Gujarat’s Snooping Saga: Is it the Tail of the Proverbial Elephant?

           

            As a rule, I am against discussing private affairs of individuals. I believe morality is not something that should be demanded from any person including our leaders. Morality can be explained, but not enforced. There are no universal values of morality, and most people have double standards when it comes to adherence to moral principles. Therefore, when issues involving morality and concerning politicians are out in the public domain, my first preference is to ignore it. 

            The current disclosures about a snooping carried out by elements of Gujarat Police against a young woman architect looks like an issue that involves morality.  If the bits and pieces of information coming into the public domain are to be believed, this issue involved a relationship that falls under some of the notions of an immoral relationship.   However, for the reasons already stated, let me treat this as a snooping saga, rather than as a stalking saga.

            This snooping scandal, however, has issues far more important than adherence to the notions of morality by a politician aspiring to be the Prime Minister of India. The transcripts of the recorded conversations (as published by Cobra Post) that form the basis of this issue show how the Anti-Terrorist Squad and Crime Branch personnel were misused by the political leadership of Gujarat State, to further their personal agenda. What these conversations suggest is too dangerous for a democratic society. 

            I heard people dismissing the entire issue as a conspiracy of Congress. While I do not dismiss the role of Congress and/ or CBI in making these recorded conversations available to the concerned journalists, it takes the kind of devotion displayed by devotees of Asaram, to dismiss the issue as a Congress conspiracy.  Congress could not have conspired to make Narendra Modi’s blue-eyed (then) Minister Amit Shah and his once blue-eyed IPS officer G.L. Singhal to enter into such a conversation and implicate their Saheb into something as bizarre as this incident.  Nor could have Congress persuaded an IPS Officer to hand over recorded conversations that implicate himself in too many illegal deeds, including coldblooded murders, also known as fake encounters (Apparently, it took the suicide of a teenage boy to make his father repentant of his crimes, and turn an approver).

            Mr. Singhal’s statement to CBI recorded on April 17, 2013 reads as follows: “In the latter half of 2009, when I was posted as SP (Operations) in the Anti-Terrorist Squad (ATS) at Ahmedabad, Shri Amit Shah had directed me several times to watch the movements of Shri Pradeep Sharma, who was then posted as Municipal Commissioner, Bhavnagar. He had also asked me to put a watch on a young woman named Madhuri (Pseudonym used by the websites to protect the identity of the lady concerned). I had deputed some men of the Crime Branch (as ATS was short of subordinate staff) to follow her, as directed by Shri Amit Shah”.  According to the reports on June 09, 2013 Mr. Singhal had handed over recordings to the CBI which was investigating the alleged fake encounter killing of Ishrat Jahan.  

            When read with the transcripts of the recorded conversations, above statement clearly shows that operation involved round the clock aggressive surveillance of two individuals- Pradeep Sharma, IAS and the lady referred to as Madhuri, as per the instructions from Saheb.  The transcripts of the conversations between Amit Shah and Singhal clearly indicate the extent of surveillance over the two individuals. Couple of samples from the transcripts will give the reader an idea about the nature of surveillance:

            ………..

            “Amit Shah: And where is the lady?

G.L.Singhal: She is sitting at Navrangpura near Have More.

Amit Shah:: With  that boy only ?

G.L.Singhal: Yes sir. With that boy

Amit Shah:: I want him in jail for as many days as Vanjara has been jailed for.

G.L.Singhal: Yes  yes.

Amit Shah: You be courageous and strong.

G.L.Singhal: Undoubtedly sir…

Amit Shah: No matter how big the person, put him in jail

G.L.Singhal: Right sir”

            …….

            “G.L.Singhal: We have deployed men at hotel as well, at both the places

Amit Shah: Is there only one door or any other than that ?

G.L.Singhal: There are two doors and men deployed at both the doors at the hotel as well

Amit Shah: They should not escape in closed car.

G.L.Singhal: We will come to know sir and in case they come out, we will be informed by our men deployed at the hotel”

…………

The websites, however, did not name the Saheb. It was BJP’s official spokespersons who confirmed the real identity of Saheb, with a letter from father of Ms. Madhuri (I will stick to Madhuri, though her real name is now in the public domain) to that effect.  Mr. Soni admitted that it was none other than the CM of Gujarat and PM candidate of BJP, Mr. Narendra Modi who ordered the snooping at his request.  However, he failed to convince about the kind of threat that called for this kind of aggressive surveillance.

            We have already read the statement of Singhal. We have not heard from Amit Shah, though he has access to press, 24x7. We also have not heard anything from Narendra Modi though he speaks at rallies almost every day, and on everything under the sun. All indications are that none of the parties is contesting the contents of the transcripts. Their only defense is that it is a conspiracy of Congress.

