The Tribune, Chandigarh, India

ARTICLE

Constituting the JPC
It may not help solve the problem
by P.D.T. Achary

THE Joint Parliamentary Committee (JPC) has come to occupy the national attention in an unprecedented way basically because of the stridency of the demand from the Opposition for the constitution of the JPC and the vehemence with which this demand was rejected by the Treasury Benches till the other day. The whole of the winter session of Parliament got washed out in this curious parliamentary battle. Finally, it was decided to constitute the JPC. As was expected, after it has been set up the issue of 2G spectrum is off Parliament’s radar.

When the agitation for setting up the JPC was at its peak, a lot of misinformation about the role, functions and powers of a parliamentary committee also began to spread. It was made to appear as if a JPC has unlimited powers to investigate any matter or anybody in any manner it chooses. It was also said that a JPC is different from other parliamentary committees inasmuch as it can call the ministers and even the Prime Minister for evidence.

There was considerable worry in the official circles that if the JPC is set up the Prime Minister will be summoned before it and he, thereupon, will put in his papers. It is not clear whether this bureaucratic worry, borne out of ignorance of parliamentary procedures and practices, was at the root of the stubborn resistance to the formation of the JPC. However, the Prime Minister’s clear statement that he is prepared to go before any parliamentary committee set at rest all doubts and worries about an imagined resignation.

A JPC is an ad hoc committee of Parliament which is formed for a specific purpose. It does not have any supernatural powers. The JPC’s powers are all derived from the terms of reference adopted by Parliament. As a matter of fact, in a fundamental sense, investigation is not a part of the legislative jurisdiction of the House. However, the British Parliament, which is the mother of all parliaments, acquired the investigative power being the “High Court of Parliament”. In ancient times, during the early stages of its evolution, Parliament had the judicial powers of the state vested in it and it used to be described as the “High Court of Parliament”. This power of investigation remained with parliaments though the judicial powers of the state were separated from this body.

But the basic question that arises in the context of investigation by a parliamentary committee is not whether it has all the powers required to carry out this task or whether its powers are limited by the terms of reference. The question which needs careful examination is how effective these committees are. Parliament, in fact, functions through its committees. The Lok Sabha alone has around 40 committees, including the departmentally-related Standing Committees. One notable fact about these committees is that on most of the issues these function on a non-political basis. This is said to be a very unique aspect of the functioning of parliamentary committees in India. However, it does not mean that on politically contentious issues there will always be a consensus. But by and large, the Parliamentary Committees have upheld a healthy tradition of maintaining political neutrality in dealing with issues.

Mr P.C. Chacko, Chairman of the newly appointed JPC, said the other day as quoted by newspapers that the infrastructure of the committee was weak because it lacked technical expertise required to deal with a subject like 2G Spectrum. He is in a way right in his assessment about the capabilities of the Secretariat in dealing with very complex subjects like spectrum. This certainly has a direct bearing on the effectiveness of a high profile investigative body of Parliament such as the JPC. But this is only one part of the problem.

This writer has long years of experience in supervising the work of Parliamentary Committees. Without any fear of contradiction it can be said that the examination of issues by the Parliamentary Committees is not as effective as it is expected to be or even as it used to be earlier. Reasons are many. The problem begins with the selection of members for the committees which is done by the respective parties. Rule 254 of the Rules of Procedure and Conduct of Business in the Lok Sabha says that the members of a committee are either appointed or elected by the House or nominated by the Speaker. In reality, the members of a committee are selected by their party leadership and forwarded to the Speaker. So, the appointment or election by the House or nomination by the Speaker is just a formality. When the members are selected the parties seldom look at the special interest or specialisation of the members. It is often a random selection. The result is that there are many square pegs in round holes. A selection made on the basis of the qualification, special interests and suitability for the specific job, etc, will go a long way in enriching the committees because the members will then take genuine interest in the deliberations of the committees and contribute to its work.

There is a general feeling that due to other preoccupations some members do not come to the committee meetings fully prepared. There are occasions when some members come into the meeting room even without reading the agenda. This happens mainly because their commitments in the constituencies leave them little time for hard work in Parliament or in committees. Then, the questioning of the government officials in the meetings is often unplanned. Sometimes questions unrelated to the issue under discussion are put which shift the focus away from the main topic and the evidence from the officials remains incomplete and many important points do not get highlighted.

