopted by the Government of India last year? Have any
defence deals been signedunder this policy? A: This policy was
incorporated in the Defence Procurement Procedure-2005 from July 1,
2005. The procedure for implementing offset provisions was notified on
May 10, 2006. The Offset Policy is applicable to the capital
acquisitions valued at Rs 300 crores or more for which RFPs are issued
after July 1, 2005. No deal has been signed under this new policy. Q:
What is the progress on the high-profile LCA and the Arjun Main Battle
Tank project? A: The LCA project is progressing to obtain Initial
Operational Clearance (IOC) by December 2008 and Final Operational
Clearance (FOC) by December 2010. The aircraft is equipped with the
state-of-the-art technologies such as digital fly-by-wire control
system, advanced avionics, multi mode radar and composite materials
for primary structures. The Main Battle Tank Arjun is under
production. Order for 124 numbers is under execution by OFB. There
have been some problems with the production model of the tank which
have been rectified and tested during the recently concluded field
trials in June 2006. Q: Considering the delay in the production
of LCA and Arjun tank projects, are Indian defence PSUs not able to
cope with the high-profile weapons’ requirements of the Indian armed
forces? A: The process of production after development is time
consuming and Defence Production units in the public sector are fully
capable of undertaking this task. There is no question of lack of
capability. Q: To what extent the Indian defence industry is
meeting the requirements of our armed forces? It was in 1995 that the
Defence Ministry had chalked out a plan to achieve at least 70 per
cent self-sufficiency in weapons production. How far have we met this
target? A: The concept of indigenisation has undergone a change
in as much as it would now need to involve capability enhancement and
development, increasing know-how, design and system integration rather
than having numerical targets. It has been the government’s constant
endeavour to promote indigenisation with a view to achieving
self-reliance in defence preparedness. Nearly 74 per cent of the total
requirement of the armed forces was met through indigenous sources
during the year 2005-06. Q: What has been the result of the
government’s effort to boost participation of private sector in
defence sector? A: In May 2001, the Indian defence industry
sector was opened up to 100 per cent for the country’s private
sector with FDI permissible up to 26 per cent both subject to
licensing. In all, 28 Letters of Intent/Industrial Licences have so
far been issued to the private sector companies for manufacture of a
wide range of defence items. The government has taken steps to
ensure adequate safety and security measures and stringent licensing
conditions are stipulated in this regard to be strictly followed by
the licensees. To promote the participation of private sector in
defence production, the government has recently notified the
guidelines for selection/identification of Tier I companies, which
after selection will be named as "Raksha Udyog Ratnas" (RURs).
Once selected as RUR, such companies will be treated at par with
defence PSUs in terms of the provisions of Defence Procurement
Procedure-2005. n
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Electricity through nuclear power The basic question regarding the Indo-US nuclear deal is whether we really need it. It is said, the deal will give a boost to our power sector. Several issues need to be examined with sobriety: whether nuclear power is an economically viable proposition; whether any risks are involved to the human population in the process of producing energy through nuclear power; whether political and strategic issues favour our country and help promote regional peace and harmony; whether the deal would lead to a guarantee against the proliferation of nuclear weapons in the region; and whether this is the only alternative available. The nuclear deal, if implemented, will add 20,000 MW power in the next 20 years. But experience suggests that it may add 5,000 to 7,000 MW. In 1998, instead of an installed capacity of 2,180 MW from the nuclear power plants, we got about 872 MW of power — less than 40 per cent of their designed capacity. India has invested over Rs 80,000 crore on these nuclear power plants. At present, 25 per cent of our energy budget goes to the Department of Atomic Energy which accounts for less than 3 per cent of total power output. The cost of building a power plant based on coal is around Rs 4.5 crore per MW. The combined cycle gas turbines that run on gas or naptha cost about Rs 3 crore per MW. But the cost involved in building a nuclear reactor for power generation is about Rs 6.3 crore per MW. Add to this the transportation cost, installation fee, maintenance and service charges which will take the total cost to Rs 10 crore per MW, which is double the cost from fossil fuel and triple the cost from gas. To build 20,000 MW of nuclear capacity in two decades, we need to spend Rs 10,000 crore every year for 20 years. There is no scientific basis to believe that the cost of nuclear energy in India is or can be cheaper than it is in the UK, France, Korea and China. Since we do not have enough uranium reserves, we have to import them from the Nuclear Suppliers Group (NSG). There is no guarantee about price stability and further escalation in the coming years. But these needs will make us dependent on the NSG. Safety is yet another aspect of the problem. Nuclear energy is fraught with danger — from mining, transportation, storage, utilisation to the management of the end product. The radiation-related diseases in the population around uranium mines and nuclear facilities are well known. There is no foolproof method to safeguard the nuclear facilities. India has a poor track record in this matter. According to reports, about 300 serious incidents causing radiation leaks and physical damage to workers have occurred, but these have so far remained official secrets. Safe dumping of end