            In the meanwhile, there were reports coming out about a company named Ecolibrium Energy Private Limited that received a very favourable break, thanks to Gujarat government. This company is promoted by Soni family and, reportedly, their growth was not completely above board as they had no prior experience in their chosen field of operations (smart grids).  These favours were cited as the reason behind the letter from Mr. Soni, though the company maintains that they have not received any untoward benefits.

            Another parallel development was the affidavit filed by Mr. Pradeep Sharma, IAS in a writ petition filed by him before the Supreme Court of India. He alleged that the victimization he is facing at the hands of Gujarat government is a result of Mr. Modi’s suspicion that he may be having access to a certain CD that could be very damaging for Modi. According to him, Modi suspected that Mr. Sharma may have been privy to certain secrets through Madhuri.  The transcripts do corroborate this allegation of Mr. Sharma.

Now coming back to the main issue, irrespective of what the real reason behind the whole issue was, clearly there was a gross misuse of state machinery. At least two top officials of the relevant time have confirmed that there was no such surveillance and telephone tapping organized through legal measures. Unless Modi or Shah volunteers to share some convincing reasons such as Madhuri was an IM operative out to kill Modi, this action cannot be ‘justified’.  There were too many illegal acts committed under this episode.

We have to see this incidence in the light of certain other allegations against Modi and Shah. Shah is out on bail in the fake encounter case. There are many such cases at different stages of legal process, and Modi has never been clear of suspicion about his role in them. Even the efforts to prosecute Modi for his alleged acts and omissions during 2002 riots are still continuing. In all these cases, Modi has so far managed to convince a section of people that he was doing a favour by indulging in those activities, by demonizing the victims. It does not matter that even if the victims were demons as alleged by Modi and his supporters, Indian laws do not permit such illegal elimination. However, nationalism and religious sentiments were sufficient to keep up the show.

I am under no illusion that such activities are limited to Narendra Modi. I am sure there must be other CMs and leaders from all parties who have misused state machineries, to push their personal agenda. However, when you present yourself to the nation as a real alternative, you should prove it, not by words but deeds. As of now, Modi’s alleged deeds in this snooping saga cannot be whitewashed by the usual nationalist or secular-communal arguments.  

It is in this context that the case assumes importance. Modi has been smart enough to keep safe from the arms of law, in all the serious allegations, for want of proof. Here comes a case where the proof is presented even before the allegation is made. The matter is also before the Supreme Court, and soon the Court will have to take a position. No matter how long Modi remains silent, this issue refuses to die down.

Modi cannot even be sure who his real friends or enemies are. For example, Shiv Sena’s mouthpiece Saamna reported that Congress is working on a “Narendra Modi Sex CD”. Report says there are two actresses (one Tamil and one Panjabi) kept ready for the shoot, but failed to report who will act as Narendra Modi. Is this news really against Congress, or is it against Modi? I would think the latter since everyone will now keep talking about the impending release of a sex CD involving Modi.  Similar was the effect of some of the BJP arguments that drew parallel between this case and the sexual assault/harassment case involving Tarun Tejpal of Tehelka.

The tail of the proverbial elephant that managed to successfully pass through the hole is now stuck at the hole!  Will it manage to free its tail and go on to become the King?

PS: I admit my bias against Narendra Modi, and I believe the reasons are strong enough. However, I have tried my best to be objective in my thoughts.

Hartals against Kasturirangan Report on Western Ghats- Some Thoughts

Western Ghats is a mountain range that runs along the western side of India. Six states are blessed to be a part of this great treasure trove of biodiversity. “Western Ghats harbour many endemic species of flowering plants, endemic fishes, amphibians, reptiles, birds, mammals and invertebrates” (Notification dated 13 November 2013). UNESCO recognized this mountain range as a World Heritage Site and one of the eight ‘hottest spots’ of biological diversity. In order to protect this ecologically sensitive region.

The unchecked encroachment by human population and unbridled activities in the name of development have become a serious threat to the survival of Western Ghats. Human beings are a curse on this earth, with their attitude that they have some divine right to exploit and damage this earth, no matter how much it affects other flora and fauna or even the earth. We do not even know what is in the long-term interests of ourselves and our future generations. Let me not get into those aspects of human vs. nature debate here. Suffice to say, Government of India was forced to appoint a panel under the leadership of Prof. Madhav Gadgil. The report of this Western Ghats Ecology Expert Panel (WGEEP Report dated 31^st August 2011) was lauded by the environmentalists, but opposed by various other stakeholders including state governments as something that affects an unacceptably large number of people.