In the earlier times, members used to assemble in the chamber of the Chairman well before the meeting and jointly plan the line of questioning of the officials. Persistent and well-planned questioning of the officials will bring out many vital information. Besides, this created a sense of awe in the minds of government officials who took the parliamentary committees very seriously. Even the most seasoned and “tough” Secretary would sweat when a parliamentary committee got into its stride.

Appearing before a parliamentary committee and that too committees like the PAC, the PU, EC, etc, was almost a nightmare for senior officers of the government. Senior members with their knowledge of the subject and capacity to articulate would be devastating in their comments.

In one such sitting of a committee — it was, I think, either PAC or the PU -Mr Ravindra Verma, a veteran parliamentarian, told a senior Secretary who was not coming to the point even after the Chairman repeatedly asked him to be relevant, “Mr. Secretary, you are creating the bush and beating around it”. Such witty and intelligent comments are very rare these days. The sense of awe that was there earlier among the bureaucrats has gone and now there is a growing tendency to take these committees “lightly”.

Coming to the point made by Mr P.C. Chacko relating to the weak infrastructure of the Secretariat, it is true that there is not sufficient expertise in the Secretariat to deal with complex and technical subjects like spectrum. In fact, when the Standing Committees of Parliament were created, there was an apprehension in the minds of members that the staff of the Secretariat was not equipped with sufficient knowledge of the technicalities of budget. This problem did exist in the initial stages, but over a period of time the staff acquired a certain amount of knowledge about budgetary and related matters.

When I was Secretary-General one of the important initiatives I took was to send the staff to prestigious training institutions for getting training in financial and budgetary matters. Most of the staff got training in finance, accounts, management and other professional areas. The basic idea was to equip the parliamentary staff with the necessary knowledge so that parliamentary scrutiny of the executive becomes more effective.

Constant efforts at capacity building of the parliamentary staff are essential for the effective functioning of Parliament. It should be remembered that it is the officials of the Secretariat who draft the report. So their knowledge of the subject is the key to a good report. Of course, a Parliamentary Committee can obtain the assistance of any expert. But it would always be better to have in-house expertise in various matters. What is required is a proper perspective on the requirements of the system, and quick and purposive action to meet those requirements.

The present JPC has very senior and experienced members who are expected to make the deliberations in the committee more informed and purposive. However, the JPC like other parliamentary committees can only make recommendations which are not mandatory. The government may or may not accept the findings and recommendations of this committee. Further, the Public Accounts Committee of Parliament too is investigating the 2G spectrum and is thus covering practically the same field. In fact, a convention is followed by the committees of Parliament whereby a subject which is considered by one committee is not taken up by the other committees. The reason is that there is a possibility, though remote, of two committees coming to different or even contradictory findings. Such an eventuality will destroy the credibility of parliamentary probe.

JPCs have, in the past, exposed systemic weaknesses and deficiencies and suggested measures to fix them. However, nothing much seems to have been done by way of follow-up. But, then, these weaknesses and deficiencies are symptoms of the decadence of a society which has lost its civilisational moorings. A JPC cannot address this problem. So, society will have to look beyond the JPC.

The writer is a former Secretary-General, Lok Sabha

MIDDLE

Memories of Japan
by Pushpinder Cheema

As TV channels and newspapers flashed pictures of a devastated and ravaged Japan, I was inundated with calls inquiring about my brother who had been posted there. Fortunately, he had moved to Switzerland just a couple of months ago, but as I watched the video-streams on the TV, I recalled the Japan I had seen (thanks to my brother’s posting) before the quake and the tsunami it unleashed. For some strange reason, I feel Japan’s loss as a personal loss and my heart grieves for it.

My visit during spring, around this time, to catch the cherry blossoms turned out to be an experience of a lifetime, which left a lasting impression on me. Even Toffler’s Future Shock does not prepare you for its technological advancement. On the other hand Japan is so sensual — everything breathes an air of quiet perfection and purpose, be it the artistic swirl on a cappuccino or just the packaging of mundane cookies.

