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India’s N-commerce
Energising India |
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Doping shame
Effective Lokpal not in sight
Humour from abroad
The only explanation for the government’s decision to exempt the CBI from the ambit of the Right to Information Act is that the agency would not like to be accountable for its extra-Constitutional or discretionary activities.
What is there to hide?
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India’s N-commerce
It
is a matter of great relief for India that the US, Russia and France are ready to honour the commitments they had made to India under their respective civilian nuclear cooperation agreements signed with New Delhi. The Nuclear Suppliers Group’s (NSG’s) latest decision that the countries that have not signed the Non-Proliferation Treaty may get debarred from acquiring uranium enrichment and reprocessing technologies from any of the NSG members is not fair so far as India is concerned. India had been given a clean waiver after the operationalisation of the 2008 Indo-US civilian nuclear deal on the basis of its impeccable non-proliferation record. The NSG had then accorded India the right to do nuclear commerce with its members despite not being a signatory to the NPT. This was a major achievement for New Delhi, as the NSG waiver ended India’s status as a nuclear untouchable, particularly for the transfer of latest technologies. At its coming meeting at The Hague the NSG is expected to announce strict conditions for the transfer of civilian nuclear technologies in the wake of the Fukushima nuclear disaster in Japan. No one can question the concern expressed by the 46-nation NSG. It intends to ensure that civilian nuclear technologies remain in safe hands. But clubbing India with such countries as have a dubious track record can never be justified. India has not signed the NPT because it considers it discriminatory in nature. But this has not affected in any way India’s conduct as a responsible nuclear power. The controversial NSG announcement made after its recent meeting in Noordwiik, the Netherlands, propelled the US, Russia and France to quickly come out with their stand that the civilian nuclear cooperation agreements they had signed with India remained unaffected. A US State Department spokesman said, “Nothing about the new enrichment and reprocessing technology transfer restrictions agreed to by NSG members should be construed as detracting from the unique impact and importance of the US-India agreement or our commitment to full civil nuclear cooperation.” France and Russia, too, have made similar commitments. All other countries which had been planning to go in for nuclear trade with India should declare that they will go ahead with their plans regardless of the decision of the NSG.
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Energising India
Haryana
has got the country’s first renewable energy-based mini-grid system developed by The Energy and Resources Institute (TERI). The smart mini-grid system will ensure the supply of quality power and improve the working of the rural electricity supply systems. The mini-grid uses a solar photovoltaic system, a wind electric generator, a battery storage system and a diesel generator. It is a small but significant effort towards the use of renewable sources of energy, which have still not made any significant headway in improving the country’s energy security. The ever-widening energy demand-supply gap is an impediment to India’s growth. The country’s consumption of coal, oil, natural gas and electricity is expected to double by 2020. The heavy dependence on coal is a cause for concern as it adversely impacts the environment. Oil gives India jitters of another kind. Since the country is heavily oil-dependent, fluctuations in its global prices often jolt the economy and lead to price rise. Though clean, nuclear energy is yet to be fully tested and tapped. Moves to install nuclear energy plants often trigger protests by villagers. Even political leaders are divided on the issue. India has vast water resources for hydro power but does not attract sufficient foreign investment to build dams, which too raise the hackles of NGOs. Beginning 2001, India has been pursuing power reforms. Power boards are being split to separate generation, distribution and transmission functions to encourage private sector participation. But states, barring a few, are reluctant. Power pilferage and transmission losses are a matter of concern. The non-polluting renewable sources of energy like the sun, wind and biogas hold promise but progress in this area has been limited — due to lack of political will and a shortage of resources. The use of solar energy devices has not picked up despite subsidies. To achieve and sustain high growth, India will have to efficiently exploit all possible sources of energy, especially green energy.
