The Tribune, Chandigarh, India

PERSPECTIVE

The bitterness, mistrust and acrimony of the past year must give way to greater harmony,resolve, and mutual respect. The nation’s self-image and self-esteem, people’s confidence in governance and India’s global reputation and investor confidence in the nation are all at stake. It is time to act decisively and swiftly
ALL IS NOT LOST
The Lokpal Bill can still be salvaged
N Jayaprakash Narayan

Even in the best case scenario, it is hard to persuade law makers to accept an ombudsman that will swiftly investigate and ensure punishment for acts of corruption and wrong-doing by those in the political executive, legislature and in the senior bureaucracy.

It requires great resolve, tact, spirit of accommodation, and pragmatic approach. In this case, all the players – the government, political parties, opposition, and civil society – committed follies.

The government failed to incorporate a few key provisions that would have inspired more confidence in the public; and wherever the Bill had good provisions, it failed to take its alliance partners on board, and also failed to effectively communicate the strong features of the Bill. Therefore its approach was reactive, defensive and delayed.

The parties that opposed the Bill indulged in cynical grandstanding, and allowed the impossible ‘best’ to be the enemy of the possible ‘good’. They allowed red-herrings like “assault on states” to dominate the debate and kill the Bill, and went back on the commitment of the Parliament.

The Civil society, instead of understanding the complexity of the process and showing respect, kept changing the goal posts and acted with unconcealed contempt and hostility. Now is the time for all players to take a deep breath, and spare some time for sober reflection.

The good & the bad

The Lokpal and Lokayuktas Bill before Parliament does have certain deficiencies. The Ombudsman has no suo motu powers and has no investigative agency of its own. The fetters on CBI( Central Bureau of Investigation) and ACB( Anti Corruption Bureau) still remain in respect of cases not monitored by Lokpal / Lokayukta in the form of prior government clearance for investigation (Section 6A of Delhi Special Police Establishment Act), and prior approval for prosecution (Section 19 of the Prevention of Corruption Act, and Section 197 of the CrPC).

State ACBs remain completely under government control in respect of appointment of director and other officials, and superintendence and guidance. These weaknesses need to be addressed.

However, the Bill did propose an extremely strong and independent Ombudsman. Everybody – PM, CM, Ministers, MPs, MLAs, senior officials – was brought within the jurisdiction of the Lokpal/Lokayukta. Junior officials and employees too are brought under the Lokpal through the CVC.

The CBI director, the Bill provided, will be appointed by a totally bipartisan committee of PM, Leader of Opposition (LOP), and CJI, in which government has only one vote out of three. CBI officials will be appointed by a five member committee of the full CVC and two secretaries to government in consultation with the Director. The CBI and ACB will be accountable to the Lokpal/Lokayukta in respect of all investigations ordered by them.

Prosecution of cases and creation of special courts are within Lokpal/Lokayukta purview. Attachment of properties by Lokpal /Lokayukta, and confiscation by special courts are incorporated in the Bill. Provisions relating to appointment and removal of Lokpal / Lokayukta ensure their independence. All these and other provisions give real and substantive authority to the Ombudsmen.

The talk of a weak and partisan Lokpal / Lokayukta is a sad reflection of political rhetoric divorced from facts. In particular, two issues dominated the Parliamentary debate, and derailed the legislation. They pertain to autonomy of the CBI and Constitutionality of the Lokayukta provisions.

The CBI

The director of CBI will be appointed by the committee of PM, LOP and CJI. This is an extra-ordinary provision, which is not applicable even to the other Constitutional authorities like Election Commission, CAG, UPSC etc. All officers of the rank of SP and above shall be appointed by the three-member CVC and two secretaries to government, and the five-member committee shall consult the Director on these appointments.

The CVC (Central Vigilance Commission) exercises general superintendence of CBI. In respect of cases referred by the Lokpal, CBI will report to the Lokpal. Similarly, CVC will report to the Lokpal in respect of cases referred to it. In addition to all these provisions, Section 38 gives extraordinary powers to the Lokpal in respect of corruption allegations against its own officers, and officers and employees of all anti-corruption agencies including CBI and CVC. The Lokpal has powers of suspension, prosecution and disciplinary action against erring officials of all these agencies.

