The Tribune, Chandigarh, India

Truth as defence
SC rejects contempt plea against editor

The Supreme Court judgment rejecting the Indirect Tax Practitioners Association’s plea to punish Excise Law Times Editor R.K. Jain for contempt of court is a big victory for the freedom of press. Mr Jain, in an editorial in his magazine on June 1, 2009, had pointed out irregularities in the transfer and postings of the members of the Customs, Excise and Gold (Control) Appellate Tribunal. The Bench consisting of Justice G.S. Singhvi and Justice A.K. Ganguly not only rejected the petitioners’ contention that the editorial was an attempt to scandalise or lower the authority of judicial institutions but also reiterated the cardinal principle that truth based on facts can be used as valid defence in the contempt of court proceedings. Section 13 (B) of the Contempt of Courts (Amendment) Act enables the court to permit justification by truth as valid defence in any contempt proceeding if it is satisfied that such defence is in public interest and the request for invoking the defence is bona fide.

Significantly, while dismissing the petition, the apex court upheld the editor’s freedom of speech and expression as guaranteed under Article 19 (1) (a) of the Constitution. This right is the citizen’s most cherished and sacred right in a democracy and any abridgement of this “prized privilege” will be contrary to the ideals and values of the Constitution. Normally, the court does not use the power to punish for contempt for curbing this right. However, it will be forced to use this power if the criticism of judicial institutions transgresses all limits of decency and fairness or there is total lack of objectivity or there is a deliberate attempt to denigrate the judiciary, the Bench ruled.

Going a step further, the Supreme Court described the editor of Excise Law Times as a whistleblower for the system and ruled that he had tried to highlight the malfunctioning of an important institution established for dealing with cases involving the revenue of the state and there is no reason to “silence” such a person by invoking Articles 129 or 215 of the Constitution or the provisions of the Contempt of Courts Act. The judgment can thus be described as a triumph of the freedom of press and vindication of the editors’ right to pinpoint lapses in government organisations in public interest and to improve the system.

Troubled General
Sri Lanka losing after defeating the LTTE

Sri Lanka’s former Army Chief Gen Sarath Fonseka losing his rank, medals and pension after his conviction by a military court martial is not surprising. President Mahinda Rajapaksa, who has ratified the verdict, could not have taken a contrary decision. The court martial proceedings against General Fonseka were launched after he was accused of dabbling in politics while still in service. This is, however, not the only charge against him. Intelligence reports said he tried to stage a military coup after he successfully fought the war against the Liberation Tigers of Tamil Eelam (LTTE). He is already faced with fresh court martial proceedings for indulging in fraudulent deals. But the most serious allegation against him is that the former General re-employed some army deserters. The charge, if proved, may lead to a 20-year jail term for him.

Sri Lanka’s war hero is, in fact, a victim of the fight that began between him and President Rajapaksa after the decimation of the LTTE. The General thought that it is he who deserved all the credit for the defeat of the LTTE, whereas Rajapaksa believed that he was the real hero, as the glorious moment for Sri Lanka came under his leadership when he was the Commander-in-Chief of the armed forces. General Fonseka, who believed that the people would overwhelmingly support him under all circumstances, joined the ranks of an opposition party to defeat the President in the January elections. The former Army Chief has been proved wrong. The polls resulted in a clear victory for Rajapaksa’s party. Contrary to this, General Fonseka stands discredited in the eyes of the people because of the bad publicity that he is getting.

All this is, however, not in the larger interests of the country. The fight for supremacy between Rajapaksa and Fonseka came at a time when Sri Lanka needed to concentrate on rebuilding the country, ravaged by the long war between the armed forces and the LTTE. Today Fonseka is at the receiving end. But tomorrow it may be the turn of Rajapaksa, whose government is accused of serious human rights violations during the military drive against the LTTE. Ultimately, it is the country that will suffer.

Thought for the Day

Where is the wisdom we have lost in knowledge?/ Where is the knowledge we have lost in information? — T. S. Eliot

ARTICLE

Growth with high inflation
Who bothers about the common man?
by Jayshree Sengupta

While the economy is all set to grow at 8.5 per cent and inflation is supposed to come down to 6 per cent by December this year, the government does not seem to be worried about recession and industrial slowdown that the European Union and the US have been faced with. India’s unemployment rate is not a double digit one yet and industrial growth is at 11.5 per cent. There are also signs of robust company results, coming especially from the service sector, and generally the economy seems to be on a roll.