“The mandate of WGEEP was to demarcate ecologically sensitive zones and suggest measures to conserve, protect and rejuvenate the ecology of Western Ghats region. Taking into account the comments and suggestions made by different stakeholders including State Governments and Central Ministries on WGEEP Report, the MoEF constituted a High Level Working Group (HLWG) to suggest an all-round and holistic approach for sustainable and equitable development while keeping in focus the preservation and conservation of ecological systems in Western Ghats” (HLWG Report). In effect, the task of HLWG headed by Dr Kasturirangan was to water down the proposals of WGEEP in order to make it palatable to state governments and other stakeholders.

However, as usual, even this watered down report of the HLWG did not find favour with all sections of the society. These watered down recommendations also were opposed on the ground that it affects the lives and rights of people from those areas. The Ministry of Environment and Forest (MoEF) of Central Government did invite public comments on the report. The report was also forwarded to concerned state governments for their feedback. 

While this process in under progress, MoEF has gone ahead and accepted the report ‘in principle, and notified certain specific recommendations of the report in a draft form (possibly under pressure from the ongoing cases in the Supreme Court, on the issue). Whether it is WGEEP, HLWG, or any other report on the Western Ghats, they are not binding on the people of governments. They are mere recommendations to the concerned governments, even when the governments accept those reports.  Only when the concerned government passes a law or issues a notification under any of the existing laws, these recommendations attain legal validity and become enforceable against people.  Therefore, while people have all the right to discuss the validity or otherwise of the contents of the reports, they have no reason to be aggrieved against them so as to resort to non-democratic means like forced and violent bandhs disguised as hartals, or torching of government offices and public properties.

Let us not look at the Office Memorandum of the MoEF (OM dated 16 November 2013) which accepts certain selected points of the HLWG report. I quote from the OM:

            “The Ministry has accepted the HLWG Report ‘in principle’ subject to the following:

(i)     The definition of the extent of Western Ghats as demarcated by the HLWG is accepted.

(ii)    The Ecologically Sensitive Area (ESA) as identified and delineated by the HLWG is Western Ghats is accepted.

(iii)    The HLWG has identified approximately 37% of the Western Ghats as ecologically sensitive. The identified Ecologically Sensitive Area covers about 60,000 sq, km. of natural landscape of Western Ghats and represents a continuous band of natural vegetation extending over a horizontal distance of 1,500 km. The Ecologically Sensitive Area is spread across six states of Western Ghats region viz. Gujarat, Maharashtra, Goa, Karnataka, Kerala, and Tamil Nadu. The ESA also includes Protected Areas and World Heritage Sites of Western Ghats.

(iv)    The recommendations of the HLWG to completely ban mining, quarrying, and sand mining as also thermal power plants and Red category of industries in the Ecologically Sensitive Area are also accepted.

(v)     Hydro power being a relatively clean source of energy has been recommended to be allowed in the ESA by the HLWG subject to stringent conditions. This recommendation is accepted by the Ministry.

(vi)    Wind energy is permitted in the Ecologically Sensitive Area subject to applicable regulations.

(vii)   The following category of new and/or expansion projects/ activities shall be prohibited in the identified Ecologically Sensitive Area except those cases which have been received by EACs/ MoEF or SEACs/SEIAAs before the date of putting HLWG report on the website of eth Ministry, i.e., 17.4.2013 and which are pending with EACs/ MoEF or SEACs/SEIAAs. Such projects will be dealt under the guidelines and rules applicable at the time of application before the respective EACs/ MoEF or SEACs/SEIAAs.

(a)   Mining, quarrying and sand mining

(b)   Thermal power plants

(c)   Building and constructions projects of 20,000 sq. m. area and above

(d)   Township and area development projects with an area of 50 ha and above and/or with built up are of 1,50,000 sq. m and above

(e)   Red category industries

(viii)       Projects/activities which are not specifically prohibited under the ESA shall be scrutinized and assessed for cumulative impacts and development needs, before granting environment clearance.

(ix)            The Forest Right Act shall be observed in letter and spirit. The consent of the Gram Sabha for projects in ESA will be mandatory as recommended by the HLWG.” (Emphasis supplied)

From the above, it is clear that the ‘in principle’ acceptance of an already watered down report of HLWG is nothing but further relaxation to the bare minimum, to protect the existence of the Western Ghats. It is also very clear that the prohibitions instituted are in respect of such large level activities, and not the basic needs or the people residing there. In fact these prohibitions will only help the inhabitants of the area from the onslaught of mining, tourism resort, and real estate mafia. 20,000 sq. m construction of 1,50,000 sq. m township are not the concerns of local populations but if builders and big businesses.  Also, the mining and quarrying are not in the interest of the local farmers but the powerful mafia operating in the state.

