Instead of seeking debate with public and in Parliament, govt chooses to pass laws first through ordinance
The real test of a government is its commitment to its very own people, the adivasis, minoritie, sexual or religious, women and dalits. Reference here is not to the politics of doling out that turns up election fever, but the ability to ensure a life of dignity, equality and just entitlement to nation's subalterns. The most controversial bill of this year the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Amendment Bill 2015, however, attempts to rob adivasis, small farmers and forest-dwellers of just that.
In one stroke it does away with first, the recognition of relationship of land with its people; second, the basic principle of allowing affected persons to give consent and have a say; and third, the requirement of 'social impact assessment' to fully understand the implications of land acquisition. Thus, it allows for redistribution of land from the poor to the non-poor in certain controversial projects including infrastructure (public-private partnerships) and industrial corridors (for which up to one kilometers on both sides can be acquired).
Most remarkable is the fact that instead of seeking a debate and discussion with the public and in the Parliament, the government chose to pass a law of this amplitude first through an ordinance. The NDA government has increasingly become impatient to pass its commercial objectives and has resorted to ordinances and money bills to push its agenda.
Citing the Constitution, the President has cautioned that ordinances are meant "to meet an extraordinary situation under extraordinary circumstances" and should not be a route taken for normal legislations. While economic reforms are the need of the hour, there should ideally be no circumvention in the parliamentary procedures to ensure due deliberation. At the same time, no expediency was shown by the government to appoint persons to the office of Chief Information Commissioner and other Information Commissioners since they last become vacant in August, 2014.
In this time, the pending backlog of Information Commission has increased by 47%, seriously undermining the objectives of people's Right to Information Act, 2005. Taking note, the Delhi High Court passed an order deputing the senior most information commissioner to function as Chief Information Commissioner, as only the latter can categorise the direct placement of matters before a particular bench under Section 12 (4) of the RTI Act, 2005. The Government has also indefinitely held off the implementation of the rules which increase tobacco pictorial warning size from 45% to 85%.
This government represents one of the lowest numbers of Muslims MPs since independence (22) with none from the ruling party in the Lok Sabha. Since the change of powers, we have seen an increase in religious tensions with love jihad', communal violence and reconversion campaigns. In midst of this, the newly elected BJP led Maharashtra government chose to introduce a beef ban under Maharashtra Animal Preservation (Amendment) Act, 1995 under which one can be prosecuted even for possession of beef and charged with jail term of five years and fine of Rs 10,000.
Though the NDA government delineates outdated constitutional objectives, the cultural impositions on dalits, adivasis and minorities cannot be denied. The turn in politics has also simmered trouble for Teesta Setalvad, who was the co-petitioner in the criminal trial which named 62 politicians and government officials (four of whom have been charge sheeted), including the present Prime Minister for their role in the Gujarat riots (2002). She and Javed Anand in turn, have been charged with breach of trust, cheating and criminal conspiracy in raising funds for the Gujarat riots memorial museum in Gul berg Society, Ahmedabad. While the legal matter remains sub-judice it is worth commenting that tightening rope around her since NDA came to power perhaps sniff of payback.
Meanwhile, the Gujarat government has had no qualms in reinstating the officers arrested in IshratJahan fake encounter case. The government has also decided to go after NGOs citing violations of Foreign Contribution Regulation Act (FCRA) while receiving foreign funds. Around 9,000 NGO licenses have been suspended and bank account frozen by Ministry of Home Affairs, including action against Ford Foundation and Greenpeace. According to the government, Greenpeace had been misusing funds to block development projects and its activities were thus labeled as being against 'national interest.'
The government even issued a lookout circular against Greenpeace activist Priya Pillai and offloaded her attheairport while she wason herway to London to brief the British parliamentarians on the rights of forest-dwelling communities affected by coal mining. The Delhi High Court subsequently quashed this circular stating that "criticism, by an individual, may not be palatable; even so, it cannot be muzzled. Many civil right activists believe that they have the right, as citizens, to bring to the notice of the state the incongruity in the developmental policies of the state. The state may not accept the views of the civil right activists, but that by itself, cannot be a good enough reason to do away with dissent."