Unfortunately, the common man may not seem to be very happy. He or she is burdened with not only the price rise, which has been in double digits for the last six months, but is also shell-shocked at the level of corruption in the country. It is no comfort to ordinary people that inflation is normal for a country experiencing growth (as explained by the Finance Minister in the Lok Sabha recently) because people with fixed incomes are facing severe problems of managing their budgets.

While the common man or woman has to save for hard times and cut corners on everything, the same is not happening to the budgets of the Central and state governments. While the Central government has been (unexpectedly) enriched by the sale of Generation-3 telecom auction bids by Rs 1 lakh crore, there is already a huge list of proposed expenditure on various items for which the government is asking for additional borrowing. Thus, the expectation that the fiscal deficit will be brought down by the additional money in the government’s coffers is not going to materialise and the fiscal deficit will either be the same or exceed the budgeted amount.

There is no sign of austerity in government spending either in the case of the Commonwealth Games or elsewhere. The expenditure for the Games has been blown out of proportion as seen in daily reports. Similarly, in other fields, expenditure overruns are common. The government has also promised a more efficient public distribution system to tackle inflation and malpractices with smart cards for the poor. The poor are expected to be well versed in the use of smart cards when they will be available next year. Hopefully, instead of one rupee that the poor receive out of Rs 7 spent on the public distribution system, they would receive at least half. It would not be an easy task to reach food to the 8.7 crore BPL families.

But, according to a recent NCAER report, the number of the poor is declining. According to the study, the number of the rich today is outnumbering the poor and there are 46.7 million high-income households as compared to 41 million low-income ones. And 62 per cent of Indian households belong to the middle class. It may be true that many people who were poor have climbed up on the income ladder as a result of the economic transition in India from a closed to a globalised economy.

But a recent report by Oxford University is puzzling. According to its multidimensional poverty index, India has a higher number (421 million ) of people living in intense poverty in eight states (Madhya Pradesh, UP, Chhattisgarh, Jharkhand, West Bengal, Bihar, Orissa and Rajasthan) than in all the 26 countries of Sub-Saharan Africa which have 410 million poor. The Oxford index has taken into account parameters like health and education besides income, which seems to be more rational and realistic.

According to the NCAER report, the growing demand from rural India is the reason why industrial growth did not falter during the global meltdown of 2008-09 as compared to other countries in Europe and the US. Rural demand is, of course, important for pushing up the growth of “fast moving consumer goods” ( FMCG) industries. It is also true that the middle income people in rural India are big consumers of mobile phones, motor bikes, soaps, detergents, toothpaste, etc, and that the urban middle classes are spending a relatively less percentage of their incomes on food, and high food prices are not hurting them as much as is true about the poor.

It would have been wonderful if the number of poor actually shrank rapidly with growth. But that is unfortunately not the case, and the reason is the unequal distribution of wealth in recent years, which has been endorsed by the Oxford report. According to the Tendulkar Committee report (2009), 37.2 per cent of the population is still poor. Thus, unless their welfare is looked into by a special safety net by the government, there would be a political fallout in the future.

For them inflation at 10.5 per cent, fuel inflation at 14.2 per cent and food inflation at 9.5 per cent (July 2010) are extremely hard to bear. Add to this the higher rent and other service costs.

Fortunately, the usual fire fighting is going on by the Reserve Bank of India, which has hiked key interest rates four times in the last one year. Recently also it hiked the repo rate (the rate at which the RBI lends to banks) by 0.25 per cent. But with so much black money floating around and with so much being spent and misspent on the Commonwealth Games as well as the Pay Commission rewards and cash handouts under NREGA, it would be very difficult to tame inflation drastically in the near future.

The other factors that are contributing to inflation may also be difficult to resolve like the various structural problems of an inefficient infrastructure, high cost of raw material and high land prices . These are likely to push up the prices of manufactures in the future. One good news, however, is that the Chinese economy is slowing down and as a result, metal and other commodity prices are coming down. This may lead to better company results and can help them in holding down the price line.

Higher agricultural growth may make a difference to food inflation. With 1.3 billion population, there is no way India can have food security unless agricultural growth is revamped. The decline experienced in agricultural production last year has to be made up this year if the monsoon is good. Only then can essential food items be available to all, especially the poor. A higher production of pulses is important for adequate protein intake of children. Unless food inflation comes down further, even the middle classes will feel the pinch and may not be able to afford fast-moving consumer goods and consumer durables like new cars which may, in turn, drag down industrial growth and GDP growth which the government is so sure of this year.