In the face of these provisions, it is churlish to argue that the CBI will be under government control. The much-talked about administrative control of the government is limited to two issues – budget and cadre control. Both these must be understood in perspective.

CBI’s real challenge in the future dispensation will not be government control. It will be capacity-building. There are only 6000 personnel in the CBI with nation-wide jurisdiction. Of these, only about 2000 are investigators. The number of corruption cases registered by CBI is of the order of only 1000 or so every year. Obviously, these are miniscule numbers in the face of a massive national problem.

ACBs suffer even more in terms of inadequate staff, infrastructure and capacity. We need to have a plan and action programme to expand the CBI almost ten-fold over the next ten years, if the agency has to respond to the growing challenges and serve the country effectively.

This should be coupled with adequate infrastructure for surveillance, forensic laboratories, communication and mobility. Similar capacity – enhancement is required in state ACBs. All these require significant budgetary commitments. While control of budget should remain with Parliament and government, there should be firm commitment to expand the agencies and provide adequate resources to them.

Cadre control

Regarding cadre control, the government’s role cannot be dispensed with, because CBI is largely populated by officials of various other agencies drawn from a variety of sources. Even the senior IPS officials are drawn from states, because they belong to an All-India Service.

Consequently, several matters of coordination, seniority, encadrement, availability of officials and consent of states and parent agencies can be handled only by the government. Therefore the argument that CBI, in the new dispensation, has no real autonomy is weak and unsustainable.

Clearly, we have to be cautious in creating a strong, independent investigative agency, lest we create a state within-state, like the ISI across the border, with its own agenda, and accountable to none.

But there is no case to retain Section 6A of DSPE Act, and Section 19 of PCA and Section 197 of CRPC in respect of corruption matters. These sections should be repealed, or amended suitably so that the CBI is not fettered in its work. Prior sanction of prosecution, if still required, can be entrusted to the Lokpal. That will guarantee full autonomy of CBI.

There seem to be two competing approaches on CBI’s superintendence. Many argue that CBI must be under the single, unified superintendence of the Lokpal, instead of multiple loci of power – CVC for most matters, and Lokpal for matters related to cases referred by it. Government and many parties seem to be concerned about the dangers of a monolithic, unaccountable organisation running amok.

Perhaps one simple way of addressing the concerns of Parliament as well as civil society would be to make all members of CVC ex-officio members of the Lokpal. The CVC would remain as a separate entity with its mandate under CVC Act. But the chairman and members of the CVC would be ex-officio members of Lokpal, and they would be appointed and removed in the same manner as the Lokpal. The CVC and the Lokpal can thus be seamlessly integrated.

Bogey of federalism

That leaves us with the issue of states’ rights. Article 253 of the Constitution clearly gives Parliament the power to legislate in respect of state subjects for implementing international treaties and conventions. After ratification of UNCAC on May 1, 2011, Parliament has the obligation to make the law applicable to states.

The Bill provides for the same provisions for states as for the union. There is no discrimination. The Bill does not seek to transfer powers to the union government. Appointment of the Lokayukta and all other related matters are dealt within states. All procedural matters in relation to investigation and prosecution of anti-corruption cases are in any case under Parliament’s concurrent jurisdiction under items one and two of List III.

All incidental service matters will now come under Parliament’s concurrent jurisdiction under Article 253. Several laws have been made earlier in pursuance of international conventions – the laws on money laundering and human rights commission are prime examples. Laws like Right to Information Act and National Rural Employment Guarantee Act have been enacted applicable to states.

Precedents invoking Parliament’s jurisdiction clearly exist. All our procedural and criminal laws – CrPC, CPC, Evidence Act, IPC etc have been made by Parliament, and are applicable to states. None of them is seen as an encroachment of states’ rights.

In any case, in deference to the wishes of certain parties and in recognition of the need for compromise to obtain Parliamentary majority, The Bill has been amended in the Lok Sabha, providing for application of the law to states only with their prior consent. Given these circumstances, the argument that states’ rights are violated by making a law that would apply to only those states that consent to it is unsustainable.

A few suggestions

We have an impasse. What can be done to salvage the situation? The following two steps would be helpful.