Similarly, the underlying motivations of action against Ford Foundation is said to be its financial support to Sabrang Trust which had been active in Gujarat after the riots, seeking to advocate for the Muslim community. Needless to say, Government must be extremely cautious as to not throttle the vibrant civil society. While this government is suspicious of dissenting civil society, the public exchequer has no qualms in utilizing public funds on self promoting advertisements.
Meanwhile, the Gujarat government has had no qualms in reinstating the officers arrested in IshratJahan fake encounter case. The government has also decided to go after NGOs citing violations of Foreign Contribution Regulation Act (FCRA) while receiving foreign funds. Around 9,000 NGO licenses have been suspended and bank account frozen by Ministry of Home Affairs, including action against Ford Foundation and Greenpeace. According to the government, Greenpeace had been misusing funds to block development projects and its activities were thus labeled as being against 'national interest.'
The government even issued a lookout circular against Greenpeace activist Priya Pillai and offloaded her attheairport while she wason herway to London to brief the British parliamentarians on the rights of forest-dwelling communities affected by coal mining. The Delhi High Court subsequently quashed this circular stating that "criticism, by an individual, may not be palatable; even so, it cannot be muzzled. Many civil right activists believe that they have the right, as citizens, to bring to the notice of the state the incongruity in the developmental policies of the state. The state may not accept the views of the civil right activists, but that by itself, cannot be a good enough reason to do away with dissent."
Similarly, the underlying motivations of action against Ford Foundation is said to be its financial support to Sabrang Trust which had been active in Gujarat after the riots, seeking to advocate for the Muslim community. Needless to say, Government must be extremely cautious as to not throttle the vibrant civil society. While this government is suspicious of dissenting civil society, the public exchequer has no qualms in utilizing public funds on self promoting advertisements.
Common Cause v. Union of India was a petition filed in 2003 to curb this menace on which the judgment was pronounced in May, 2015 by the Supreme Court. It is questionable whether the limited judgment by the Court prohibiting pictures in public advertisement with exception of the Prime Minister, President and Chief Justice, will have the resultant effect, though the objectives are certainly laudable. The judiciary has limited say in this policy matter and has urged executive to take further notice.
However, it is noteworthy that the previous governments in power took no action to self- regulate even during the twelve year pendency of the suit. The travesty of lower castes, disabled and women can be depicted in the following three cases. First, in news was the book-burning of Tamil author Perumal Murugun's novel 'Mathorubagan' (One Part Women) by right wing members for objectionable caste and gender depictions. The Madras High Court is hearing various PIL petitions (now clubbed as one, on behalf of the author) that were filed challenging the decision of the peace committee meeting held by none other than the local police and revenue authorities in which the author was made to issue an unconditional apology, delete controversial portions and withdraw unsold copies from the market. The petitioners marked this as a "crude, unauthorized and state-sponsored censorship" impugning freedom of expression which forced the author to withdraw himself.
Second, the statement of Minister of State for Home Haribhai Parthibhai Chaudhary that came out in the Rajya Sabha: "It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors, including level of education, illiteracy, poverty, myriad social customs, and values, religious beliefs, mind-set of the society, to treat marriage as sacrosanct" brew a storm.
In 1993 the Declaration on the Elimination of Violence Against Women Convention had declared marital rape as a human rights violation, and even in the recent Justice Verma Committee Report (2013) the government was asked to reconsider the exception to marital rape under the Indian Penal Code. Despite the fact that majority of sexual violence occurs within the realm of marriage 6 no change in the government's position is expected soon.
The last case is that of Delhi University Professor and activist GN Saibaba against whom a charge sheet was filed by National Investigation Agency in Kerala court alleging links with CPI (Maoist)'s front organization RDFI. The most grotesque part of the case is that while none of the charges have been proved, the professor with 90% bench mark disability has been kept in solitary confinement and denied access to medical facilities, assistance and health care. Even the Supreme Court has turned a deaf ear and refused to admit a petition filed by Prof Kannabiran which stressed that the arrest and subsequent confinement of GN Saibaba goes against the UN Convention on the Rights of Person with Disabilities.
