There is an easy way of denying rights or declaring a rightful tribal an encroacher : Just deny him the information within time.

There is an easy way of denying rights or declaring a rightful tribal an encroacher. Just deny him the information within time. He is evicted from the forest where he was dwelling for generations.

Delay the order of rejection of claim by sixty days, so that he cannot appeal within prescribed 60 days. Or don’t send summons or don’t deliver them to right persons. It is not the issue of denial of information sought under RTI Act.

Its deliberate abdication of responsibility of communicating the rejection of claim. If tribal asks information under RTI Act, the babus have another weapon- Section 8(1). They also have a F16 i.e., ‘file is missing’.

Story of 61 Bhill tribe residents in Rajasthan forest

This is the life and death story of 61 Bhill tribe residents who are facing the danger of eviction from their home i.e., Rajasthan forest, since centuries, because of undue rejection of their claims under Forest Rights Act, 2006.

Tribals and other traditional groups, who dwell in forests do not know how to document their rights, and preservation of the papers about property transactions. Most of their transactions are oral.

Unlike civilised (so-called) sections, the oral agreements of tribals are not breached. When a Bhill tribal, Devi Lal, got a summon for verification of his claim in forest officer’s court, he was immensely happy and preserved the summon letter by lamination. For him it gives some proof of his right to reside in forest.

Like Devi Lal, sixty other Bhils also received summons in 2015 but their claims were rejected. As per law, they can appeal within 60 days from rejection. But they were not informed, nor rejection order was delivered.

As they could not appeal, the rejection was confirmed. Information is an important issue in access to justice. The best way of denial of rights, as practiced by bureaucrats, is not to give information about rejection before the appeal time is expired.

The forest dweller has a double risk. If he does not claim right of residence under Forest Rights Act, he will be deprived of what he was having from forefather’s time. He must file a claim. If his claim is admitted and title is given, it is a positive recognition of his possession.

It does not mean some new right accrued to him. But if his claim is rejected for any reason, he will lose everything- home and living rights. He will be considered encroacher and may get uprooted soon or later.

It is strange that if some one fails to prove his claim, he will be disappointed, that is all. But under this FRA, on failure, the claimant deemed to be encroacher and he will evicted, i.e., he will be immediately punished for crime of encroachment, though he was living there for generations.

Can tribals bring satellite images?

Can innocent tribal people prove their residence through satellite images? Officially, 46 per cent of the claims are rejected by such ‘insufficiency’ and other suspicious process. Then they face risk of immediate eviction.

Although the FRA rules list numerous kinds of admissible evidence, including statements from village elders, permanent improvements to land such as bunds, and genealogy tracing ancestry to persons mentioned in old land records, States often make additional demands that are not a part of the Act.

In Gujarat, the government insisted on records from forest department to prove the claim. Strangely they also asked them to produce the satellite imagery, that too, only from Gandhinagar Institute or the Bhaskaracharya Institute for Space Applications and Geo-informatics.

Officers breach the law

Out of 118,000 claims filed till 2008, one third of them are rejected for reasons of not furnishing such documents. The Forest Rights Act requires only proof possession in December 2005, but contrary to this Gujarat officers, reportedly insisted proof of possession before 1980.

In 2013, the Gujarat High Court struck down these requirements and said: “to demand from such a class of citizens strict proof as regards their rights would frustrate the very object with which the Act has been enacted”. The court directed the officers to review such rejected claims.

Review is mandatory

In March 2018, the Ministry of Tribal Affairs issued a statement saying that it had asked chief secretaries of state governments where the rejection rates are high, to “mandatorily” review all such claims from April 1, 2014.

As of November 2018, the latest month for which data are available, Chhattisgarh had rejected most individual claims (455,000), followed by Madhya Pradesh (350,000) and Maharashtra (120,000).

Claimants asked to produce 75-year-old documents, but office files go missing!

