The Rajya Sabha shows the way in the manner in which it handled the Prevention of Torture Bill, 2010.It is true that some of our Parliamentarians are indeed opportunist, corrupt and lazy. However, such notions are selective. The Rajya Sabha committee's work deserves commendation. Indeed, the formula stipulated by the committee should not be restricted to torture alone, writes Tarunabh Khaitan in The Hindu.
We like to berate our parliamentarians. It is true that some of them are indeed opportunist, corrupt and lazy. But it is also true that the media would selectively broadcast scenes of pandemonium in legislatures but often fail to report serious and sincere work done by parliamentarians. Who can then blame the politicians for thinking that there is no reward for hard work, and that the only way to attract attention is to turn up the vole?
...
The journey of the much reviled Prevention of Torture Bill, 2010, in the Rajya Sabha so far is a good example of how legislators ought to perform their law-making function, and therefore deserves credit. The Bill, ostensibly designed to criminalise acts of torture by public servants, was rightly condemned as a fig-leaf, the real purpose of which was to ensure that public servants could resort to torture with impunity. Among its many defects was the impunity provision contained in Clause 6 of the Bill, which required that no court could proceed with a complaint of torture unless the government of the day permits the prosecution of the suspect public servant.
This clause duplicated a colonial-era provision that is now recited unfailingly in most of our criminal statutes: from Section 197 of the Code of Criminal Procedure, 1973 to Section 19 of the Prevention of Corruption Act, 1988.
...
The government managed to use its numbers to get the Prevention of Torture Bill passed in the Lok Sabha after a brief, late-evening debate last year. By the time the Bill reached the Rajya Sabha, however, civil society had had a chance to examine its deplorable provisions. At least some Rajya Sabha MPs listened, and were convinced that the provisions of the Bill needed to be scrutinised more closely. The government wisely conceded their demand and a Select Committee was set up under the chairpersonship of Ashwani Kumar.
...
Adopting a sagacious approach to the problem of prior sanction requirements, the committee recognised the need to “insulate honest public servants from false, frivolous, vexatious and malicious prosecution.” At the same time, it felt that such a provision should not be used to shield those officials who have, in fact, “intentionally tortured or abetted the torture of individuals.” Thus, the committee captured the classic dilemma in prosecuting public servants — we want them to discharge their duties without fear and favour, but want to ensure that they are accountable for what they do (or fail to do). Impunity provisions such as Clause 6 of the original Torture Bill, or Section 197 of the Code of Criminal Procedure, only take into account the need to shield public servants. They give no consideration to the need to ensure accountability. Instead of finding a proportional solution that adequately caters to both concerns, it completely ignores the second.
...
First, while retaining the general requirement of prior governmental sanction for prosecution of public servants, the committee recommends the inclusion of a deeming provision: if the government has not acted on a request for sanction for three months, sanction would be deemed to have been given. This will ensure that a government cannot frustrate prosecution by simply refusing to act on a request for sanction.
Second, the committee recommends that should the government refuse to sanction prosecution, it must record its reasons in writing. Under the current practice, the government has no obligation to justify publicly why it has refused to sanction the prosecution of any public servant. This opacity allows the government to use the power of sanction to settle political scores rather than to ensure accountability.
Third, and perhaps most importantly, the committee recommends that an order refusing such sanction may be appealed before a High Court by an aggrieved person. Currently, a person can only file for a judicial review of a decision to refuse sanction; there is no right to appeal. The difference between an appeal and a review is significant. The powers of a review court to correct a decision are much more limited than that of an appellate court. A review court mainly ensures that certain technical rules of decision-making were followed, and that the decision was not so unreasonable that no reasonable person could have made it. An appellate court, on the other hand, can examine the issue on merits and substitute its own judgment for that of the government. In sum, the possibility that its decision may be appealed will require the government to act on judicial rather than on political grounds while granting or refusing sanction.
Tuesday, February 8, 2011
Monday, February 7, 2011
Parliament is a difficult place: Proposal for reforms
When we Indians decry the state of our Parliament, we mostly focus on the symptoms, not the underlying causes. The undesirability of disruptions and the repeated adjournments of Parliament are obvious. It is important to shift the discussion to the root causes and possible solutions if we are to see any improvements. The first category of disruptions, involving smaller groups of MPs, will require implementing decisions that have already been taken as well as introducing certain modifications to parliamentary procedures. The second category of disruption, when large groups of MPs block parliamentary proceedings, requires deeper reform of parliament, writes Baijayant ‘Jay’ Panda in The Indian Express.
Members of the House routinely “pulled knives and guns on one another. There were shoving matches and canings, tables were flipped, inkwells and spittoons went flying.”
No, that’s not a description of India’s Parliament. Rather, it’s from an article by Joanne Freeman, an American professor of history at Yale University, describing typical behaviour in the United States Congress in the mid-nineteenth century.
...
When we Indians decry the state of our Parliament, we mostly focus on the symptoms, not the underlying causes. The undesirability of disruptions and the repeated adjournments of Parliament are obvious and have been done to death. It is important to shift the discussion to the root causes and possible solutions if we are to see any improvements.