A year on, through efforts of Delhi University Teachers Association and activist Arundhati Roy, a Committee for the Defense and Release of GN Saibaba has been constituted to expedite his release on bail, and to ensure he is treated and tried in accordance with all legal and constitutional provisions. On the positive front, following the heels of the Supreme Court decision in NALSA v. UOI which legally recognized the third gender, for the first time in 46 years a private member's bill the Rights of Transgender Persons Bill, 2014 has been passed in the Rajya Sabha.
The Bill attempts to provide a rights based framework for transgender rights and ensures education, skill development and employment, health and social security benefits. It proposes the establishment of National and State Commissions for Transgender Persons and a Transgender Rights Court. While the Right of Persons with Disability Bill, 2014 and The Mental Health Care Bill, 2013, introduced by the previous government, had failed to address the concerns of the disabled, the recent Standing Committee Report under the Chairmanship of Ramesh Bais has incorporated nationwide deliberations and sought relevant amendments. The passing of The Schedule Castes and Schedule Tribes (Prevention of Atrocities) Amendment Bill, 2014 should also be in government's immediate agenda.
There have been two major developments with regards to child rights. Firstly, in the wake of involvement of a juvenile in 2012 Delhi gang rape case, and mass protests against his mere three year conviction, the Juvenile Justice (Care and Protection of Children) Bill, 2014 has been passed bythe LokSabha. The Bill permits juveniles aged 16-18 who have committed a heinous crime (according to the Juvenile Board) to be treated as adults. It is noted here that the legislature did not seek to enhance punishment from three to eight years, as was previously contemplated, and has allowed juveniles to be given life imprisonment. Secondly, the Child Labour Prohibition Amendment Bill, 2015 seeks to ban the employment of children in all kinds of commercial enterprises, as opposed to an existing ban in only 18 hazardous industries under the 1986 act.
The Bill provides for stringent punishment, including for parents who are repeat offenders and is in consonance with international child rights conventions. In June, 2014 there was a row over possible appointment of Ex- Solicitor General Gopal Subramaniam as a Supreme Court judge. The Constitutional 121st Amendment for the National Judicial Appointment Commission and the National Judicial Appointments Commission Act, 2014 has been enacted this year.
The appointment of judges which had been the prerogative of the five senior judges of the Supreme Court, is now set to change with the National Judicial Appointment Commission - which shall consist of the Chief Justice (Chairperson), two other senior judges, Union Minister of Law and Justice and two eminent persons (one of whom shall be of SC, ST, OBC or minority background) to be nominated by a committee consisting of the Chief Justice of India, Prime Minister and the Leader of Opposition.
One of the land mark judgments by the Supreme Court this year was Shreya Singhal v. Union of India where in view of Article 19 (a) and 19 (2), Section 66 A of the Information Technology Act was struck down as unconstitutional by the Supreme Court. The impugned section had been increasingly used to muzzle the voice of people with critical or divergent political views. In Vishwas Lochan Madan v. Union of India, a case of rape of a woman by her father-in-law in a Muslim community, a fatwa, sought by a third party was issued by local sharia court which mandated that the woman should separate from her husband.
The Supreme Court held that a decision by Dar-ul-Qaza has no sanction under the constitutional scheme. It acknowledged the presence of sharia courts under All India Muslim Personal law board as community's dispute resolution body but said that it is an informal system whose decisions are not binding. The Court also advised that fatwas should not be issued in response to strangers' petition. The courts also pronounced on two major scams this year- (a) the allocation of coal mines by the Screening Committee of the Government of India between 1993-2012 was struck down by the Supreme Court, while (b) in the Satyam Scam case, Ramalinga Raju and nine other accused have been convicted by the special CBI court for seven years rigorous imprisonment for manipulating company's accounts.
The row was over his alleged association with the Niira Radia and 2G Scam cases which raised objections over his possible appointment. He subsequently withdrew his candidature. J Jayalalithaa became the first standing Chief Minister of India to be held guilty of disproportionate assets under Section 13(1) and 13 (2) of the Prevention of Corruption Act, 1988 after conviction and four years simple imprisonment by the Special Court, but this was reversed in May, 2015 by the Karnataka High Court. The key issue here is verification and calculation of disproportionate assets, the final word on which would be by the Supreme Court. It is expected that a Supreme Court pronouncement on the matter will lay down a precedent for other cases of similar nature.