The problem of evidence is worse for “other traditional forest dwellers OTFD”, those who do not belong to a scheduled tribe. They must prove “continuous existence” in the forest for 75 years, which is almost impossible.

By a rule, Karnataka wants 75-year-old documents. The sarkari machinery that ask dwellers to produce 75-year-old documents, is so efficient that its files will go missing.

The tribals filed the claims between 2010 and 2012 to their homes and agricultural fields. But their papers are missing. They do not give acknowledgments at least.

Devi Lal went several times to panchayat only to hear the answer ‘file is under process’.

As there was no communication about claims, Devi Lal and other farmers filed fresh applications in 2017. As their earlier claims were rejected by the SDLC, they could not file a new claim.

Why were they rejected? For tracking the claim papers and reasoned orders of rejection they filed RTI requests. They got some papers in response, including one that says request is under process.

In fact, files were absent. Such actions of SDLC’s are in violation of several of FRA provisions, such as Section 12 (A) (3) that says a rejection should be conveyed “in person” so that the claimant can file an appeal within 60 days; and Section 12 (A) (10) that says the reasons for rejection must be recorded in writing.

FRC constituted because of RTI

In some of cases, the Forest Rights Committees were also not constituted. They constituted FRC only in June 2018, three days after an RTI was filed seeking the names of the committee members.

The committee had five members, though the law says it should have no fewer than 10. There were no women representatives, as the law says there must be. There was a “vice president” appointed to the committee, an illegal position.

Postal receipts of the right-to-information requests filed by the Bhils of Rawatbhata block in Rajasthan’s Chittorgarh to track their claims under the Forest Rights Act.

While the claimants did not receive the rejection orders, even the office also does not have the 61 rejection orders, allegedly sent to panchayat samithi, which says rejection orders were forwarded to Bhainsrorgarh village panchayat for distribution.

Panchayat office claims that they did not find any such order. When confronted with facts and figures, the officers were silent. Head of SDLC says he was not aware of Devi Lal case.

Non-communication of rejection orders is confirmed by the Ministry in its affidavit before apex court on February 27, 2019, saying that the Ministry was aware of concerns around rejections, including a high rate of rejections and “non-communication of rejection order (sic)”.

(Based on media reports)

Courtesy : Hans News Service
Originally published on 10 June 2019.

(The writer is former Central Information Commissioner and Professor of Law, at Bennett University, Greater Noida.    His mail ID is : madabhushi.sridhar@gmail.com )

Courtesy: Counter Current

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We build temples for any person from God, Gandhi to Godse, and personalities like Amitabh Bachchan, Sachin Tendulkar, Khushboo and Sonia Gandhi. Also Read – Race, sexual politics in spotlight at Broadway’s Tony awards Advertise With Us Kamal Haasan, actor-turned-politician is free to say that Godse was the first Hindu terrorist and the BJP’s candidate and now MP, Sadhvi Pragya Singh Thakur, describes him as desh bhakth. Haasan reportedly said at a public meeting in Tamil Nadu on May 12: “Free India’s first terrorist was a Hindu, his name is Nathuram Godse. There it (terrorism) starts”. Then after four days, Sadhvi Pragya Singh Thakur exercised her Constitutional freedom by saying, “Nathuram Godse was a desh bhakt, is a desh bhakt and will remain a desh bhakt.”

Exercising his creative expression right, Kamala Hassan scripted, acted, directed ‘Hey Ram’ movie, where hero Saket Ram Iyengar thinks like Godse and plans like him to kill Gandhi. ‘Hey Ram’ is an Indian alternate historical fiction released in 2000. Saket Ram Iyengar played by Kamal, plans like Nathuram Godse to eliminate Gandhi alleging pro-Pakistan politics. By the time Saket Ram reaches Delhi he starts admiring him, and then gets surprised to see Godse firing bullets at the Father of the Nation. When Kamal Haasan categorised Godse’s act as terrorism or extremism, he must have forgotten that 19 years ago he tried to justify the attempt in Hey Ram for his cinema commerce. Whether this political drama of Kamal supports the Godse’s terrorism, so called by him?