There cannot be any dispute that the above activities can actually destroy the very existence of the Western Ghats.  Can we allow such a situation? Will it not kill our Monsoons and the ecology? Shall we compromise our very existence for the profit of certain individuals? The increasing number of quarries coming up throughout the Western Ghats region will only tell sensible people about the need to adopt urgent measures to protect the ecology. This is also critical for the survival of the predominant farmer communities from those very areas.

The Western Ghats and its inhabitants will also benefit from the proposed incentives for green growth in the area. To quote the OM,

“All the other major recommendations made by the HLWG particularly with respect to the  financial arrangements to incentivize green growth in Western Ghats, participation or and involvement of local communities in decision making, data monitoring systems especially the establishment of Decision Support and Monitoring Centre for Western Ghats are accepted”.

The OM also provides a mechanism for resolution of any grievances relating to declaration of ESAs. It states that “a draft notification declaring the identified region of the Western Ghats as an Ecologically sensitive Area along the lines accepted by the Ministry would be issued and put up on the website of the Ministry for input of the stakeholders”.  

A Notification was issued on 13 November 2013, prohibiting all the activities listed in Clause (viii) of the above OM with immediate effect. This Notification also contained a list of all ESAs identified by HLWG, as an Annexure. The areas “having high biological richness, low forest fragmentation, low population density and containing Protected Areas (PAs), World Heritage Sites (WHSs) and Tiger and Elephant corridors were identified as ESAs by the HLWG.  Even then if there are specific objections there is enough scope to successfully challenge the notification. This Notification is valid till further orders. The Minister of Environment and Forests has again clarified that the final notification on the report will be issued only after hearing the states and other stakeholders. Ministry has given 60 days tome for the stakeholders to respond to the draft notification.

Meanwhile, the hartals and violence occurred in Kerala against the implementation of the HLWG Report. Even the main opposition LDF decided to join the bandwagon of hartal against the implementation.  Unlike more stringent supporters of unbridled rights of the people to exploit Western Ghats, LDF and CPM were seen struggling to balance between the supporting the need to protect Western Ghats and limiting the Hartal against the manner in which the report was implemented. Leaaders of CPM are on record stating the need to implement the report “by taking the people into confidence” and the Leader of Opposition has even demanded implementation of WGEEP report.

As usual, this hartal also will not serve any useful purpose. Most people considered a Monday hartal as an extended weekend, and celebrated it. Only the daily wage earners lost their earnings.  Kerala Government has constituted a committee to interact with people and submit the final recommendations to the MoEF, by early January (as agreed between Govt of Kerala and MoEF). All the objections to the report and implementation could have been placed before this Committee. The Chief Minister had also called an all parties meeting to decide state’s response to be submitted to MoEF (which I understand LDF has boycotted). However, some parties seems to have lost faith in all negotiations and discussions, and consider hartals and violence as the only means of redressing grievances, which is not a good sign for the state.

Let me quote the HLWG report:  “HLWG recognizes that the proposed non-permissible activities may not be enough to fully manage the environmental fallout of development. However, it is also clear that management through prohibition and fiat is often detrimental to the interests of the very people and environment policy is aiming to protect. Therefore, we need a balanced and nuanced approach to say no to the most damaging and high impact activities and at the same time working of systems to incentivize environmentally sound development that benefits local livelihoods and economies”. At least, the mainstream parties and people must support the governments in this endeavor to implement the prohibition of ‘the most damaging and high impact activities” in the Western Ghats instead of resorting to hartals and other anti-people measures. Remember Western Ghats do not have any votes, and it is easier for the governments to shelve such measures for its protection!

Hartal is forcing a group’s will on the entire population, through threat of violence. Agitations against Kasturirangan Report is forcing our greed on the entire Western Ghats ecology! Neither will help us in the long run.

PS: I confess, I am not an expert on these reports or their impact. I am merely sharing my thoughts on the issues as I understand them, to keep the discussion on. Any views, for or against the implementation of report, or Notification, are most welcome.

Kerala CM’s Mass Contact Programmes: An Analysis

        When Mr. Oommen Chandy took over as the Chief Minister of Kerala on a wafer thin majority, lot of Keralites wondered whether he will be able to do anything for the people. Since he took over as CM in the year 2011, one thing he succeeded well is in his unprecedented Mass Contact Programmes which even received accolades from the United Nations Organization.  Mass Contact Programme (MCP) or 'Jana Samparka Paripadi' is a forum where the CM, along with officials from various departments and other ministers, meets the people to receive and find solutions for their grievances against the system.

In the latest Programme at Malappuram district alone, a total of 10,171 grievances were received, out of which 4217 were resolved at district officials’ level. 2609 applications were rejected on various grounds, and 394 reached for CM’s considerations and decision.  That apart, during the Programme, the CM directly received thousands of applications which were also resolved.