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Doping shame
The
blatant use of banned drugs by weightlifters, discus throwers and even runners is about the worst-kept secret of Indian sports. It is just that those who run the show and are supposed to prevent such illegality merrily turned a blind eye to it. It is thanks to this leeway that doping has become so very common that it has brought the entire sports community of the country into disrepute. In future, it will be very difficult for any budding sportsperson of the country to excel, without being suspected of having taken performance-enhancing drugs. Years of denial have taken a heavy toll. As it has come out, far too many people are involved in this racket. Coaches, doctors and other advisers were all in the know and yet connived with the dangerous practice, which puts even the lives of the sportspersons at risk. In present times, winning a medal brings in mega-bucks. So, they are willing to take any risks. The coaches too know that their stock goes high only if their wards win laurels. So, they are ever willing to compromise on principles. In fact, they actively encourage the use of such drugs, especially foreign experts. Now that the dirt has hit the fan, there is need for a thorough purge. Not only sports persons, but also sports administrators need to be sent through the wringer. It is also necessary to take chemists to task who have been selling such drugs without any prescription. The Indian Olympic Association has rightly castigated the National Anti-Doping Agency (NADA) and the Sports Authority of India. After all, how could such an odious practice proliferate without their knowledge? Some players and officials have all along been trying to sweep the matter under the carpet but that has only made things worse. Now is the time to turn the carpet out of the house and do a thorough cleaning, dry or wet, or may be both.
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A life without cause is a life without effect. — Barbarella
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Effective Lokpal not in sight
AS expected, the government and Anna Hazare’s team have disagreed on vital points relating to the institution of Lokpal. The question of inclusion of Prime Minister within the ambit of the Lokpal is being falsely blown out of proportion by government apologists. The Prime Minister, though head of the government, is only the first among equals. In a democratic country, a political vacuum does not arise as the Cabinet has a collective responsibility. Also, our past experience does not show that all our Prime Ministers have been angels. Serious credible accusations have been made against them. The regret always was that in the absence of an independent mechanism like the Lokpal to enquire into these allegations, the ruling party was able to successfully scuttle any honest independent enquiry. Prime Minister Manmohan Singh has in public consented to being included within the jurisdiction of the Lokpal as had his predecessor A.B. Vajpayee — the supposed concern of the ministers is puerile, being more loyal than the king. The stand of ministers for the exclusion of Prime Minister is so incongruous when it is noted that the Standing Committee on Law and Justice, headed by Congress spokesperson Jayanthi Natarajan, has said that the Bill should cover Prime Minister also. This cynicism is increased when we find that Mr Digvijy Singh, the self- proclaimed alter ego of Mr Rahul Gandhi, supports the Lokpal having jurisdiction over the Prime Minister — people are legitimately hoping that Mr Gandhi would also indicate his position on a matter which is causing such a division in society. The suggestion to exclude the Prime Minister is sought to be justified by ministers by taking the puerile plea that the Prime Minister continues to be under the jurisdiction of the Prevention of Corruption Act. It is surprising that ministers are comfortable for the Prime Minister being prosecuted at the report of junior police officials but not at the instance of a high-powered body like the Lokpal. Is this not the unspoken premise that under the Corruption Act the CBI will have to get sanction from the government? But which subordinate will dare to sanction the Prime Minister’s prosecution? For heaven’s sake, do not play joke with the people and be reminded of what John Adams, one of the founding fathers of the US Constitution, said, “The people have a right, an inalienable, indisputable, indefeasible, divine right to that most dreaded and envied kind of knowledge — I mean, of the character and conduct of their rulers.” Another laughable justification by ministers is that the exemption will not be applicable after the Prime Minister has remitted office — this is like locking the stable after the horses have run away. Incidentally, even the discredited toothless draft Lokpal Bill, 2010, included the Prime Minister and members of Parliament. The inclusion of the higher judiciary consisting of judges of the Supreme Court within the purview of the Lokpal is undesirable. I am conscious of the shame that some in the higher judiciary have polluted the institution. I am only suggesting a separate National Judicial and Accountability Commission. Call it the Lokpal (Judicial) Commission with the same powers as the Lokpal. This will serve the purpose and still keep the distance between the executive and the judiciary as mandated by the Constitution. The rhetoric of Mr Kapil Sibal challenging anyone to give an example that “which PM in office anywhere has been prosecuted in the world”, I am sorry at this ignorance. Possibly, this is due to Mr Sibal not being assisted by his usually competent juniors who were with him when he was appearing in courts. Now, possibly, he is being ill served by his public relations officer — otherwise he would have been told that the present Prime Minister of Italy is being prosecuted before a