Interestingly, both Kamal and Pragya have exercised their freedom to retract their statements like Saket in Hey Ram changed his mind in the last phase. Kamal Haasan said he did not use the word terrorist but said he was an extremist. Sadhvi Pragya Singh Thakur, under pressure from the BJP leadership, apologised and withdrew her statement. Prime Minister said he cannot forgive her for this. She is elected to Lok Sabha from Bhopal and she is one among 353 who elected Modi as leader again.

Even Godse has repented! According to G D Khosla, a High Court judge who heard appeal in Punjab High Court, the assassin Godse repented for his deed and vowed to work for peace like Gandhi. Justice G D Khosla, a member of three-judge Bench, who heard the appeal filed by Godse and his co-convicts against the trial court’s verdict in the Mahatma Gandhi’s assassination case, published a book in 1965 recording the legal aspects of these events. Justice Khosla observed “the decision to strike was taken on January 13, when it was learnt that Mahatma Gandhi had started his fast to put pressure upon the Government of India and compel it to review its former decision to withhold the payment of 55 crores rupees to Pakistan… the conspirators could wait no longer”.

According to Justice Khosla, Godse had “repented his deed and declared that were he to be given another chance he would spend the rest of his life in the promotion of peace and service of the country”. If this is true, it means, even Godse changed his mind about Gandhi’s peace mission. (Godse did not appeal neither on his conviction nor on death sentence. He only preferred appeal on a limited point of conspiracy).

It’s interesting that two politicians, Godse and a principal character of a movie “Hey Ram’ also changed their minds. Another dispute is whether Gandhi said ‘Hey Ram’ at the end of his life. Kamal’s movie cleverly avoids it as Gandhi in ‘Hey Ram’ dies without spelling ‘Hey Ram’.
With all this backdrop, what moral right Pragya and others have to categorise Godse as desh bhakt? We the people, build temples for both Gandhi and Godse. We defeat Kamal and his candidates but elect Pragya Thakur from Bhopal. What moral right we have to say either Godse or Gandhi are correct?

On November 16, 2017, Hindu Mahasabha at its office in Daulatganj in Gwalior district laid foundation stone for construction of a temple in the name of Nathuram Godse, though district administration has not permitted it. A statue has already been put up in their office and they observe November 15, 1949, the day on which he was hanged to death as ‘sacrifice day.’ Later the Gwalior administration gave a notice to remove the temple from that place.

On May 21, 2019, the police arrested six Hindu Mahasabha activists in Surat for allegedly celebrating the birth anniversary of Nathuram Godse, with lighting lamps, singing bhajans and exchanging sweets. It appears they have built a temple there for Godse. There are temples for Gandhi at several places, including one in Sambalpur, Orissa, and another in Peddakaparthi village of Nalgonda district in Telangana.

If these love-hate conflicts of Gandhi and Godse impacted the campaign and impressed voters, God only must save our democracy. Because we, the people of India, are desh bhakths, and we decide our democracy.

(The writer is former Central Information Commissioner and Professor of Law, at Bennett University, Greater Noida)

Courtesy : Hans News Service, published on  4 Jun 2019.
https://www.thehansindia.com/hans/opinion/news-analysis/right-to-analyse-gandhi-and-appraise-godse-534835
 

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Madabhushi Sridhar Acharyulu, who recently retired as Central Information Commissioner, is one of India’s most resolute advocates for transparency, and for strengthening citizens’ right to information. Acharyulu, 65, was a professor of law at the National Academy of Legal Studies and Research University of Law, Hyderabad, before being appointed to the Central Information Commission in November 2013. He passed several crucial RTI orders in high-profile cases during his five-year term.