First, government should be willing to strengthen the law in six respects – Suo motu powers to Lokpal /Lokyukta; creation of Lokpal’s own investigative agency; making CVC members ex-officio members of Lokpal; repeal of Sec 6A of Delhi Special Police Establishment Act, and repeal or amendments of Sec 19 of Prevention of Corruption Act and Section 197 of Cr PC; same provisions to apply to state ACBs as are contemplated, or already exist, in respect of CBI; and power to Lokayuktas to appoint required number of Local Ombudsmen or Lokadhikaris to deal with corruption in local authorities and at lower levels in each district, but under Lokayukta’s control.

These six provisions will create genuinely autonomous, effective, anti-corruption agencies, and strengthen the Ombudsmen. These measures would be in consonance with the present features of the Bill, and would not in any way weaken the architecture of the respective institutions.

Second, the Lokayukta provisions should remain in the statute; but the language of amended Section 1 could be made even more explicit to unambiguously declare that the Lokayukta and ACB provisions apply to states only after their prior legislative assent by form of a resolution. This is a retrogressive step, but necessary to get the regional parties on board to ensure that the Bill is not sacrificed on the altar of states’ rights.

The pending laws on service delivery and grievance redressal (citizen’s charters), whistleblowers’ protection, and judicial standards and accountability should be enacted along with the Lokpal law.

Bury the hatchet

If, for some reason, resolution of the issues on Lokpal and Lokayukta takes time, one way out would be for the Congress and the BJP to bury the hatchet and approve the Constitutional amendment in the first instance.

Some eminent jurists believe it may be worthwhile enacting the Constitutional amendment with bipartisan support outlining the general principles of independence and effectiveness, and making it mandatory for Lokpal and Lokayuktas to be established.

The finalising of details and hammering out an acceptable compromise need not hold up a mandatory institutional framework being incorporated in the Constitution. This will also address the issue of “rights of states” once and for all.

The failed Constitutional amendment Bill provides for the appropriate legislature making the laws governing the details of Lokpal / Lokayukta. This will address both the need for Constitutional mandate and the federal principle. There is no realistic reason why an acceptable legislation cannot be enacted soon, provided there is good will, mutual trust, and genuine resolve to confront corruption.

It is never too late to act. The last year has taught us valuable lessons. In the new year, we should apply these lessons, and act wisely and in concert to ensure creation of effective, independent, anti-corruption regimes and institutions across the country.

A former member of the National Advisory Council (NAC) and Administrative Reforms Commission, the writer quit the IAS in 1996 and runs an NGO, Lok Satta, which works for administrative and electoral reforms

OPED

‘Sluts’ in salwar kameez?
As long as gender-insensitivity prevails, would-be molesters will continue to disrobe women, both mentally and physically, no matter what they wear

When a senior police officer from Andhra Pradesh made a bizarre statement recently, that there was an increase in the number of rape cases because women in villages had begun to wear the salwar kameez — one was reminded of countless incidents where law officers have taken refuge behind similarly indefensible arguments.

Provocative? The police officer’s brazen statement that the salwar-kameez can provoke rapists has outraged people.

Mr Dinesh Reddy, DGP, Andhra Pradesh was quoted as saying "increase or decrease in rape cases could not be attributed to policing. Women in villages are turning fashionable, wearing salwar kameez, which tends to provoke men ."

Later, after having been slammed by the media as well as the Union Home Minister Mr P Chidambaram — he apparently changed his mind and said his statement had been misinterpreted. And then after that, shockingly, the matter seems to have been laid to rest. Obviously, this does not augur well -either for the women of Andhra Pradesh or for those elsewhere in the country because the issue is not just of a statement being made erroneously. There is a far deeper malaise. And obviously, whether one wears a salwar kameez or a bikini is irrelevant — but it gives officers like Mr Reddy a fig leave to dodge behind.

In fact, instead of only reprimanding him-and telling him that women were free to wear what they wanted — the Home Minister should have recommended that the DGP be removed from his post. And since it is a friendly Congress government in power in Andhra Pradesh — this could have been easily ensured.

While one is not surprised that this strange remark was made by a male officer -the astonishment is only because the top cop gave his frank opinion in the full knowledge that the force now has women officers, as well. How could these words give any sense of confidence or fair play to them?