magistrate on charges of corruption, having mafia links and deviant sexual behaviour. In France, proceedings were started against the then President Chirac for misappropriation of public money. Also in Israel, a former President has been sentenced to imprisonment for his deviant sexual behaviour by a magistrate. The near contempt of the masses protesting at the scourge of corruption is shown by Mr Sibal comparing Anna Hazare to “Pied Piper of Hamlin”. Mr Sibal cautiously did not complete the story because those who were said to have followed the Pied Piper were rats, and following the Piper they just drowned in the sea. I need not comment on such crude and insulting comparison of the masses who are waging a struggle against corruption. The government’s spurious claim by purporting to project Parliament as the real sovereign is fallacious. Dicey, the British constitutional authority, says, “Electorate is, in fact, the sovereign of England and the conduct of the legislature… should be regulated by understandings of which the object is to secure the conformity of Parliament to the will of the nation.” Another heresy put forth against the holding of protest meetings by people to force the government to pass worthwhile legislation is that it is undemocratic and the only resort people have is to try to persuade the legislators to pass a particular law, and if they do not agree, then they should try their chance during elections. This is sheer heresy and negated by the Supreme Court (1960) in Dr Lohia’s case, who was arrested for asking farmers not to pay the increase in canal water rates to the UP government. Ordering the release of Dr Lohia, the court said, “We cannot accept the argument of the learned Advocate-General that instigation of a single individual not to pay tax or dues is a spark which may in the long run ignite a revolutionary movement destroying public order. We can only say that fundamental rights cannot be controlled on such hypothetical and imaginary considerations. It is said that in a democratic set-up there is no scope for agitational approach and that if a law is bad the only course is to get it modified by democratic process and that any instigation to break the law is in itself a disturbance of the public order. If this argument without obvious limitations be accepted, it would destroy the right to freedom of speech, which is the very foundation of democratic way of life.” A restrained approach by the government alone can prevent a collision with the masses, who are determined to vigorously pursue their struggle for an effective
Lokpal. The writer is a former Chief Justice of the Delhi High Court.
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Humour from abroad One has heard about Churchill’s ready wit. Here are some gems; and a few from my trips abroad. Churchill had his chambers next to a minister who would talk at the top of his voice. One day, while leaving office, Churchill sent his secretary to tell the minister to lower his voice. The secretary came back and explained: “Sir, he says he’s talking to Glasgow”. “I know,” replied Churchill: “Tell him to use the telephone!” William Joynson-Hicks, British Home Secretary in 1920s, a supporter of General Dyer over Jallianwala Massacre, made some statements in Parliament to which Winston Churchill gave signs of demurring. “I see my right honourable friend shakes his head’, said Hicks, ‘but I am only expressing my own opinion”. “And I, Sir” answered Winston: “am only shaking my own head!” During a dinner in Virginia before World War II, Churchill requested for some ‘breast of chicken’. An American woman scolded him for using a ‘vulgar’ term, saying he should have just said ‘white meat’. Churchill, who never missed a chance, sent the woman a corsage the next day, with a note: “Pin this on your white meat”. While the U.S. stock market was at an all time high, the ups and downs frightened a lot of small investors. A client went to his broker and asked if he was worried. The man replied that he slept like a baby. The client was amazed and asked, “Really; even with all the fluctuations?” The broker said, “Yes. I sleep for a couple of hours, then wake up and cry for a couple of hours.” The wit I enjoyed in some of my trips abroad was superb! Sample some from the UK. Beef Eaters (wardens) in traditional robes conduct visitors on a free guided tour at the Tower of London. Our guide was humorous. The first question he asked: “How many from Asia”. A few hands went up. How many from America... New Zealand...Australia etc. Having got replies, he said, tongue-in-cheek: “I must apologize to my friends from the US, Australia and New Zealand, that the commentary for this tour will be in English”! The jewels at the Edinburgh Castle are very few vis-a-vis Tower of London, but what is interesting is a huge ‘Stone’, to which the guide pointed and said: “This has been ‘the stepping stone’ to the throne at all coronations for over 600 years from 1396, but the British do not want to return even a stone to us, as they want it for all future coronations, it being “Stone of Destiny” on which every British Monarch would keep his/her feet for being crowned/enthroned!” He then showed us the guns on the ramparts; took us to the 1 O’ Clock Gun; explained its origin and as to why it didn’t fire at 12 or 2 etc: “We Scots are miserly, so we ‘waste” only one round per day to indicate time for the ships and not 2 to 12; more so for the ‘British’ King/Queen!” At Edinburgh, like most tourists, I had photographs taken in a “Tartan” (Scottish Highlander) dress of my choice, in three poses. When I returned to my hosts in Aberdeen, we went to their neighbours: the Stuart’s; the hostess insisted I carry my Tartan photos! Mrs Stuart said: “You look so impressive with that long and far away General’s look”. Stuart said he felt happy I had chosen a Stuart Tartan but I had demoted myself considerably, as it was a Sergeant’s
dress!