We all know the difficulties in obtaining bail for an accused in the present criminal system, therefore public outcry on the quick bails of Madhu Koda (coal scam), Salman Khan (hit and run case), DG Vanzara (prime accused in Sorabuddin, Tulsi Prajapathi and Israt Jahan encounter cases) and J Jayalalitha (disproportionate assets case) was well expected. In the area of planning and policy making, the Planning Commission of India has been replaced by the NITI Aayog.
Also, the Telecom Regulatory Authority of India (TRAI) had sought public view on its paper 'Consultation Paper No. 2/2015 on Regulatory Framework for Over-the-top (OTT) services/Internet Services and Net neutrality'. As of now, there are no laws governing net neutrality in India and the consultation was sought as debates over net neutrality had simmered shortly after Airtel's announcement on charging OTTs on its network. The government is also expected to lay down its new policy on education and intellectual property laws soon.
---
*Lawyer
However, it is noteworthy that the previous governments in power took no action to self- regulate even during the twelve year pendency of the suit. The travesty of lower castes, disabled and women can be depicted in the following three cases. First, in news was the book-burning of Tamil author Perumal Murugun's novel 'Mathorubagan' (One Part Women) by right wing members for objectionable caste and gender depictions. The Madras High Court is hearing various PIL petitions (now clubbed as one, on behalf of the author) that were filed challenging the decision of the peace committee meeting held by none other than the local police and revenue authorities in which the author was made to issue an unconditional apology, delete controversial portions and withdraw unsold copies from the market. The petitioners marked this as a "crude, unauthorized and state-sponsored censorship" impugning freedom of expression which forced the author to withdraw himself.
Second, the statement of Minister of State for Home Haribhai Parthibhai Chaudhary that came out in the Rajya Sabha: "It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors, including level of education, illiteracy, poverty, myriad social customs, and values, religious beliefs, mind-set of the society, to treat marriage as sacrosanct" brew a storm.
In 1993 the Declaration on the Elimination of Violence Against Women Convention had declared marital rape as a human rights violation, and even in the recent Justice Verma Committee Report (2013) the government was asked to reconsider the exception to marital rape under the Indian Penal Code. Despite the fact that majority of sexual violence occurs within the realm of marriage 6 no change in the government's position is expected soon.
The last case is that of Delhi University Professor and activist GN Saibaba against whom a charge sheet was filed by National Investigation Agency in Kerala court alleging links with CPI (Maoist)'s front organization RDFI. The most grotesque part of the case is that while none of the charges have been proved, the professor with 90% bench mark disability has been kept in solitary confinement and denied access to medical facilities, assistance and health care. Even the Supreme Court has turned a deaf ear and refused to admit a petition filed by Prof Kannabiran which stressed that the arrest and subsequent confinement of GN Saibaba goes against the UN Convention on the Rights of Person with Disabilities.
A year on, through efforts of Delhi University Teachers Association and activist Arundhati Roy, a Committee for the Defense and Release of GN Saibaba has been constituted to expedite his release on bail, and to ensure he is treated and tried in accordance with all legal and constitutional provisions. On the positive front, following the heels of the Supreme Court decision in NALSA v. UOI which legally recognized the third gender, for the first time in 46 years a private member's bill the Rights of Transgender Persons Bill, 2014 has been passed in the Rajya Sabha.
The Bill attempts to provide a rights based framework for transgender rights and ensures education, skill development and employment, health and social security benefits. It proposes the establishment of National and State Commissions for Transgender Persons and a Transgender Rights Court. While the Right of Persons with Disability Bill, 2014 and The Mental Health Care Bill, 2013, introduced by the previous government, had failed to address the concerns of the disabled, the recent Standing Committee Report under the Chairmanship of Ramesh Bais has incorporated nationwide deliberations and sought relevant amendments. The passing of The Schedule Castes and Schedule Tribes (Prevention of Atrocities) Amendment Bill, 2014 should also be in government's immediate agenda.