MIDDLE

Soldiering and writing
by Pritam Bhullar

FLAIR for the written word during the college days at Lyallpur (now Faisalabad) in Pakistan, in the mid-40s and later in service, gave birth to an idea in my mind that I should take to writing after retirement. That I would type out my own pieces impelled me to learn typing while I was in service.

Having retired from the Army in 1980, I went in to do a course in journalism. One day during this period, Mr Prem Bhatia and I bumped into each other at the Chandigarh Golf Course. He was Editor-in-Chief of The Tribune as well as the President of the Chandigarh Golf Club at that time. Since I knew him remotely, he asked me: “What are you doing after retirement, Colonel?” “I am doing a course in journalism”, was my reply. His next question was, “What for?” “I want to take to writing”, I quipped. “Soldiering and writing don’t make good bedfellows. However, you may try your luck at it”, he said.

Having completed my course, I tried my luck in one or two weeklies and met with success. This encouraged me to write a piece for The Tribune in early-1984. Getting an acceptance slip from the Editor-in-Chief was an occasion for me to celebrate. What filled me with more joy was to read my article in The Tribune. This was followed by writing “middles” for The Tribune and I continued with these till 1985, when I started writing a piece now and then for ‘Sunday Reading’ (now Spectrum) in The Tribune. Fortunately enough, I collected only a few rejection slips.

The time kept ticking away till I got a weekly column “In Uniform” in The Indian Express in 1986, which continued until 1991. Meanwhile, I also used to write pieces on social problems in The Tribune. In 1991, I was given the task of writing two to three columns a month on defence in The Tribune, which continued to be published on edit/oped page until 1998. Then I took “Fauji Beat”, a fortnightly column, in ‘Sunday Reading’ of The Tribune.

After Chandigarh Tribune took birth, “Fauji Beat” travelled to it in February 2002, as a weekly column and continued till May 2008, when my wife was placed on dangerously ill list and I had to suspend this column.

India West, USA, Free Press Journal, Maharashtra Herald and The Daily, Bombay, Plus Newstime, Hyderabad, were some of the other publications that carried my syndicated by-lines for good 10 years. Hindustan Times has carried about a dozen articles by me. But I have written only once for The Times of India and that was a middle many years ago.

There was a time when hardly any military man could be found among the writers. But things have changed now as a number of them have taken to the pen and some of them have become quite readable. This makes one happy as soldiering and writing have begun to make good bedfellows.

OPED GOVERNANCE

RTI under attack

The Right to Information is in peril following attacks on RTI activists. Now that the Union Cabinet has cleared a new Bill to protect whistleblowers, Parliament should enact it fast. However, its success would depend upon a credible mechanism in the Central Vigilance Commission for fair investigation of complaints, says V. Eshwar Anand

Even though the Right to Information Act guarantees citizens their right to know and expose corruption in government offices, increasing attacks on RTI activists have put this most important right in jeopardy. The RTI Act was enacted after a long struggle by civil rights organisations. However, those who dare question the ways of the powers that be and expose them are eliminated in cold-blooded murders.

The manner in which Amit Jethwa was shot dead by unidentified men in point blank range near the Gujarat High Court in Ahmedabad on July 20, 2010, is shocking. His fault? He fought against the illegal mining lobby in the Gir forest. After Amit had filed a public interest litigation (PIL) against the mafia, it is said that the authorities had started taking action against it. His murder is thus considered a big loss to the RTI movement.

Amit formed a nature club for youth in Gir. In 2008, he had brought to the authorities’ attention the mysterious death of lions after which an inter-state poaching gang was caught from Madhya Pradesh. The gang had reportedly killed nearly 25 Asiatic lions in the Gir sanctuary. Unfortunately, Amit is one of the eight RTI activists killed this year alone.

The RTI is a facet of and underlies all fundamental rights whether it be equality, liberty or any of the seven freedoms guaranteed to citizens under the Constitution as also the social, economic and political justice referred to in the Preamble to the Constitution. For, if enforced properly, the Act can act as a check against the misuse of power by those who are constitutionally bound to ensure the realisation of these rights.