The current MCPs are the second round, after completion of a highly successful first round.  Even during the first round, the MCP received criticism from many sections of the intelligentsia and opposition.  While the opposition has political reasons to oppose the programme that gets the CM a lot of goodwill, intelligentsia has other reasons to oppose it.

CPI (M) led opposition has been demanding the CM’s resignation for his alleged role in the infamous solar scam.  Their agitations against the CM have been going on for some time now. Each agitation got replaced by yet another agitation when the former failed to achieve its objectives or popular support. It even reached the level of physical attacks and stones throwing against the CM, at Kannur. Attempts through violence and blockade to remove an elected Chief Minister who is continuing to enjoy majority support in the Legislative Assembly, is not part of the democratic process or spirit. However, that is not the subject matter of this post.

Latest in the series of these agitations is the attempts to block the CM’s entry into the venues of his Mass Contact Programmes. So far, three such programmes were conducted successfully, without much hindrance since these agitations were announced. Apparently, even LDF is scared of preventing these programmes that are beneficial to a large number of people from the poorer sections of the society. Even after repeated failures to prevent these programmes, the opposition continues to boycott the same. As the famous Malayalam saying goes, these mass contact programmes have become something that is’ too bitter to eat and too sweet to spit’! However, due to these agitations, each MCP becomes a matter of concern and subject to unprecedented security arrangements.

Leaving the political opposition aside, I shall now attempt to record some of the objections from the intellectuals and my responses thereto, in the following paragraphs.

One of the most heard criticism is that the CM is doing the job of a Village Officer. Even if we agree that it is true, can we deny that there is a need for the CM to do a Village Officer’s job, if the Village Officer fails to do that? Where does the buck stop? If there was no such need, we would not have found 1000s of applicants belonging to all sections of society and different political hues, thronging these Programmes to get their grievances addressed. There is no point in burying heads in the sand and stating that there is no need for such programmes, to help the needy.

Of course, for the intelligentsia who belongs mostly to the affluent sections, these problems are not critical to warrant the CM’s personal intervention. However, for the poor people, it provides a great opportunity to get their issues resolved.

There are two reasons why the CM has to work like a Village Officer, to make things happen. One reason is the apathy of officials towards the problems of the common man. For various reasons including expectations of bribes, many officials refuse to do what is their duty. The second reason is the legal impediments in helping the needy. A Village Officer can only act within the set rules or refer the matter to the higher-ups for decision. However, by the time a decision is obtained in such matters, it is generally too late. MCPs provide a venue for the officers at various levels to get together and resolve all such issues. The presence of the CM and other ministers helps in expediting policy decisions, where necessary.

Another criticism is that the CM is acting like a King and distributing taxpayers’ money as if it is from his own pocket. Well, even a CM is answerable for any money spent from the government’s treasury. All the financial aids provided to the people during the MCPs are well within the rules. Just that in many cases these aids do not reach the needy due to red tapes and other inefficiencies in the system. The CM’s intervention through MCPs only helps in overcoming these delays.

Yet another criticism is that a CM’s job must be to reform and improve the governance so that there is no need for such programmes. There is some merit in this criticism.  A CM cannot resolve all the issues of people through his direct intervention. The systems must improve, and bottlenecks must be removed. However, MCPs are addressing this need, as well. To quote the CM’s own words, spoken at the Programme at Malappuram district:

“The importance of these Mass Contact Programmes is not in distributing financial aid to some of the needy people. These Programmes reveal the legal impediments at governmental level, in serving the people. The importance is in being able to make reforms in governance procedures based on this learning.  As a result of the last round of Programmes, 45 such orders were issued, out of which 43 were collated and published as a book.”

These words show that the MCP is not just a money distribution scheme. It connects the government with common people, helps in understanding the impediments in serving people, and finds solutions for addressing their problems. It also makes the officials accountable for their actions and inactions. They have to explain why a decision is taken or not taken on an application submitted by a citizen.

        Mr. Chandy is already on record that this government will implement the Right to Services Act that prescribes mandatory time limits for officials to act on an application. Hopefully, reforms such as Right to Information Act and Right to Services Act will reduce the need for such Mass Contact Programmes. In the meanwhile, it is a noble effort from the CM to provide succor to the poor people.

          Sometimes, it is said that MCPs are nothing but cheap tactics for garnering votes. Well, votes are fundamental to electoral politics, and there is nothing cheap or wrong in a current government having votes also as a motive behind their actions. This tactics was available all governments in the past, and is still available to other state governments. Why is it that they all failed where Mr. Chandy succeeded? Also,  in a country like India where CMs are accused of organizing pogroms and riots to garner votes, finding fault with welfare programmes like MCPs as cheap tactics for getting votes, is rather difficult to digest.