These included orders to make public government records on the Polavaram Dam, Member of Parliament funds expenditure, the Employees’ Provident Fund Organisation, academic qualifications of people holding high public offices, including the prime minister, and most recently, the Reserve Bank of India’s records on big loan defaulters. Acharyulu is also an outspoken critic of the government’s attempts to amend the RTI Act, saying this will “finish” the Act and impair the CIC’s watchdog functions.

Edited excerpts of an Interview :

Having spent the last five years as a member of the Central Information Commission, the RTI watchdog body, how would you rate the current health of RTI?
I would say 9 out of 10. Our attention naturally goes to the cases where information is not given. But I heard around 20,000 cases in my tenure. In most, I ordered disclosure and my orders were followed. I tried to instil an attitude of disclosure in officers who appeared before me, and I did see a change over the years – in regulatory bodies like the Bar Council and the Medical Council, in ministries like law, environment [forests and climate change], and in the Delhi government.

Six million RTI requests are reportedly filed each year in India. This shows how widely the Act is being used. But I would point out that 60% to 70% of RTI requests are either for employee grievance redressal, or entitlement grievance redressal. RTIs are being filed to ask about promotions, pensions. Or for something as basic as a copy of a government order which should already be in the public domain. This shows the scale of misgovernance.

Many RTI activists and transparency advocates might disagree with your ‘9’ rating, and argue that the government has progressively undermined the Right to Information. For example, by denying information of public significance such as on large wilful loan defaulters, or by not filling vacancies in the CIC.
RTI activists are raising several important issues, and I acknowledge those and even concur with them. On December 10, 2018, I wrote an open letter to the head of the nation, the President of India – my effective boss – asking that the eight vacancies in the CIC [including the chief information commissioner] be urgently filled. More importantly, the quality of CIC orders reflects the quality of appointments. For this, the CIC needs to be more representative.

The RTI Act specifies that commissioners should be appointed from fields such as law, media, science and technology, social service,
management, journalism, and administration and governance. Why does the government only favour retired bureaucrats for the CIC? Nowhere does the Act state that the chief information commissioner should only be from the bureaucracy. The government should make the next set of appointments, including the chief, from all these other fields. A retired bureaucrat should be appointed only after assessing what he or she has done for the cause of transparency over their career, what is their inclination towards transparency. Information commissions [central and state] have developed an image of becoming the place for retired bureaucrats. The government should put an end to this image.

[On December 13, in a landmark directive, the Supreme Court asked the government to disclose details of the applications it has received for filling vacancies in the CIC, while hearing a public interest litigation by RTI activist Anjali Bhardwaj on CIC appointments.]

The government has also undermined the RTI Act by steadily diluting the post of the Public Information Officer. The junior-most officers, including Section Officers, are servicing RTI requests, while senior officers with decision-making powers have distanced themselves from engaging with RTI requests.
Yes, that is absolutely true. The decision to deny information often takes place at much higher levels, but the PIO [Public Information Officer], who is a small fry in the entire mechanism, is the one replying to your RTI request. The way I addressed this was to ask the PIO who appeared before me, “Where is the information held up? Tell me, or be ready to pay a penalty of Rs 25,000.” They would say, “Sir, it is not in my hands.” [I would ask], “Then in whose hands is it?” I would then make the relevant official the deemed PIO. That is how I ended up issuing show cause notices to a university vice-chancellor and registrar, a commission chairperson, and the RBI governor. This last case became big news. But I was doing it throughout my tenure in several departments, whenever the need arose.

About the RBI case, which was among the last and most significant ones you heard, you issued a show cause notice to the RBI governor this November for not complying with the RTI Act, and ordered that the information sought on wilful defaulters with loans above Rs 50 crore be disclosed. But the RBI has challenged your order in the Bombay High Court, saying “such disclosure could harm the national economy”, and obtained an interim stay.
The RBI’s stand is most unfortunate. Its arguments that information about big loan defaulters is private, and disclosing it endangers national security and harms the country’s economic interests, are absurd. (These are) most unconstitutional and irresponsible arguments. It is just a cover-up for corruption and mismanagement. By not disclosing who the wilful defaulters are, you are hiding the involvement of bankers–that is my suspicion, that you have deliberately supported the defaulting process. Thousands of crores of rupees of public money have been given as loans. Some powerful parties have then defaulted. Why should this information be kept secret from the people? This is a total violation of the Act, a total illegality.