There have been two major developments with regards to child rights. Firstly, in the wake of involvement of a juvenile in 2012 Delhi gang rape case, and mass protests against his mere three year conviction, the Juvenile Justice (Care and Protection of Children) Bill, 2014 has been passed bythe LokSabha. The Bill permits juveniles aged 16-18 who have committed a heinous crime (according to the Juvenile Board) to be treated as adults. It is noted here that the legislature did not seek to enhance punishment from three to eight years, as was previously contemplated, and has allowed juveniles to be given life imprisonment. Secondly, the Child Labour Prohibition Amendment Bill, 2015 seeks to ban the employment of children in all kinds of commercial enterprises, as opposed to an existing ban in only 18 hazardous industries under the 1986 act.
The Bill provides for stringent punishment, including for parents who are repeat offenders and is in consonance with international child rights conventions. In June, 2014 there was a row over possible appointment of Ex- Solicitor General Gopal Subramaniam as a Supreme Court judge. The Constitutional 121st Amendment for the National Judicial Appointment Commission and the National Judicial Appointments Commission Act, 2014 has been enacted this year.
The appointment of judges which had been the prerogative of the five senior judges of the Supreme Court, is now set to change with the National Judicial Appointment Commission - which shall consist of the Chief Justice (Chairperson), two other senior judges, Union Minister of Law and Justice and two eminent persons (one of whom shall be of SC, ST, OBC or minority background) to be nominated by a committee consisting of the Chief Justice of India, Prime Minister and the Leader of Opposition.
One of the land mark judgments by the Supreme Court this year was Shreya Singhal v. Union of India where in view of Article 19 (a) and 19 (2), Section 66 A of the Information Technology Act was struck down as unconstitutional by the Supreme Court. The impugned section had been increasingly used to muzzle the voice of people with critical or divergent political views. In Vishwas Lochan Madan v. Union of India, a case of rape of a woman by her father-in-law in a Muslim community, a fatwa, sought by a third party was issued by local sharia court which mandated that the woman should separate from her husband.
The Supreme Court held that a decision by Dar-ul-Qaza has no sanction under the constitutional scheme. It acknowledged the presence of sharia courts under All India Muslim Personal law board as community's dispute resolution body but said that it is an informal system whose decisions are not binding. The Court also advised that fatwas should not be issued in response to strangers' petition. The courts also pronounced on two major scams this year- (a) the allocation of coal mines by the Screening Committee of the Government of India between 1993-2012 was struck down by the Supreme Court, while (b) in the Satyam Scam case, Ramalinga Raju and nine other accused have been convicted by the special CBI court for seven years rigorous imprisonment for manipulating company's accounts.
The row was over his alleged association with the Niira Radia and 2G Scam cases which raised objections over his possible appointment. He subsequently withdrew his candidature. J Jayalalithaa became the first standing Chief Minister of India to be held guilty of disproportionate assets under Section 13(1) and 13 (2) of the Prevention of Corruption Act, 1988 after conviction and four years simple imprisonment by the Special Court, but this was reversed in May, 2015 by the Karnataka High Court. The key issue here is verification and calculation of disproportionate assets, the final word on which would be by the Supreme Court. It is expected that a Supreme Court pronouncement on the matter will lay down a precedent for other cases of similar nature.
We all know the difficulties in obtaining bail for an accused in the present criminal system, therefore public outcry on the quick bails of Madhu Koda (coal scam), Salman Khan (hit and run case), DG Vanzara (prime accused in Sorabuddin, Tulsi Prajapathi and Israt Jahan encounter cases) and J Jayalalitha (disproportionate assets case) was well expected. In the area of planning and policy making, the Planning Commission of India has been replaced by the NITI Aayog.
Also, the Telecom Regulatory Authority of India (TRAI) had sought public view on its paper 'Consultation Paper No. 2/2015 on Regulatory Framework for Over-the-top (OTT) services/Internet Services and Net neutrality'. As of now, there are no laws governing net neutrality in India and the consultation was sought as debates over net neutrality had simmered shortly after Airtel's announcement on charging OTTs on its network. The government is also expected to lay down its new policy on education and intellectual property laws soon.
---
*Lawyer
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