         To conclude, there is not one government or governance system in the world that has achieved perfection. The reforms and improvements in the system is an ongoing effort. There will always be unforeseen problems and unsolved grievances of people. It is the duty of a government to ensure that there are suitable forums for these grievances to be addressed. At the same time, government must make policy changes to enable the system to address such issues when repeated in the future. To quote Mr. Chandy again, “the soul of Mass Contact Programmes is in providing the confidence to people that they have a forum where they can raise their grievances and find solutions”. Such a confidence is indeed, critical for the wellbeing of any democracy.

Note: This post is based on various news reports and Twitter debates on the subject.

Ordinance on Convicted Representatives: My Take on Rahul Gandhi's Statement

It is not often that the members of Congress party’s first family interact with media. Media also has accepted that it is perfectly fine. One does not hear ‘Nation wants to know’ type questions thrown at Gandhi family members. If and when they interact, it is with so much preparation and so selectively done.

Therefore, it came as a surprise when media reported that, today, Rahul Gandhi walked into an official Press briefing of AICC and made some suo moto comments on the Draft Ordinance on protecting membership of convicted representatives. Nobody in the Media would have expected him to come out and make a strong statement against his Party’s own government. He said, "My personal opinion about the ordinance on lawmakers is that it is complete nonsense, it should be torn and thrown away. I personally think that whatever the government is doing on this ordinance is wrong” (as reported by http://indiatoday.intoday.in)

Well, my personal opinion perfectly matches Rahul’s version. However, there is a difference. I am an individual with an opinion on so many things, but they are personal and accountable to no one. Rahul Gandhi is the Vice President of the Party that heads the Government and the cabinet that approved the Draft Ordinance in question. He is also the heir apparent and future Prime Minister, if we go by the words of even the present PM. More importantly, he represents the first family of Congress that holds the exclusive right, to the last word in Congress.

Expectedly, what followed was Ajay Maken’s official statement that said, "Rahul Gandhi has put forth his views on the ordinance. Rahul Gandhi's position on the ordinance is the Congress' position. Rahul has taken this step on high moral and principle ground.” It should have been known to Rahul that when he speaks, it becomes official version of the Congress Party.

That leaves his party’s Prime Minister and the Cabinet that that approved the draft resolution with a lot of rotten egg on their face. That too when Prime Minister is on a foreign tour, meeting and interacting with world leaders. The statement also leaves Rahul Gandhi himself looking immature and unpolished. There was no need for such a brazen behavior. There was a much better way to do this.

The President of India has sought clarifications on the Ordinance from the concerned ministers. The President’s refusal to sign should have been taken as an indication and Rahul Gandhi could have given a statement, as follows:

Congress Party has taken note that the President of India has expressed some concerns and sought some clarifications on the Ordinance. We have also received feedback, expressing outrage on the proposed Ordinance, from the public and party workers. While the Ordinance was brought with a limited purpose, to bring a clause passed by our own Parliament and subsequently held unconstitutional by the Supreme Court, back into force as we in the Party and Government considered it the right thing to do. However, considering the outrage from various quarters, Congress Party and I personally, request the Prime Minister and Cabinet to reconsider the draft of the Ordinance. We believe, in a democracy the public opinion must be given utmost importance and, therefore, I am sure PM and Cabinet will be happy to reconsider the Ordinance.

We also realize that while it may be unfair to the persons who are convicted but the conviction is stayed by the court of appeal, to unseat them before appeal if decided, such an Ordinance will be seen as endorsement of criminals in politics. Even such a perception will not be in the interest of our democracy. “If you want to fight corruption in the country whether it is Congress party or BJP, we cannot continue making these small compromises. Because if we make these small compromises, then we compromise everywhere”.

But alas…it was not to be! A thing that could have been done with utmost finesse and élan was reduced to such an unacceptable level. In public life, especially when you are being projected as the future Prime Minister of this country, not just what you say, but how you say it also assumes lot of importance.  

Hibiscus Collection from Ambadi

A collection of Hibiscus Flowers from our Garden at Ambadi...

 

 

                                                               
                                                                 With due apologies for the poor quality of pictures!

Disqualification of Jailed Persons from Contesting Elections: A Case of Judicial Overreach?

            When I read the news reports about Supreme Court of India passing an Order that prevents persons in police custody from contesting elections, even if they are not convicted of any crime yet, I could not believe my ears. This disbelief and shock was not a result of any sympathy towards criminal politicians. It shocked me for it went against the ideas of principles of natural justice and the law as I understood it. I was also concerned about the fall out of such a decision, on our electoral politics and democracy. 