In fact, the issue of loan defaulters is a classic case where transparency is necessary for solving such problems. With non-transparency, you have facilitated darkness to commit fraud, mischief, criminal negligence, regulatory defects and the evergreening of loans. Ultimately the burden of the loan appears to be unbearable. And then you come out and say it is a non-performing asset. This is not a business secret of the banks, but a business defect.

One purpose of RTI was to question such bad governance. In fact, RBI has gone so far as to violate a prior Supreme Court ruling upholding several orders by the previous commissioner Shailesh Gandhi [directing RBI to disclose information]. The top man of the RBI should be hauled up for contempt of court. But they have taken a policy decision to not disclose. They announce on their website which information will not be disclosed, citing various exclusion clauses of RTI as ‘the enabling provision’. This is totally wrong. Now they have gone to court [against the CIC order to disclose the wilful defaulters list]. A common person might be able to file a 10-rupee RTI application. How will they have the wherewithal to face a powerful body like RBI in the Supreme Court? Is this not intimidation? In such a case, it is the job of the CIC to come to the rescue of the common citizen.

RBI’s response, challenging your notice in the Bombay High Court, also reflects a wider phenomenon of authorities challenging CIC orders in court to avoid disclosure.
Information commissions were supposed to be the site of final appeal. But courts have been turned into a site of third appeal by governments just to avoid giving information. A writ petition was meant to be a tool by which citizens could address the violation of their fundamental rights. Instead, governments are filing writ petitions against Information commissions and citizens, pleading for the non-disclosure of information. Look at the farce! Going by some media reports, there are 1,700 writ petitions filed by the government as of date against CIC orders.

The government should ask itself, what message it is giving to the people by filing all these cases. You are aiming at intimidating the CIC, taming it. In some instances, cases are filed making individual commissioners respondents. In one case filed by Gujarat University [here, the university implemented Acharyulu’s order to disclose information on the postgraduate degree of Prime Minister Narendra Modi, but also moved the Gujarat High Court for a stay], I have been made Respondents 1, 2 and 3! Respondent 1 M Sridhar Acharyulu, Respondent 2 M Sridhar Acharyulu, Information Commissioner, and Respondent 3, Information Commissioner.

The government’s RTI Act amendment bill is also being read as an attempt to tame the CIC.
The amendment, if passed, will not just tame the CIC and RTI Act, but completely finish it. Currently, under the Act, the term of a commissioner is fixed. The independence of the CIC draws upon making it difficult to remove commissioners. The amendment will end commissioners’ independence and turn them into glorified clerks. Their tenure will be at the government’s pleasure.

Citizens should strongly oppose these amendments. The Srikrishna Committee report [on the proposed Personal Data Protection Bill, 2018], which also proposes amending the RTI Act, is another big threat. In my term as commissioner, I saw Section 8.1.J[denying information on the grounds of it being “personal information”] of the RTI Act being widely abused by PIOs. Now, in the guise of privacy, the Srikrishna Committee’s proposed amendment will build a watertight compartment around a public authority, which will not provide even a drop of information. It is a very big threat.

How could we strengthen RTI, given these challenges?
The general election will be held in a few months, and citizens need to question political parties about their stand on RTI, and how committed they are to transparency. All political parties should commit to the following in their manifestos: That they will not amend or dilute the RTI Act; that they will implement Section 4 [the suo moto disclosure clause of the Act] in letter and spirit; that they will appoint information commissioners promptly and choose 90% of them from non-bureaucratic fields; and that they will bring themselves under RTI. Citizens should evaluate parties on these aspects before casting their vote. They should strongly resist any attempt to dilute RTI, and file RTI requests, and use the Act for public purpose.