Notwithstanding the art, culture and technology of this paradoxical country, what really impressed me were the people. The majority of Japanese do not speak English and because of their reticence in communicating with foreigners they are often misjudged as being unfriendly. I personally found them helpful, friendly, polite and very civil. The Japanese are proud to be Japanese. As a people they are first and foremost Japanese and then Shinto, Buddhist or Christian, or all three at once. Religion for them is a way of life, a journey, not a destination. Probably that is why it is safe for a lady to walk alone at midnight, and you will find your wallet where you left it, even hours afterwards. Of course, never make the mistake of giving a tip; and I don’t think I ever heard a mobile phone ring or people talking loudly in a public place. There is many a lesson to be learnt from them.

The people of Japan and their infrastructure are prepared for earthquakes but this was much more than that. As Japan reels under the after-effects of the tsunami and perhaps a threatening nuclear disaster, I pray for its people and their safety. Even in this hour of crisis, there is calm, while safety operations are being carried out without panic. This is the spirit of Japan, which I salute. On visiting Hiroshima today, who can believe that it had once been wrecked by a nuclear holocaust? While I mourn for the country, I know that the Japanese are resilient people — they will rise again from the ashes and rubble.

OPED-HUMAN RIGHTS

Protecting women from domestic violence
Notwithstanding many legal reforms, societal responses to domestic violence still largely exclude legal intervention. Women’s access to these laws is very rare as male batterers are not arrested, prosecuted, or sentenced as severely as other violent offenders which are confirmed by studies.
Vineet Kapoor

VIOLENCE in the private sphere of the family and the victimisation of women in the intimate relationships has acquired legitimacy and urgent attention in the legal discourse. Starting from its recognition as a crime in the last 40 years, the issue is now actively advocated by women’s rights group as an important concern of their human rights.

This recognition identifies violence in the private sphere not merely as a crime, but locates the context of this crime into the systemic process of structural subordination of women in a gendered social order where violence reconfirms and reproduces those gender hierarchies through fear, which produce this violence in the first instance.

That is why the criminal justice response is not similar to other crimes happening in the public sphere. There is a gap between the normative and legal framework on the one hand and the accessibility of justice and law enforcement on the other. Though progressive and social justice based laws have been enacted for the emancipation of the subordinated people and groups, the laws related to domestic violence remain victim to gaps.

The central context of the problem of domestic violence and women’s access to justice is that despite a proliferation of laws, domestic violence is still perceived as less condemnable than other forms of abuse. Locating violence against women as denial of human rights raises fundamental concerns for the women’s access to justice and how the legal order of any country addresses this issue.

The context of subordinated social existence of most women, when seen through a human rights angle, depends on how best a domestic legal order responds to these expectations (Dairam: 2004). Despite a proliferation of laws in this direction, there is a lack of proper law enforcement in case of domestic violence reflected by an international phenomenon cutting across different countries.

This phenomenon confirms to a gendered social order of subordination in which women exist and struggle against their victimisation. The high stakes the Indian Constitution attaches to the question of equality, by enshrining it as a fundamental right, whose mandate covers the issue of non-discrimination on grounds of sex, gives much credence to human rights readings of legal discourse and women’s rights in India.

The women’s emancipation and rights realisation on the ground, however, forms a different context. The brutalised and subordinated existence of a large proportion of women within their social environment gives formidable challenge to visions of equality and human rights which inform most of the ‘progressive’ laws designed to promote social justice and social change.

The evaluation of women's access to justice gains primacy when we find that the progress in law has not often matched with the progress in providing justice to women.

Some scholars working on women’s human rights maintain that certain sections of society may encourage a culture of violence due to the socially constructed view of women as flawed and wayward creatures who require chastisement for their own and social good. The encouragement may stem from a dominant focus on male self-identity, using violence against women to define and differentiate men from the inferior ‘other’.

It was until late 1960s that the problem was seriously scrutinised and the public concern started mounting against it internationally. The issue of domestic violence came under the sharp focus of second wave feminism from 1970s onwards when the feminists attacked the patriarchal legitimacy of violence and talked of women’s rights to security within the family and their claims to equality and liberty within the private sphere.

They argued that “personal is political” and that the inner world of family should be open to public scrutiny so that the inequalities and power relations within the family could be made visible.