This is a police force where the leader has a different set of standards for men and women. And would that not lead to sexual discrimination and harassment within a force, where the male officers are ostensibly still trapped in an eighteenth century world? Doesn't this mean that more care should be taken to appoint leaders who are modern and gender sensitive — as well as careful about working harder to deliver gender justice ?

Rapists blameless ?

Rapists will only be deterred if they are aware that they will be caught and punished. However, as long as the largely male police force is sympathetic towards them, and puts the onus on the victim -it will be difficult to turn the tide of rising crime against women.

It is a frightening scenario. Mr Reddy's words put the blame squarely on the victim, on her clothes, on her behaviour. In this world-view, the rapist is almost blameless -because he cannot help but be aroused by the sight of a woman in a salwar kameez… a salwar kameez ? Naturally this statement makes little sense in Punjab and possibly even my grandmother (were she alive) would be horrified at the officer's words.

The "salwar kameez" is hardly considered provocative, and in fact is supposed to be one of the most decorous garments in the Indian style pantheon. For many traditional and conventional families — it has been considered a very modest and safe alternative. Till of course Mr Reddy saw in it something that others had not thus far — and blew the lid. He thought he had damned it by calling it fashionable. I wonder what he thinks of the burkha ? Possibly he would imagine that it is also the height of fashion.

The reality is that for men who take recourse to this argument, no matter what the woman wears-she will be always responsible for the crime perpetrated upon her.

Rude & regressive

However, he is not the first cop to come up with a ridiculous reason for rising crime numbers. In fact the whole slut walk movement was initially put together to protest against a US cop who had blamed incidents of rape on the clothes that women wore . There were demonstrations all over the world by women who fiercely defended their right to freedom and to dress whichever way they want.

What Mr Reddy demonstrated with his "misinterpreted" remark was that Indian women still live in a patriarchal world — where police officers can make rude remarks about "village women" becoming "fashionable" -and not face any punishment.

The fact that this kind of regressive mind-set can lead to gender insensitivity -which in turn will lead to an increase in cases of gender injustice -is simply not understood well enough. Ironically, women require a good, egalitarian police force because it can ensure that FIRs are lodged, investigations are conducted and justice is delivered. But if statements like this are openly made, then obviously chances of fair play appear to be remote.

It is also interesting that Mr Reddy specially mentioned "village women". Perhaps, by omission he meant that urban women are already doomed and that village women are blindly following the trend — and thus they deserve being molested and raped.

While we make a huge fuss about all kinds of problems — why did we, the women of India, not take to the streets and defend our rights when Mr Reddy spoke his mind?

Perhaps at the very least, the government should have insisted that he apologise to us for his ill-expressed sentiments. But alas-he escaped with a rap on his knuckles.

And as long as this gender-insensitivity prevails, the would-be molesters out there in Andhra Pradesh and elsewhere, will continue to disrobe women mentally and physically, no matter what they wear.

PROFILE
The allergy healer
by Harihar Swarup

Medical schools in India do not recognise 'allergy' as a legitimate area of specialisaion. Even the World Health Organisation (WHO) acknowledged allergies to be a serious problem only recently. There are very few trained experts, who can diagnose the condition---although a quarter of India's population suffer from one allergy or the other, claims the Kolkata-born but Tokyo based Allergy Specialist Dr Ruby Panwankar.

Children are the worst sufferers because neither parents, nor doctors, take the symptoms seriously, although a study in South Asia has found that as many as 80 per cent of children in the age group of six to eleven years suffer from a poorer quality of life. Conditions like allergic rhinitis affect their sleep pattern, their learning and even their ability to play games and participate in leisure activities.

Why does the condition get aggravated when pollution levels rise in the city ? Dr. Ruby explains that atmosphere pollutants like sulphur dioxide, or nitrogen oxides are not allergens. But they enhance and amplify the severity of the disease in people who are already sensitive to a variety of allergens.

Dr Panwankar, a Professor at the Nippon Medical School in Tokyo, has just been elected the President of the World Allergy Organisation (WAO), the first woman to hold the position.

One in every 10 Indian children suffer from allergies and asthma, says she. But lack of information leads people to deal with the problem symptomatically. Even parents, she says, treat children for such allergies only up to a point, where they get some relief without understanding that it is a condition that ought to be taken seriously and treated.