(Madabhushi Sridhar Acharyulu spoke to IndiaSpend about why the Bill will be a blow to transparency. Interview by Chitrangada Choudhury, IndiaSpend.com. Originally Published Dec 25, 2018.)

(The writer is former Central Information Commissioner Renowned Professor of Law, earlier at NALSAR , and now at Bennett University, Noida. He can be contacted at madabhushi.sridhar@gmail.com)

Courtesy: Counter Current

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(Madabhushi, former Central Information Commissioner, wrote a series of articles on attempts by governments, at the Centre and in States, to subvert RTI. This is one of them, the latest.)

The Union government proposed setting up of two committees – one to receive and decided on complaints against the Chief Information Commissioner (CIC) and the second one for complaints against the Information Commissioners. The committee to receive complaints against the Chief Information Commissioner is proposed to be consisting of Cabinet Secretary, Secretary DoPT and the former CIC, and the committee to act on complaints against Information Commissioners will be consisting of Secretary (Coordination) in the Cabinet secretariat, Secretary DoPT and a retired IC. Also Read – New ‘biosignature’ to track remains of ancient life on Earth Advertise With Us It is ridiculous to make such ‘officers’ who are supposed to obey the directions of ICs and CIC, to inquire into the complaints against CICs.

The statutory status of Central Information Commissioners and Chief is much above the level of Cabinet Secretary etc. The RTI Act gave CIC the power to direct and impose penalties on these officers if they don’t give information. The ICs are on par with Election Commissioners, who in turn function at the level of Supreme Court judges. Also Read – Several economic promises of BJP too tall: Experts Advertise With Us The CICs are appointed by the President on recommendation of the high-power committee led by the Prime Minister, a Cabinet Minister and the Leader of the Opposition. The Central Information Commission must function autonomously without being subjected to directions by any other authority under this Act (Section 12(4) or RTI Act).

The committees proposed are not authorities under this Act. The government cannot create any such authority in the absence of any enabling provision in the Act. Advertise With Us By filling the commission with the officers, who served them with utmost loyalty, the independence of CIC is killed at the origin, i.e., appointment stage and now these panels will instil fear among the appointed commissioners not to give any adverse orders. The CIC recently asked the government offices to disclose the corruption and other cases against its officers. President is the authority Section 14 (1) of the RTI Act insulates the commissioners from any authorities other than President. It states that power of removing the commissioners is vested only in the President, that too, on the ground of proved misbehaviour or incapacity after the Supreme Court. The President must make a reference to the Supreme Court, which must conduct inquiry. Section 14 (3) explains some more reasons.

President may remove a commissioner if he/she is adjudged an insolvent, has been convicted of an offence which involves moral turpitude, engages during his/her term of office in any paid employment outside, unfit to continue in office by reason of infirmity of mind or body; or has acquired such financial or other interest as is likely to affect prejudicially his functions as the CIC or an IC. This high- level procedure is prescribed to insulate the office of CICs from frequent interference from the political executive. As the President is appointing authority it is appropriate for the President only to remove or initiate the process of removal of the commissioner. If anybody has proof or strong allegation of misconduct, he can make complaint to the President. Many complaints are generally posted to the Chief Information Commissioner also. The President’s office most of the times forwards the complaints to the commission. Recently the CIC has introduced a practice of pointing out the complaints in the commission’s meeting or/and forward complaint to the concerned commission for information. Under the Act, the chief has no authority to receive or act on any complaint. The disgruntled elements file complaints against the commissioners.