Its importance can be gauged by the fact that when labourers at Rajasthan’s famine relief sites demanded minimum wages on public works, they were refused the same on the ground that according to the concerned engineer’s measurement book, “they did not work”. Worse, the authorities refused to even allow the labourers to see the book saying that it was prohibited under the Official Secrets Act!

It was at this juncture that Aruna Roy’s Mazdoor Kisan Shakti Sangathan spearheaded the movement for RTI and organised public rallies in which outsiders were also invited. This resulted in timely payment of wages and action against several government employees for embezzlement of funds.

Subsequently, organisations like the Commonwealth Human Rights Initiative, the National Campaign on the People’s Right to Information, the Association for Democratic Reforms, academics, lawyers and legislators campaigned for a legislation to allow access to information from the government and its officers. RTI laws were enacted by Tamil Nadu (1997), Goa (1997), Rajasthan (2000), Karnataka (2000), Delhi (2001), Maharashtra (2002), Assam (2002), Madhya Pradesh (2003), and Jammu and Kashmir (2004). As for the Centre, it made a feeble attempt in the form of the Freedom of Information Act, 2002. However, while it drew flak for too many exemptions, it never came into effective force.

After sustained public pressure, Parliament finally enacted the RTI Act in 2005. Despite its initial successes, the legislation has come under severe attack as its activists are facing a big threat from the powerful mafia with political clout and vested interests.

The question of protection of whistleblowers caught the nation’s attention when Satyendra Dubey, engineer and project director of the National Highways Authority of India, was killed in Gaya, Bihar, in 2003. He had to pay a very heavy price for having complained to the then Prime Minister Atal Bihari Vajpayee about corruption in the construction works of the prestigious project.

Surprisingly, though Dubey appealed to the Prime Minister to keep his name confidential, his letter, in a typical case of bureaucratic callousness, was forwarded to various departments concerned. In April 2004, the Supreme Court directed the government to issue an office order, the Public Interest Disclosures and Protection of Informers’ Resolution, 2004, designating the Central Vigilance Commissioner (CVC) as the nodal agency to handle complaints on corruption.

However, the murder of Manjunath Shanmugham, an IIM graduate and Indian Oil Corporation sales manager, for having exposed the mafia’s role in petrol adulteration shook the nation’s conscience and brought renewed focus on the need for a law on protecting the whistleblowers.

The Union Cabinet’s clearance of the Public Interest Disclosure (Protection of Informers) Bill, 2010, on August 9 is a forward step. This will become an Act after its passage by Parliament and the Presidential assent.

The Act, after due enactment, will put the onus on the CVC to protect the identity of citizens (by extension, RTI activists and whistleblowers) who provide information about the misuse of public money and authority. The CVC will have the powers of a civil court, including the authority to summon anybody, order police investigation and protect the whistleblowers. Significantly, the Bill empowers the CVC to take action against those who reveal the identity or even threaten whistleblowers. The CVC will be able to take action against anyone who makes frivolous complaints.

At the same time, there is a strong case for making the legislation more broadbased. The nexus between corrupt politicians and bureaucrats is well known. Why not include politicians as well in the Bill? As for the CVC’s power to issue summons, the law must ensure that the police does not create hurdles.

Moreover, keeping in view the global experience, especially in the US (with special reference to the Sarbans-Oxley Bill in 2002 that extended protection to insiders who expose corporate fraud), the new Bill should provide access to suitable legal help. As most whistleblowers are witnesses themselves, a proper witness protection programme will go a long way in making the new legislation realistic and meaningful.

The Bill is well intended. However, given the government’s poor track record, it is doubtful to what extent it would help protect the whistleblowers. Consequently, its success will depend upon the establishment of a credible mechanism in the CVC for fair investigation of complaints and ensuring complete anonymity of the whistleblowers against any retaliatory action.

Those who laid down their lives this year
n Satish Shetty, Talegaon near Pune, Maharashtra, was killed for his campaign against the land mafia in certain corrupt deals in the Mumbai-Pune expressway. (January 13)
n Visharam Laxman Dodiya, a Surat-based shopkeeper following his refusal to withdraw an RTI application seeking information on illegal electricity connections in Surat city. (February 11)
n Shashidhar Mishra, Begusarai, Bihar for exposing corruption at the panchayat and block levels. (February 14)
n Arun Sawant, Badalpur, Thane, Maharashtra for filing an RTI application with the Badlapur Municipal Council. (February 26)
n Sola Ranga Rao, Sitaram village, Krishna district, Andhra Pradesh, for his complaint to the District Collector on the funding of the village’s drainage system. (April 11)
n Vitthal Gite, Beed, Maharashtra for exposing irregularities in a Beed village school. (April 21)
n Dattatray Patil, Kolhapur, Maharashtra. He had unearthed a corruption racket which resulted in the removal of the area’s DSP, a senior police inspector and officials of the Ichalkaranji Corporation. (May 22)
n Amit Jethwa, Ahmedabad, Gujarat for his campaign against the illegal mining lobby in the Gir forest area. (July 20)