            When I reacted on Twitter about this news, I used a caveat “IF this news is true’ for I still hoped that it was a case of misreporting. However, all my hope was in vain. When I finally read the Order in Civil Appeal Nos. 3040-3041 of 2004, issues by a Bench of J. A K Patnaik and J. Sudhansu Jyoti Mukhopadhaya, dated July 10, 2013, news reports were proved right, and my faith in the wisdom of our highest Court, wrong.  An Order containing just 884 words, has indeed caused a situation that can turn dangerous for our democracy. Court was dealing with a decision that can have serious implications for our democracy, which is one of the basic features of our Constitution, yet the Order is not a speaking order when it came to the most important part of it. I say this with lot of pain as I have tremendous respect for the apex Court of this country. Let me explain.

In this Appeal, the Supreme Court upheld an earlier order of Patna High Court. The gist of the Order is that a person who has lost the right to vote in election is not an ‘elector’, and, therefore, can neither vote, nor contest in an election.

            The Supreme Court Order supports the above finding on the basis of a reading of the Representation of the People Act, 1950 and the Representation of the People Act, 1951, as follows:

(1)       According to Section 4 and 5 or of the 1951 Act, for membership of Loksabha and state legislative assemblies respectively, a person must be an ‘elector’.  

(2)      The term ‘elector’ is defined in the 1951 Act as “a person whose name is entered in electoral rolls of the constituency for the time being in force and who is not subject to any of the disqualifications mentioned in Section 16 of the 1950 Act”.

(3)       “Section 16(1)(c) of the 1950 Act provides that a person shall be disqualified for registration in an electoral roll if he is for the time being disqualified from voting under the provisions of any law relating to corrupt practices and other offences in connection with elections”.  

(4)       Section 62 of the 1951 Act is titled "Right to vote" and it provides in sub- section (5) that no person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police.

Problem is that the Order does not state how Section 62 that deals with “Right to vote” affects either the definition of ‘elector’, or Section 4 or 5 of the 1951 Act, dealing with qualification for contesting elections. The Supreme Court was clearly reading an independent section that deals with Right to vote into another independent clause that defines ‘elector’, to deny those people in police custody their legitimate right to contest elections. It is also unfortunate that the Court did not find it necessary to explain the logic or principles of interpretation behind this combined reading of two independent provisions. That, in my humble opinion, is not only bad in law, but also a sure case of judicial overreach.

There are two rights involved in an election. First is the right to vote, and the second is right to contest. Laws passed by the Parliament are very clear in its intention to keep the two rights different.  Let us elaborate the laws further.

Right to Vote: Section 62 of the 1951 Acts deals with the Right to vote in elections: This relevant provisions of the section reads as follows:

62. Right to vote.—

(1)       No person who is not, and except as expressly provided by this Act, every person who is, for the time being entered in the electoral roll of by any constituency shall be entitled to vote in that constituency.

(2)       No person shall vote at an election in any constituency if he is subject to any of the disqualifications referred to in section 16 of the Representation of the People Act, 1950 (43 of 1950).

(5)       No person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police:

Provided that nothing in this sub-section shall apply to a person subjected to preventive detention under any law for the time being in force.

A reading of the above sub-sections clearly shows the intention of the Parliament in passing the law. It is to disqualify person from voting if (i) the person is not on the electoral rolls, (ii) the person is suffering from any disqualification under Section 16 of the 1950 Act, or (iii) the person is confined in a prison, under whatever circumstances other than a preventive detention.

            Right to Contest Elections: Law is silent about the right to contest elections. It only prescribes qualifications and disqualifications for becoming a member of Parliament or Legislative Assemblies.  Barring certain special clauses that deals with reserved constituencies, the relevant clauses from 1951 Act, on qualifications are as follows:

4.     Qualifications for membership of the House of the People- A person shall not be qualified to be chosen to fill a seat in the House of the People, unless—

(d) in the case of any other seat, he is an elector for any Parliamentary constituency

5.    Qualifications for membership of a Legislative Assembly.—A person shall not be qualified to be chosen to fill a seat in the Legislative Assembly of a State unless—  

(c) in the case of any other seat, he is an elector for any Assembly constituency in that State

So the essential qualification in both cases is the necessity of being an ‘elector’ within the respective jurisdiction.

            Before we consider the disqualifications, let us look at this key term ‘elector’ as defined in 1951 Act:  

            2. Interpretation.—(1) In this Act, unless the context otherwise requires,—

(e) "elector" in relation to a constituency means a person whose name is entered in the electoral roll of that constituency for the time being in force and who is not subject to any of the disqualifications mentioned in section 16 of the Representation of the People Act, 1950 (43 of 1950).