More of such complaints are frivolous on the face of it. Naming the commissioner and the number of complaints with brief content of allegation is felt not proper. Then in an informal meeting the complaints were briefed without taking the names. The President’s office is the only appropriate forum for filing complaints with proof. The government’s duty to implement RTI The government of the day is a major player in implementing the RTI Act, the key part of it being the constitution of CIC. By delaying or not filling the vacancies and by selecting 99 pc former bureaucrats, on the merit of ‘loyalty’ only the government is continuously wielding complete control over body and the mind of the CICs. Yet, the top bureaucrats in the government are not happy. They tried to dilute this institution by framing rules, developing a draft amendment and now to create the panels. Faced with resistance from the commissioners, they dropped rules and postponed the amendment proposal. Then officers came up with this method of controlling. The CIC deserves appreciation for unitedly opposing these panels. Till today the PMO personnel were interfering with the functioning of the CIC, and if this proposal is through, every department will supervise the adjudication of second appeals and demand the ‘judgments’ of their choice with the threat of inquiry. Atrocious proposal It’s totally against the RTI Act, and violative of letter and spirit of our democratic constitution which gave independence to information tribunal.

It is bureaucracy’s desperate attempt to annex the transparency panel under their hierarchy. This proposal will reduce the CIC to the level of a glorified clerk without glory. Its atrocious for the government of India to come up with this kind of proposal when the nation is going to polls, a referendum on the present governance. It will convert independent institutions into dependent branches. They will also be using the CIC, like other independent enforcement organisations, to threaten the people, who oppose the ruling party or ruling thought. If they appoint independent persons from different walks of life with cherished past of being transparent, there will be no complaints against CICs and no such committee will be necessitated. The nation must understand the so-called commitment of this government towards transparency and RTI and decide their choice in this election.

The honourable President of India should come to the rescue of RTI by insulating CIC from these kinds of onslaughts from the government as their subordinate officers are trying to prevent people from asking for embarrassing disclosures using RTI. This attempt is highly undemocratic, unconstitutional and smacks of high-level dictatorship and authoritarianism. This must be totally opposed. The President should consider advising his government not to do this. The people must oppose this proposal and save their dear right to information.

(The writer is former Central Information Commissioner and Professor, Bennett University. He can be contacted at madabhushi.sridhar@gmail.com)

Courtesy: Counter Current

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These Trinity of Telugu personalities gave voters the right to information about contestants: They are petitioner Professor Trilochan Shastry of Association of Democratic Reforms (ADR), eminent advocate Padma Bhushan PP Rao and renowned justice of Supreme Court P Venkatram Reddy (with other distinguished colleagues)

These Trinity of Telugu personalities gave voters the right to information about contestants: They are petitioner Professor Trilochan Shastry of Association of Democratic Reforms (ADR), eminent advocate Padma Bhushan PP Rao and renowned justice of Supreme Court P Venkatram Reddy (with other distinguished colleagues). In the context of International Women’s Day on March 8, Association of Democratic Reforms (ADR) and National Election Watch reported that only 9% women are MLAs and MPs across the country in 2019.

Hundreds of men who declared cases of crimes against women pending against them in their affidavits were given tickets by key political parties, with the BJP giving the highest number of tickets at 54. According to the report, out of 1,642 (34%) MPs/MLAs analysed with declared criminal cases, 52 have declared cases related to crimes against women. The second highest number of candidates, i.e. 37 accused in crimes against women were given tickets by the BSP, followed by 30 candidates from the Indian National Congress (INC) had contested for Lok/Rajya Sabha and State Assemblies.

Criminality is perhaps the qualification and quality to represent the people and govern the nation! Neither any politician nor any political party was interested in telling the people about their candidates. No party is ready to share the criterion for selection of their candidate who is expected to represent the people and rule them. No party feels ashamed of to offer ticket to a person who crossed over to their party a night before.