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The only explanation for the government’s decision to exempt the CBI from the ambit of the Right to Information Act is that the agency would not like to be accountable for its extra-Constitutional or discretionary activities.
The
Union Government’s decision to place the Central Bureau of Investigation (CBI) outside the ambit of the Right to Information Act has come under sharp criticism. They do not seem misplaced either. The decision to exempt the CBI from the RTI Act is sought to be justified on the grounds of national security and possible impact on intelligence gathering. It must be made clear in no uncertain terms that the CBI is neither an intelligence gathering agency nor a security organisation. It is an investigative agency assigned legally the job of exposing rather than concealing. By the very nature of its work, the CBI has to be an open organisation notwithstanding the sensitive cases that it may be dealing with. The sensitivity in the context of the CBI is when it deals with cases against the high and the mighty “...in the investigations of which one was expected to conceal more and expose less...” It is precisely for this requirement on the ground, as against the legal or operational requirement of the CBI, that such secrecy is needed. Functionally, as against an intelligence organisation that requires total protection from transparency, investigations actually require complete transparency after a certain stage. It is only the premature disclosure of information during the investigation that usually gives undue advantage to the accused, who may cover his tracks, destroy the evidence and scuttle the investigation.
Transparent investigation But once the charge sheet has been filed, there is no requirement for any further protection. Incidentally, all the evidence to be relied upon is communicated to the accused person so that he may prepare his defence. Once it is filed in the court of law, the charge sheet also becomes a public document. Some of the information collected during investigations and contained in the case diaries of the agencies may not be shown in the charge sheet as that may be related to the security of the witness or of the accused and, therefore, not advisable to be brought in the public domain. Such information and documents, on which the prosecution does not rely, are already protected under the Criminal Procedure Code and the Evidence Act. However, to meet with the ends of justice and to ensure that nothing is held back, the court trying the case has a right to look into all these documents and to use them as per its discretion. The prevalent laws are quite adequate. Further secrecy, particularly for the CBI in corruption cases, is designed only to protect the people in high places. As such there is no necessity for any further privilege for any investigating agency in the country under the Right to Information Act. As a former CBI officer having fought the corrupt system from inside the government, I concluded that the CBI under the control of the government has to conceal more than reveal, against its lawful role of collection of facts truthfully and impartially without any fear or favour. The exemption given to the CBI is an extremely retrograde step; it is going backwards and is completely undesirable and redundant. This will only encourage criminality and corruption in the government and may not leave even the CBI untouched as more you keep things under wraps, the more liable the process is likely to be misused by everyone.