The proposed law: A new hope?
n The new legislation will put in place a system to handle complaints against government functionaries by persons who wish to remain anonymous.
n It empowers any person to make a complaint of corruption or disclosure against any employee of the Central or state government or public sector undertaking to the Central Vigilance Commissioner (CVC).
n The CVC, the nodal authority, which is to be designated as the competent authority for complaints, will have the powers of a civil court, including powers to summon anybody, order police investigation and provide security to the whistleblower.
n The CVC will not reveal the complainant’s identity but will have the authority to ignore complaints of vexatious or frivolous nature.
n The CVC cannot investigate complaints pertaining to matters which are sub judice, prejudicial to the security of the defence establishments, international relations, proceedings of the Union Cabinet or those beyond the limitation period of five years.

Its bark & its bite
Rajan Kashyap

The Right to Information Act 2005 has captured the fancy of Indian citizens. Unique demands for information have begun to emanate, some of these from unexpected quarters. The first off the block were some civil servants. Being themselves the custodians of official record, they deluged public authorities with requests for “inside” information that helped them in their own service disputes.

Members of the fourth estate followed closely. The media realised that certain items of knowledge, hitherto concealed from public view, could be procured at a cost of just Rs 10. This material could build reputations of investigative journalists, and in many cases promote sensationalism and worse. Businessmen too found that they could legitimately pry into official decisions affecting them commercially.

Armed with potent knowledge political leaders could now take potshots at rivals for errors of omission and commission. Prisoners now seek to question the reasons for solitary confinement, and also seek details about the personal wealth of jailors who might have oppressed them during their incarceration. The functioning of such hallowed institutions as the Public Service Commissions, the universities, and even the High Courts and the Supreme Court are now under the scanner.

Has the RTI Act achieved its lofty objective? Official machinery has begun to respond, albeit under duress to demands for information. The three organs of the state — the executive, the legislature, and the judiciary — are defined in the Act as competent authorities. All three are liable to supply information, subject to certain exemptions listed in RTI Act.

On paper, RTI confers on the common man the status of master. According to Section 8 of the Act, “the information, which cannot be denied to the Parliament or a State Legislature, shall not be denied to any person.” Properly understood the power available with every Indian citizen to secure information is in a way greater than that enjoyed by his MLA or MP.

The Act mandates a time limit of 30 days during which any request under the RTI Act is to be served. Indeed, where life and liberty are involved, information has to be supplied (by police, etc.) within 48 hours of the filing of request. No such time limit exists in respect of answers to questions in the legislative assembly or Parliament. Studies show, however, that the majority of requests received under the RTI Act are for items of interest to individuals, and not for public causes.

Sadly, the authorities are seldom questioned about such crucial public issues as utilisation of funds, timely completion of projects, the problems of slums and encroachments in towns, or environmental degradation in rural areas. Here is empowerment gone waste.

All notes recorded in government files, indicating decision making at various levels, are open to disclosure. For honest and upright civil servants, RTI can be a shield to resist arbitrary or biased decisions, which eventually must become public. Few officers are seen to use this inherent power. Most prefer the easier path of no confrontation. Similarly, under an RTI umbrella, public-spirited political leaders are free to take conscientious decisions fearlessly. And yet we have the spectacle of clean politicians succumbing to populist and other pressures.

The RTI Act expects all officials to use information technology to place all important information regarding its working on its official website. In practice, this is found to be impossible since records are in disarray. Furthermore, most Public Information Officers are untrained. Timid in handling RTI applications, they lack knowledge about their own work. With many officials RTI is feared rather than hated.

Ideally, the click of a button should bring every item demanded to information seekers. But the country is far from achieving efficiency in basic record management. Information is knowledge, and knowledge itself is power. For good governance, the power of this watchdog’s bite has to match its resonant bark.

The writer is a former Chief Secretary and Chief Information Commissioner, Punjab