products is another problem. There are complaints that workers at the uranium mines and the extraction plant in Jaduguda in Jharkhand and the Nuclear Fuel Complex in Hyderabad — which churns out 50,000 tonnes of contaminated waste every day — are not adequately protected from radiation intake and external exposure. The threat posed by dumping wastes into a storage pond (known as the “lagoon”) is causing grave environmental concerns. The gas supplied from Iran could create a potential much larger than 20,000 MW of electricity India is looking for. Gas from Iran would have strengthened the ties between India, Iran, Pakistan and Afghanistan. This is a pressing need for regional peace. The US had hitherto imposed sanctions on India for having carried out nuclear tests in 1974 and 1998. Why this sudden change in its perceptions? India did not sign the NPT or CTBT because these are discriminatory in favour of Nuclear Weapon States. India has not signed these treaties for valid reasons. Apparently, the US wants to retain India as a country with special status and use us against China. India has given no undertaking to stop nuclear weapon programme. The only undertaking given is that the civilian and military nuclear facilities will be separated and will be subject to IAEA’s inspections. If the situation changes, what is the guarantee that these nuclear facilities may not be turned into production of nuclear weapons? It is wrong to say that there are no alternatives. True, thermal plants add to the Green House Effect, but power generation accounts for only 9 per cent of global Green House Gas emissions. Transportation’s share is much higher. That nuclear plants involve no fossil fuel is untrue. Each step in the “nuclear fuel cycle” — from uranium mining to reprocessing — emits GHGs. Nuclear power isn’t superior to gas or coal as regards GHG emissions. It is, certainly, inferior to renewable sources like wind and solar energy. India has ample potential for these renewable resources which are hazard-free, much cheaper, transparent, do not require any security and are much easy to be installed. For example, India’s total gross potential of wind power is over 45,000 MW, of which we use only 2,900 MW. We must fully explore the abundant solar and biomass energy potential. Small hydro power plants, for instance, have a potential of about 15,000 MW. Similarly, biomass power has a potential of 19,000 MW and urban and industrial waste 1700 MW. Besides, India receives solar energy equivalent to over 5,000 trillion kWh a year. This is far more than India’s total energy consumption. The countries which have installed nuclear power reactors are phasing them out. Not a single plant was being built, or planned, in the US. It has been 25 years since an order for a US reactor was placed. In the seventies and eighties, utilities not only stopped placing new orders but began cancelling the existing ones. The same is the case with the UK. According to the Financial Times, no new nuclear power stations are likely to be built in the UK for at least a couple of decades to come. The last reactor built in the UK, called Sizewell B, was completed in 1995 at a cost of some $3000 per KW capacity. In France, where nuclear energy is the main power source, it has taken longer for the true costs to come to light. Until 1992, the amount of direct and indirect government subsidies being fed into the French nuclear industry was not clearly known. According to an assessment conducted for the Dutch government, once the subsidies are included, the cost of nuclear power in France was 30 to 90 per cent more than official claims.n The writer is General Secretary, Indian Doctors for Peace and Development, Ludhiana |
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Profile Reports suggest that UPA Chairperson and Congress President Sonia Gandhi is concerned at Hazare’s fast and public criticism of the proposed amendment. There are indications that the government will not bring the amendments in the current session of Parliament. This will enable Hazare to end his 10-day-old fast. He is believed to have said that he would call off his strike if Parliament defers the proposed Bill to amend the RTI Act to the next session. While the monsoon session ends on August 25, Parliament will be reconvened for the winter session. In the interregnum, Anna Hazare plans to undertake a nationwide tour to campaign against the amendment. Recipient of Ramon Magsaysay Award, Hazare equates his current crusade with the “second freedom struggle”. Rare are the people like Hazare — dedicated, selfless and widely respected. From an army truck driver to Magsaysay Award winner has been a long journey for him. Hazare, a bachelor, has two missions in life — fighting corrupt politicians and officials; and ensuring economic and social transformation of villages. His native village — Ralegaon Siddhi in Maharashtra’s Ahmednagar — epitomizes Gandhian vision of a self-sufficient unit. He is prepared to go to any extent in his crusade against corruption. He had taken up cudgels against the high and the mighty. He was framed up in false cases, went to jail, but had his way in the end. Observing fast unto death is Hazare’s another weapon to exercise his moral pressure on the establishment to act against corrupt elements. He believes the corridors of power breed corruption and says “Delhi, India’s Capital, comes high on the list”. Hazare espouses change in the education system to enable the child grow in a healthy atmosphere. With schools and colleges accepting bribes in form of donations, what do you expect of a child?, he asks. He also feels that right to information should be made fundamental right of every citizen. Hazare, 66, has come up in life the hard way. He had to leave school after Class VII even though he wanted to study further as the family plunged into huge debt. He had to leave his native village, Ralegaon Siddhi, to join his uncle in Mumbai. There was a time when staying with his uncle, he set up a flower stall and did reasonable well. Come 1962 war with China, the patriotism in him sparkled