Some leaders wait with “B” form ready in hand for disgruntled leaders and persons, who could not procure ticket and hence defect into their party. Shameless! Whether the BJP or the Congress, the Communists or others, the parties fight tooth and nail to be out of Right to Information Act. They never want to be transparent. It was because of the PIL by teacher (Trilochan Sastry), efficient argument by PP Rao and effective judgment by PV Rao, not because of any politicians, the candidates are now compelled to reveal their criminal, academic (if any) and wealth background. The ADR and PUCL filed a PIL before the High Court of Delhi seeking directions to make the electoral process in India more fair, transparent and equitable. The government of India, in routine, sought the Law Commission to recommend and the Law Commission recommended, which the government never cared to implement. The Election Commission, in its Constitutional responsibility, should have required all contesting candidates to disclose personal background information to the public, including criminal history, educational qualifications, personal financial details and other information necessary for judging a candidate’s capacity and capability. It did not do until the Supreme Court mandated it and a law was forced upon. Ruling that a candidate’s background should not be kept in the dark as it is not in the interest of democracy, the High Court of Delhi ordered the Election Commission to obtain such information for the benefit of the voters. The Union of India challenged the decision of High Court through an appeal to the Supreme Court of India, arguing that the Election Commission and the High Court did not have such powers and that voters did not have a right to such information. Shameless again! Two significant rulings were given by the court: (1) When the legislature is silent on a particular subject and an entity (in this case, the Election Commission) has been granted implementation authority with respect to such subject, the Court assumes that the entity has the power to issue directions or orders to fill such a void until a suitable law on the subject is enacted; the Court confirmed that Article 324 “operates in areas unoccupied by legislation” and that “the silence of a statute has no exclusionary effect except where it flows from necessary implication”. In other words, the Court’s power to issue directions pursuant to Article 324 is plenary. By extension, the Election Commission, as ordered by the Court, can issue suitable directions to maintain the purity and transparency of the “entire process of election”. (2) Citizens have a right to know about public functionaries, which is derived from the concept of freedom of speech and expression and which includes the right to know about the backgrounds of candidates for public office. The Court characterised the right to know as a right derived from the right to freedom of speech and expression. The public has a right to know about candidates contesting elections because such rights include the right to hold opinions and acquire information so as to be sufficiently informed in forming and disseminating those opinions throughout the election process. The court advanced this point by observing that a successful democracy strives toward an “aware citizenry” and misinformation or non-information of any kind will create an “uniformed citizenry which makes democracy a farce”. The court directed the EC to issue orders to compel each contestant to give information about criminal charges and convictions in the candidate’s past, any pending cases in which the candidate is an accused, all assets of a candidate including those of his/her spouse, all liabilities of a candidate, and all educational qualifications of a candidate. The judicial wisdom did not appear to be democratic wisdom for the politicians ruling India during December 2002. Led by Prime Minister Atal Behari Vajpayee, they responded to the judgment, by amending Representation of the People Act, that required a candidate for office to provide information “as to whether he is accused [or convicted] of any offence punishable with imprisonment for two years or more in a pending case” (Section 33A). Most important is S 33B: No candidate could be compelled to disclose any additional information, including educational qualifications and assets and liabilities, “notwithstanding anything contained in the judgment of any court or directions issued by the Election Commission”. Shameless Again! This is the real face of political parties, whether the BJP or the Congress, the Left or Centre. Again, the Supreme Court examined constitutional validity of Section 33B in the case Union for Civil Liberties and Another (PUCL) v. Union of India and Another. Justice P Venkatram Reddy in 2003 Judgment of Supreme Court held: Section 33B inserted by the Representation of People (3 rd Amendment) Act, 2002 does not pass the test of constitutionality firstly for the reason that it imposes blanket ban on dissemination of information other than that spelt out in the enactment irrespective of the need of the hour and the future exigencies and expedients and secondly for the reason that the ban operates despite the fact that the disclosure of information now provided for is deficient and inadequate. Because of this order, today every candidate is explaining his background through affidavit. It is now the duty of voter to think over whether he is knowingly voting a criminal, or a bankrupt/corrupt, or uneducated leader or who claims to have false degree! Let us not elect criminals.

(The writer is former Central Information Commissioner and Professor, Bennett University)

Published on 25 March 2019 in www.thehansindia.com.

Courtesy: Counter Current

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