Allergic conditions are often hereditary. And quite apart from allergies that affect the respiratory system, people also have food allergies and develop allergies to milk, eggs, shellfish, chickpeas, fruits and so on.

Watering eyes, non-stop sneezing and wheezing are symptoms, which are accepted as occupational hazard of urban living-but this condition-allergic rhinitis is now recognised as the precursor to the more serious problem of asthma-which is turning into a 21st century epidemic.

Born in an eminent Syrian Christian family of Calcutta, Dr Panwankar attended schools in Calcutta and Kerala, and graduated from the Armed Forces Medical College in Pune, and specialised on allergy at the Pune University.

There is no cure for allergies, she admits. But the new-generation drugs, she claims, help people manage allergic reactions better and lead a normal life. A few first-generation drugs, she warns, have severe side effects and it is necessary to go in for second and third generation drugs. She intends to set up in India an Asian Institute of Allergies.

On the record
Industry can help develop agriculture & irrigation
by Shahira Naim

U.K. Joshi

The Associated Chamber of Commerce and Industry of India (ASSOCHAM) recently released a 15 page document titled "ASSOCHAM Suggestions for Election Manifesto of Political Parties in Uttar Pradesh" , which contained a 15 point agenda for political parties to ensure double digit growth during the next decade. ASSOCHAM Director U.K. Joshi speaks of this 'first of its kind' exercise.

What prompted you to come out with such a document now?

Being an apex body of industry, it is our job to establish an interface between Industry and Government. Uttar Pradesh has tremendous potential but lacks the right kind of environment.We believe that political parties need to evolve a consensus on certain issues to achieve double digit growth in the coming years. This exercise was an effort to build the elusive consensus and that too in a transparent manner.

What would industry bodies like to be the thrust areas for the next government?

Considering nearly 80 per cent of the state's population is engaged in agricultural activities, the next state government must facilitate contract farming by attracting investment from the private sector. The private sector can also be roped in for promoting modern irrigational technology to boost productivity.

But then didn't the present government have to drop its plans for contract farming following protests?

Well, judging by our experience in Punjab, we can safely say that contract farming has worked beautifully for both the farmers and the industry. The farmer has an assured client for the produce and industry has guaranteed supply of raw material of the specific variety which they require.

To cite just two examples, we saw it working well in cotton production for the hosiery industry and for the tomato cultivators for the food processing industry.

How does the PPP model work in agriculture?

It can work in various ways. ASSOCHAM has suggested to the government for providing agriculture insurance schemes through the PPP model and to provide comprehensive insurance for agri-crops to the farmers involved in large scale farming, especially for sugar, pulses and paddy.

Private investment can be roped in for irrigation projects. They can bring in the latest technology at cost effective prices to ensure irrigation to farmers of the rain-fed regions still waiting for the government to initiate irrigation projects.

Providing industrial status to agro processing units could prove to be a cornerstone for fast track development of PPP in agriculture.

How do you see the PPP model in agriculture working?

Take the example of the sugar industry. UP is one of India's leading sugar and sugarcane producing state coming next to Maharashtra. It has tremendous potential to meet the exponential demand for sugar across the globe.

However, it requires investment in R & D to develop better quality sugarcane, plants to increase yield per acreage and disease resistant crops. Similarly, existing plant capacity needs improvement by introducing new technologies to enable optimisation of existing plant capacities.

Being a large and organised sector, industry does play a significant role in the state's development but has bright prospects to register itself as a huge player in the global sugar market.

The BSP has been speaking of the PPP model. Why did it not help?

These things don't happen on paper. The government has to build a positive environment which encourages industries. There was just no political will for this. Industrialists are apprehensive of the Mayawati regime, not knowing how it will react. Keeping a safe distance is deemed to be far safer.

Did any industrialist associated with you interact with the CM?

Here no one even seeks an appointment with the CM, knowing well that she does not meet people. Such people do not wish to go through intermediaries for fear of the message getting lost between the cup and the lip.

What is the experience elsewhere?

In Bihar, Captains of industry can pick up the phone and speak to the CM, the deputy CM or any senior official for that matter. They have accepted our suggestion for developing the cluster approach and are already doing so to promote banana and fox-nut cultivation.