and he joined the Army. A short course of rigorous training and he was detailed with the Supply Corps as a truck driver. He saw yet another war — the clash with Pakistan in 1965 — and had a close brush with death. While driving his truck in a convoy, carrying supplies in the Khemkaran Sector, Hazare and his colleagues were attacked by Sabre jets of Pakistani Air Force, leaving most of them dead or grievously injured. Hazare’s vehicle too was badly hit and the jawan sitting next to him had his leg blown off. He miraculously escaped; only a sharpnel grazed his head. Hazare considered this incident as a second birth for him but yet another event changed the course of his life. During his stint in the Army, as he himself admits, he was overcome by the urge to seek meaning in life and not finding an answer. He was driven to despondency and, at one stage, even thought of committing suicide. He went to Delhi Railway station and planned to be overrun by a speeding train, but providence willed otherwise. As he was desperately loitering on the platform, his attention was drawn to a book on the life of Swami Vivekananda. He read the book without break and the message contained therein had gone home — “a man’s life cannot be called a life if it is totally bereft of service to the humanity”. He opted for voluntary retirement and with a modest pension returned to his native village with the avowed objective of serving the community. His tryst with destiny began at Ralegaon Siddhi in 1975. What he saw appalled him — a drought-prone area having only 80 of its 2,200 arable acres under cultivation. The 2000-strong population sat and stared at a hopeless future. Children died early, men beat their wives, disease ran rampant and the only business that yielded some income was the liquor vends. It took 20 years of hard and dedicated work for Hazare to entirely change the face of his native village. No one starves now and look well nourished. There is no disease, the environment is clean with plenty of forests around, children go to school, the farm economy is booming and there are no social divisions. Women are empowered and no longer beaten by their drunken husbands. Anna Hazare wishes all villages in India to become like his native place. Will his dream come true in his lifetime?n
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Diversities
— Delhi Letter Though he spoke for about 20 minutes on August 16 evening at the release of the new edition of his book, Train To Pakistan, it was a hard-hitting talk. He hit out against the “fundoos” (fundamentalists and hardcore elements) in both India and Pakistan. As he elaborated, with words along the strain that religious fanatics were causing hurdles in the progress of women in Pakistan, there are also hurdles in the very progress and outlook. In India, the rightwing communal factions are targeting the minorities. He minced no words in lashing out against the communal elements and tainted leaders who are bent on causing disruptions and divides along religious lines. As Asma Jahangir, Pakistan’s well known human rights activist and lawyer who had flown down to release this book, said, it has been an honour for her to release the book written by a man who believes in speaking the truth at any cost. Yes, Khushwant Singh is one of the few in our midst who speaks out honestly, bluntly and fearlessly. Though this book was first published in 1956, the intensity is such even today that it holds out. Yes, it is an emotionally turbulent tale. As this new edition also carries those Partition photographs by Margaret Bourke-White, the combination is absolutely lethal, if I may so put across. If you see those photographs, you are bound to sit in agony and despair. Such is the force of these black and white photographs that it’s all very stark as are the photographer’s words who had witnessed that human disaster from close quarters. To quote Margaret Bourke-White, “Babies were born along the way. People died along the way. Many of them simply dropped out of line from sheer weariness. Sometimes I saw children pulling at the arms and hands of parents of grandparents unable to comprehend those arms would never be able to carry them again.” As I file this column, the picture isn’t still very clear whether the Right to Information Act will remain in its original form. Interestingly, there will be a discussion on this issue at the India International Centre on August 26. The speakers are Wajahat Habibullah, the Chief Information Commissioner, and the well known advocate Prashant Bhushan. Unfortunately, till date the RTI does not extend to the whole of the country. Citizens in Jammu and Kashmir are deprived of the benefit of the RTI. Why? Especially when it does not touch on sensitive matters and more along the routine lines. Of cottons
and khadi While the weather is so terribly humid and horrible, let me offload this too. Why does the Indian man of today insist on wearing synthetics? I am reminded of what the former director of the Crafts Museum Dr Jyotindra Jain had once recounted. He said, “when I had first met Mulk Raj Anand, I was wearing trousers and a synthetic shirt. He immediately gave me a lecture on the importance of cottons and khadis, especially in the context of our weather condition and sent me off to the nearest Gandhi Ashram outlet to buy a couple of kurta-pyjama sets. Thereafter I have stuck to wearing only cottons and khadis”.n
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Anna Hazare is one of India’s most respected social activist. Whenever he takes up a cause, an alert is sounded in New Delhi’s corridors of power. His methods to achieve an objective are truly Gandhian. He has undertaken a fast-unto-death to protest against the proposed amendments to the Right to Information Act, seeking exclusion of official file notings from public scrutiny.
At 92,
Khushwant Singh not just writes — two columns a week and
working on his forthcoming book — but can give a
talk non-stop for almost an hour. Well, he did so last
fortnight on August 1 evening as he had spoken
about New Delhi and his father.