Tradition to protect the powerful This will only create another class of privileged people who would be beyond the operation of laws. Coming to the experience of other countries, such kind of protection has never been given to any agency in those countries that boast of the Rule of Law or uphold Human Rights. Are we going to negate the rule of law that our constitution enshrines? In India, however, such steps by the governments to protect the high and mighty have been fairly common. I am tempted to cite two instances. First, the directive that was issued in the eighties to protect politicians and officers beyond the rank of Joint Secretary against any inquiry or investigation. The direction was quashed by the Supreme Court as discriminatory and illegal in the famous Jain Hawala case in December 1997. But lo and behold, in 1998 itself it was placed back on the statute book through an ordinance and later enacted into the CVC Act in 2003. ( Significantly, the NDA government was in power in both 1998 and 2003) The other instance is an investigation abroad that was to be conducted against a highly placed accused. That required a Letter Rogatory from the Indian Court to the court of the country where the investigations were intended to be conducted. Under section 166 of the Criminal Procedure Code, any officer in charge of a police station can apply for such a letter. In 1993, a VVIP was to be protected, so the government modified the procedures by an executive order that the CBI should apply to the court for the LR only after obtaining permission from the government, thereby the possibilities of investigation abroad against any influential person were virtually closed, as the government could deny and did deny such permission indefinitely. Requests were made to the government in this case for issue of LR in May 1993, but the Government of India did not give the permission till December 1996, when this writer left the CBI. ( It was of course the Congress which was in the saddle in 1993 ) So, there could be no investigations abroad, though the VVIP was accused of receiving kickbacks, keeping huge balances in banks abroad and acquiring a number of firms, in India and abroad. So much so, that power to apply for letter rogatory, vested in the SHO under the Code of Criminal Procedure, was withdrawn from the CBI and concentrated in Government of India and that too in the PMO (as was informally learnt), leaving nothing to chance. Though the papers were pending with the Union Government for years but still this fact could not be made public by the CBI, as that would have amounted to censuring the Government, which the CBI under the control of the government itself could not afford. The writer is a retired DGP of Haryana and former Joint Director, CBI
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What is there to hide? It
is hard to understand why an agency concerned with investigating corruption should be exempted from the RTI Act. But the government has done just that: and done it against the protests of the strongest voices including people like a former Chief Information Commissioner. The exemption is particularly disturbing because it signals the ability and the inexorable desire of the government to slowly but steadily nibble away at people’s right to know. Detractors can be forgiven for feeling that the exemption from disclosing information about its functioning now offers the government a fine convenience to protect ‘its own’: bureaucrats in high places, opponents inside and outside; disgruntled business rivals who would probe why another is the favourite of the day; politically useful friends whose messes embarrass the government all the time; the biased investigations that wax and wane in vigour. With graft gnawing at the edifice of governance, squirreling away the CBI from the public eye adds one more excellent tool to the cause of the corrupt. It will join the already handsome protections provided to the bureaucracy through the law that say, you cannot even begin an investigation against senior officers without specific permissions, let alone prosecute them for corruption. This is in line with the protections that the seniors in the judiciary have built in for themselves. Even an FIR cannot be filed against a High Court or Supreme Court judge accused of corruption, without the sanction of the Chief Justice of India. The CBI is a most powerful hound in the kennels of whoever has the lease of the house for the moment. So it is unlikely that the Opposition will create any great furore in defence of openness beyond making the right noises. More likely it will satisfy the obsession to always criticise every move of the government with a drizzle of tepid criticism on the mountain already being heaped on government because of its handling of the Anna-Ramdev affair. There is no doubt that this latest attack on RTI is intended to stem the deluge of dirt that is gushing out as the public wants to know who has dirty hands, and want to be governed by only those with clean ones. But with corruption being now such a complex cloth of connections, revelations tumbling out one after the other about powerful individuals are likely to threaten not only the government of the day but the whole edifice of governance. Perhaps this is exactly the catharsis that is needed but in all likelihood may never be allowed to happen. The chaos is too hard to even contemplate, let alone prepare for controlling it. There is no rational argument for taking the CBI out from under the RTI Act. It is not an intelligence agency nor is it guarding national security like the armed forces. It is essentially an anti-corruption watch dog and prosecutor which has, over time, been subverted into a catch-all agency governed by whoever is ruling at the Centre. Nothing in the RTI Act hampers its working. If a particular disclosure has the possibility of adversely affecting its investigations, it can simply fall back on one of the many exemptions that are readily available in the Act. But going through that process would mean that the refusal to disclose could be challenged before the Central Information Commission and the Bureau would have to give an account of itself; its actions, its reasons for secrecy and its progression of each case. It is this accountability that it wants to avoid perhaps because it knows a lot of its discretionary actions will not stand up to scrutiny. A blanket ban for an agency like the CBI is so useful for hiding inconvenient truths. India’s national motto –satyameva jayate- goes for a toss when dark deeds are rewarded with opaque robes of impunity. By retracting its decision to insulate the CBI, the Centre might like to give itself a fig leaf of a chance at running a decently transparent government. Maja Daruwala is Director and Venkatesh Nayak is Programme Coordinator of
Commonwealth Human Rights Initiative, New Delhi
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However, bonafide protection in the field of investigation already exists under section 8 (h) of the Right to Information Act that provides “....there shall be no obligation to give any citizen information which would impede the process of investigation or apprehension or prosecution of offenders...” That applies not only to CBI or other central investigating agencies, but also to similar agencies of all the state governments as well.