Dealing with issues of impunity

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?

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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.

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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.

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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.

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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.

EC asks Jharkhand to file FIR in the cash for votes allegations

The Election commission of India asked Jharkhand Government to file an FIR in the cash for vote allegations. The sting operation was carried out by a telivision channel. The ECI discussed the ramifications of the telivision report. The guilty could be punished with imprisonment up to five years, reports The Hindu.

The Election Commission on Tuesday directed the Jharkhand government to file a First Information Report against the MLAs allegedly involved in the ‘cash-for-Rajya Sabha vote' sting carried out by a television channel.

The Commission took serious note of the news report and discussed its ramifications. It pointed out that the channel had shown a few MLAs as saying that on payment, they could get their and their colleagues' first and second preference votes (in the Rajya Sabha poll) in the manner desired by the payer. “This amounts to offence of bribery at an election under Section 171-B of the IPC and also Sections 8 and 9 of the Prevention of Corruption Act.”

Under the Prevention of Corruption Act, if the offence is proved, the guilty could be punished with imprisonment of up to five years and fine.

Jharkhand MLAs bargain a price for voting in Rajya Sabha election

A joint sting operation conducted by CNN-IBN and Cobrapost exposed the sale of votes for an amount as little as 50 Lakhs. The Congress has issues notice to all the MLA's who were caught in the camera. Political parties have demanded strong action against all the MLA's who were exposed.

This article was published in IBN politics on August 3rd 2010.

A day after a joint sting operation conducted by CNN-IBN and Cobrapost exposed Jharkhand MLAs who were willing to take as little as Rs 50 lakh to sell their votes in Rajya Sabha polls, the Congress has issued show-cause notice to its MLAs caught on camera.

All India Congress Committee member Keshav Rao, who is also in-charge of Jharkhand has written letters to its MLAs - Rajesh Ranjan, Sawan Lakda and Yogendra Sao - who were shown brokering a deal, in the sting operation.

Rao had earlier assured that the Congress would take action on the issue.

On Monday, within hours of airing the sting operation, political parties demanded strong action against those exposed by the operation.

Senior CPI-M leader and Politburo member Brinda Karat said it was sickening to see elected MLAs of national parties stooping so low for money.

Member of Parliament from Jharkhand and senior BJP leader Yashwant Sinha, whose party colleague Uma Shankar Akela was implicated in the action, too demanded action from the ethics commmittee of the Rajya Sabha.

"It is completely illegal to buy your way through the Rajya Sabha. I think the BJP leadership in the state and at the centre should ask him to explain his remarks," Sinha told CNN-IBN.

Besides political parties, India's Chief Election Commissioner SY Quraishi has also assured action against those involved. Quraishi said that the Election Commission will seek legal opinion on the way forward.