The highlighted portions clearly indicates that the only conditions to be met, to become an elector are- name in the electoral roll, and no disqualification under section 16 of 1950 Act. Please note, there is no reference to Section 62 or right to vote.

That takes us to Section 16 and 19 of the 1950 Act, which read as follows:

19. Conditions of registration- Subject to the foregoing provisions of this Part, every person who —

(a) is not less than eighteen years of age on the qualifying date, and

(b) is ordinarily resident in a constituency,

shall be entitled to be registered in the electoral roll for that constituency

           

16. Disqualifications for registration in an electoral roll.—

(1)       A person shall be disqualified for registration in an electoral roll if he—

(a) is not a citizen of India; or

(b) is of unsound mind and stands so declared by a competent court; or

(c) is for the time being disqualified from voting under the provisions of any law relating to corrupt practices and other offences in connection with elections.

(2)       The name of any person who becomes so disqualified after registration shall forthwith be struck off the electoral roll in which it is included:

Provided that the name of any person struck off the electoral roll of a constituency by reason of a disqualification under clause (c) of sub-section (1) shall forthwith be re-instated in that roll if such disqualification is, during the period such roll is in force, removed under any law authorising such removal.

A plain reading of the above provisions shows that the Parliament had considered disqualifying from the electoral rolls, those who are disqualified from voting, and in its wisdom (and rightly so), decided to restrict such disqualifications to only two cases mentioned in Section 16 (1) (c):

(i)                under the provisions of any law relating to corrupt practices

(ii)             other offences in connection with elections

It may also be noted that the Parliament had expressly included additional disqualifications for membership of Parliament and State Legislatures under Sections 8 to 10A of Chapter III of 1951 Act.

Clearly, Parliament did not consider it necessary or prudent to apply Section 62 disqualifications on right to vote, to Section 16 disqualifications on right to registration in electoral rolls. It cannot even be said that Parliament omitted to consider it, since they have though it fit to add two specific disqualifications mentioned under Section 16 (2) (c), apart from those disqualifications under Chapter III.

            The above provisions clearly establish that reading of Section 62 with Section 4 or 5, and section 2 (e) of the Act is not valid under any principles of interpretation.  In fact, Parliament wanted clause 2 (e) to be read with Section 62, and not the other way round as Section 62 (1) incorporates being an ‘elector’ as a necessary condition for getting the right to vote. Hence, the right to vote and right to contest elections are two distinct rights, with different implications.  However, Supreme Court chose to incorporate Section 62 into the definition of ‘elector’, without giving the logic behind doing so.

Therefore, a reading of law, “a person, who is confined in prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police is …. not an "elector" and is, therefore, not qualified to contest elections to the House of People or the Legislative Assembly of a State because of the provisions in Sections 4 and 5 of the 1951” has no sanction in statute.

            If the Supreme Court wanted to make a new law to this effect, it should have clearly said so. It cannot use the power to make laws based on a wrong reading of express provisions in a statue.

            Before concluding, let me state why this Order can be dangerous to our democracy. We have a multiparty system under which we have seen many a maverick leaders assuming power. Every State Govt, the Central Govt, Police officers and Judges- all have the power to get someone in police custody on some cooked up charges, at least for some time.  Bogus criminal cases against political opponents are as common as criminal politicians, in our country. If a government, or any of the other powers mentioned above wants to ensure that a particular leader or party is to be defeated in elections, they only have to ensure police custody of the concerned person or persons, for a short period when election process is on. By the time the person manages to get free from the police custody, it might be too late, and people might be cheated out of the democratic right of electing their choices. Think of the election that took place just after the emergency when lot of opposition leaders were still in jail.  

            Another problems with this Order is in the presumption of guilt and criminality even before the persons are charged by a court. Principle of natural justice that declares a person innocent until proven guilty is given a burial, for no reason. Until now, political challengers had the protection of courts and law of the land when those in power misuse their position to stop the former. Now, they have lost that protection, at the very hands of the protector of last resort!

            If political challengers are not given a level playing field and are left at the mercy of those in power, democracy will be in danger. Those who are opposed to ruling regime will be in police custody, elections reduced to a farce, and people left with no option other than that we are now witnessing in countries like Egypt and Syria. When we make a law, we must also consider its potential misuses, especially those with grave consequences. Therefore, with all due respect, I still hope the Supreme Court will realize the folly, and the danger, and review this Order in the larger interest of Democracy, Rule of Law, and Natural justice.

P.S: This post is prepared I good faith, and out of my own concerns and respect for Democracy, Rule of Law, and Natural justice. There is no intention whatsoever, to disrespect the judiciary. I will be happy to receive corrections, if any, on the letter or spirit of the Order or concerned provisions of law.