Since the popular conception of violence at home did not merit much consideration as a punishable offence, the feminist movement, aimed at attaining substantive equality for women, regarded the domestic violence as one of the chief disabilities for the promotion of women's rights and their claims to equality. Women’s rights movement struggled hard to campaign for the inclusion of various manifestations of domestic violence as a crime within the criminal justice system to get law on the side of the women in their struggle for justice. The feminist movement exerted influence in extending the reach of criminal law within the insulated world of private sphere manifested by family and the home.

By 1980s and 1990s, many countries legislated for inclusion of domestic violence within the criminal law while most countries still did not legislate and were slow to respond. Most countries which did not legislate against domestic violence as a distinct crime continue to treat it under its criminal assault laws.

There was growing realisation since late 1980s that domestic violence needs special attention and is closely associated with women’s rights. Due to the growing influence and impact made by the women’s movement between 1970s and 1990s, the issue of domestic violence attained a primacy in at least the formal stance taken in public policy and criminal justice system of many countries.

The local women’s movement in many countries, inspired and energised by the international women’s human rights movement greatly contributed in exerting pressure on their respective governments to change their policy stance especially in the criminal justice system to comply with the ongoing international standard setting.

The international developments in this direction gave strength to the demands from the women’s rights groups in India. The recognition of domestic violence as a crime in India was brought about in the early 1980s after a sustained campaign by feminist groups and women activists all over the country. There was a huge demand for tackling the criminalisation of dowry death and domestic violence which lead to the enactment of Section 498A in the IPC in 1983, Section 304B in 1986 and corresponding provisions in the Indian Evidence Act, 1872.

The criminalisation of domestic violence in the form of Sections 498A and 304B (dowry death) were considered significant developments in law in correcting historical, legal, and moral disparities in the legal protections afforded to abused women. It sought for the first time to bring the issue of domestic or family violence out of the protected private realm of the family and into the public domain in India.

Despite these legal reforms, societal responses to domestic violence still largely exclude legal intervention. Women’s access to these laws is very rare as male batterers are not arrested, prosecuted, or sentenced as severely as other violent offenders which are confirmed by studies done by several organisations and NGOs.

There are problems in access to justice and implementation of these laws. The police often exercises discretion in avoiding arrest while responding to domestic violence incidents and emphasises on mediation and conciliation.

Public prosecutors fail to actively pursue cases of domestic violence under Section 498A, as often women turn hostile during the prosecution and agree to drop the charges. Sentences tend to be less serious for those convicted of domestic violence.

The result of these processes has been a higher dismissal rate for domestic violence cases at the prosecution stage, compared to other violence cases, and less serious sentences. The passing of the specialised legislation in October 2006, called The Protection of Women from Domestic Violence Act, is a significant development in this direction as it provides the much-needed civil law remedies to help victims of domestic violence.

These criminal laws and the civil law provisions now make an impressive set of laws designed to deal with the domestic violence and to provide justice to the victims of domestic violence. Despite this, the question that arises is how far these laws are being used by the victimised women.

The delivery of these laws within a gendered social order raises a number of concerns regarding the human rights of victimised women who exist in a position of structural subordination, which leads to formidable barriers in access to justice.

As a background to discuss women’s access to justice in case of domestic violence, it is useful to first discuss the domestic violence as an issue of women's human rights. Violence against women is also an issue of the women’s human rights as the systematic perpetration of violence on women is a result of the subordinated position of women in society which in itself raises questions on the right to equality based on grounds of sex.

Since violence against women mostly occurs in the private sphere of the family, the human rights of women as an individual need to be considered while dealing with policy issues attached to domestic violence. The human rights tenets give credence to the responsibility of the state. Therefore, the role of the state in providing for need-based policy provisions for access to justice for women need to be urgently addressed.

As for policy, the government will have to consider that the women’s lack of access to justice in cases of domestic violence remains victim to the structural issues of women’s subordination which gets reflected in the delivery of justice and its distance from the victim, throwing challenges at law, justice and governance in the country. How this law reaches women and how and in what context it is delivered would determine whether women have access to justice as equal citizens.

The writer, a senior IPS officer of Madhya Pradesh cadre, specialises on human rights. He is the Assistant Inspector-General of Police (Training), Bhopal