What changed in America? By the second half of the 19th century, the Industrial Revolution kicked in and transformed the US. From a country where the vast majority of the population made its living from agriculture, it went on to become the most developed economy in the world. This process was not always smooth. Neither was it uniformly “inclusive”, to use the buzzword of the decade here in India. The US had its share of labour exploitation and disproportionately wealthy robber barons. But the process did reach a point where the majority of the population described themselves as middle class.
...
It is our burgeoning middle class that is most dismayed by the sub-optimal functioning of Parliament. While the growth of our middle class will gradually build pressure on legislators to adhere to better standards of public behaviour, there are specific steps that need to be taken in the meantime. To do that, it is important to understand the nature of parliamentary disruptions and deadlocks, most of which can be classified under two categories. First, many disruptions are caused by small groups of MPs who are usually grandstanding for audiences back home. The second category are deadlocks that involve large groups of MPs, sometimes even the entire opposition, as in the present dispute over whether to appoint a joint parliamentary committee on the 2G spectrum scandal.
The first category of disruptions, involving smaller groups of MPs, will require implementing decisions that have already been taken as well as introducing certain modifications to parliamentary procedures. Resolutions passed by successive presiding officers of both Houses of Parliament — that is, speakers and vice presidents— and leaders of parliamentary parties, provide the moral authority for presiding officers to have disrupters physically removed for a day or even more (the legal authority has always existed).
... ...
The second category of disruption, when large groups of MPs block parliamentary proceedings, requires deeper reform of parliament. Take the current JPC imbroglio. The opposition’s stubbornness can be summed up in the argument, “If the largest ever allegation of malfeasance in the country’s history does not justify a JPC, then what does?” The government’s obduracy lies in the stand that “Parliamentary rules provide for JPCs to be set up by consensus. The opposition is trying to bulldoze the majority opinion. If they don’t agree with our stand, let them move a vote of no confidence.”
...
Again a lesson can be taken from the US experience, where the Senate requires not a 51 per cent but a 60 per cent vote for the majority to override a filibuster, by which a member of the minority side can hold up legislation by speaking for an unlimited time. Our Parliament needs similar rule-based, not consensus, options where a significant minority — say 40 per cent as in the US Senate — should be able to press their point short of a no-confidence motion. This would take away the government of the day’s ability to dodge certain motions, or the formations of special committees like a JPC, and the country would no longer be held hostage to consensus between government and opposition.
Members of the House routinely “pulled knives and guns on one another. There were shoving matches and canings, tables were flipped, inkwells and spittoons went flying.”
No, that’s not a description of India’s Parliament. Rather, it’s from an article by Joanne Freeman, an American professor of history at Yale University, describing typical behaviour in the United States Congress in the mid-nineteenth century.
...
When we Indians decry the state of our Parliament, we mostly focus on the symptoms, not the underlying causes. The undesirability of disruptions and the repeated adjournments of Parliament are obvious and have been done to death. It is important to shift the discussion to the root causes and possible solutions if we are to see any improvements.
What changed in America? By the second half of the 19th century, the Industrial Revolution kicked in and transformed the US. From a country where the vast majority of the population made its living from agriculture, it went on to become the most developed economy in the world. This process was not always smooth. Neither was it uniformly “inclusive”, to use the buzzword of the decade here in India. The US had its share of labour exploitation and disproportionately wealthy robber barons. But the process did reach a point where the majority of the population described themselves as middle class.
...
It is our burgeoning middle class that is most dismayed by the sub-optimal functioning of Parliament. While the growth of our middle class will gradually build pressure on legislators to adhere to better standards of public behaviour, there are specific steps that need to be taken in the meantime. To do that, it is important to understand the nature of parliamentary disruptions and deadlocks, most of which can be classified under two categories. First, many disruptions are caused by small groups of MPs who are usually grandstanding for audiences back home. The second category are deadlocks that involve large groups of MPs, sometimes even the entire opposition, as in the present dispute over whether to appoint a joint parliamentary committee on the 2G spectrum scandal.
The first category of disruptions, involving smaller groups of MPs, will require implementing decisions that have already been taken as well as introducing certain modifications to parliamentary procedures. Resolutions passed by successive presiding officers of both Houses of Parliament — that is, speakers and vice presidents— and leaders of parliamentary parties, provide the moral authority for presiding officers to have disrupters physically removed for a day or even more (the legal authority has always existed).
... ...
The second category of disruption, when large groups of MPs block parliamentary proceedings, requires deeper reform of parliament. Take the current JPC imbroglio. The opposition’s stubbornness can be summed up in the argument, “If the largest ever allegation of malfeasance in the country’s history does not justify a JPC, then what does?” The government’s obduracy lies in the stand that “Parliamentary rules provide for JPCs to be set up by consensus. The opposition is trying to bulldoze the majority opinion. If they don’t agree with our stand, let them move a vote of no confidence.”
...
Again a lesson can be taken from the US experience, where the Senate requires not a 51 per cent but a 60 per cent vote for the majority to override a filibuster, by which a member of the minority side can hold up legislation by speaking for an unlimited time. Our Parliament needs similar rule-based, not consensus, options where a significant minority — say 40 per cent as in the US Senate — should be able to press their point short of a no-confidence motion. This would take away the government of the day’s ability to dodge certain motions, or the formations of special committees like a JPC, and the country would no longer be held hostage to consensus between government and opposition.
Subscribe to:
Posts (Atom)
