The Hindu Editorial Analysis | 9th Dec’19 | PDF Download

6 years on, Lokpal is yet to get prosecution wing

• Complaint formats, rules for disclosure of assets and liabilities and investigation regulations are yet to be notified
• Almost six years after the Lokpal and Lokayuktas Act, 2013, was signed into law, several key provisions needed for the anticorruption ombudsman to function have still not been operationalized. The process of constituting the Lokpal’s inquiry and prosecution wings has not yet begun, and regulations for how to conduct preliminary investigations have not been made, the Lokpal has said in response to RTI queries.
• The movement to ensure accountability through an anticorruption ombudsman has been long. The term Lokpal was coined in 1963 but it was not until January 2014 that the Lokpal and Lokayuktas Act came into force. It was more than five years later, in March 2019, that the first chairperson and members of the Lokpal were appointed.
• “After scrutiny, complaints that did not fall within the mandate of the Lokpal were disposed of and complainants have been informed accordingly,” says a note on the Lokpal website, adding that 1,000 such complaints have been disposed of until September 30.
• More than eight months later, the institution is functioning out of a government-owned hotel in Delhi. While it approved a logo and motto for itself last month, the Lokpal has not yet notified a format for filing complaints. Despite that obstacle, 1,065 complaints were sent to the Lokpal office.
• The Lokpal would find it difficult to investigate complaints that do fall within its mandate as it has no inquiry wing or regulations for inquiries. “The process of constitution of Inquiry Wing of Lokpal is yet to be initiated in consultation with the government of India,” the Lokpal’s office wrote on November 25, in response to RTI queries by activist Anjali Bhardwaj.
• Section 60 of the Act gives the Lokpal the power to make regulations on “the manner and procedure of conducting preliminary inquiry or investigation”. It also deals with making regulations on the website display of the status of all complaints — pending or disposed — along with records and evidence. However, in response to an RTI query, the Lokpal said, “Till now, no regulations have been made by the Lokpal under Section 60…”
• Similarly, asked about the setting up of a special wing to prosecute public servants for corruption, as mandated by the Act, the Lokpal’s office said, “The process of constitution of Prosecution Wing of Lokpal is yet to be initiated in consultation with the government of India.”
• The rules for the disclosure of assets and liabilities by public servants have not been notified either. This is a key provision as the amassing of assets disproportionate to the known sources of income is often the basis for a complaint. The draft rules of 2017 were referred to a Parliamentary Standing Committee, which submitted its recommendations to the government in July 2018. The Centre is yet to submit any Action Taken Report to the Rajya Sabha.

Trampling on grassroots

• It is a travesty of law that local body polls have been delayed by three years in Tamil Nadu
• Three years after they fell due in 2016, rural local bodies in Tamil Nadu will witness elections in the last week of this month. And, barring any further judicial intervention, urban local bodies are also likely to have elected representatives early next year. It is a travesty of the law that these elections have been delayed. Cities, towns and villages have been under the rule of unelected officials for too long. Under a Supreme Court order, polls for all local bodies will have to be held, except in those districts that have been divided recently to create new ones. It is the first time since local selfgovernment became the third tier of governance under the Constitution that polls have not been held on time in T.N. — timely elections were held every five years since 1996. Administrative lapses and political litigation over ward delimitation in various local bodies in accordance with the latest population figures in the 2011 Census resulted in the unprecedented delay. Originally announced on time in 2016, the notification was cancelled by the Madras High Court, citing irregularities in it. Since then, the issue of delimitation, the announcement of new districts and occasional litigation have contributed to the delay in setting in motion elections to the vital tiers of grassroots democracy.
• There have been frequent changes in the mode of electing mayors of city corporations and chairpersons of municipalities. Originally, direct elections were held, but it was changed to indirect mode in 2006. The present regime has changed its mind twice. In 2016, the Jayalalithaa regime opted for indirect elections, that is, only ward councillors would be elected by the people and these representatives, in turn, would elect mayors and municipal chairpersons. The current Edappadi K. Palaniswami government reversed the decision and chose the direct election mode. Recently, it once again changed its mind and restored the system of indirect election, citing “better accountability and collective responsibility”. It claimed that there was scope for conflict between a directly elected head and the councillors, and that this would be eliminated if councillors themselves elected the mayor or chairperson.
• Beyond all the legal and technical reasons, and political squabbles over the timing of elections, the attitude of the two main parties towards the importance of local bodies has been quite lukewarm. While the posts of the heads of various local bodies are seen as prestigious, there is much politicization when it comes to devolving funds and letting the various tiers work independently. District panchayats, in particular, are seen as being frequently undermined, as most parties consider them as a redundant third tier among panchayati raj institutions. While the polls are fought bitterly, the State is still some distance away from including local self-government bodies as partners in its development.
• Last Friday, the country was rudely awakened to the news of the deaths, in an encounter early in the morning, of the four accused in the rape and murder of the young veterinarian in Hyderabad — an incident, which happened on Wednesday, triggering an angry response across the country with demands for speedy justice. Some politicians demanded the public lynching of rapists. Members of the public were justifiably anguished that a gruesome crime such as this was even possible in the heart of a vibrant metropolis. It brought back memories of a similar and gruesome sexual assault on a young woman in Delhi in December 2012.
• Just before the veterinarian’s murder, in Asifabad close to Hyderabad, another woman of about the same age was sexually assaulted and murdered by three men; she belonged to an extremely vulnerable nomadic community that eked out a living from wage labour and petty vending. These cases are just two in a long list where women across India have been killed and maimed in the most brutal fashion while we have had a stringent, amended rape law in place and also fast track judicial processes
• Sexual assault is pervasive, these incidents tell us, and the response must be systemic, not episodic.
• In moments such as this, families react with deep anger and grief. Most times this is exhibited through a demand for instantaneous retribution. For several affected families, death is the only answer to rape. It is also a fact that this is not a universal view. Grief at loss and pathways to healing speak through different tongues, and we need to be mindful of this fact.
• Public responses that equate judicial outcomes and “justice” to immediate and quick retribution are not universal, nor just. When men accused of causing grievous hurt and loss of life to women through acid attacks are simply killed in police encounters, we may hear popular applause and appreciation of the heroism of the police; or we may, as we do now, be mere spectators to the showering of rose petals on police personnel involved in the encounter. Where does this drawing of blood stop?
• Is retributive justice the way to go in a democratic country that prides itself in its unprecedented historical legacy of resisting violence in fundamentally non-retributive ways?

The larger picture in mind

• In thinking through the course of justice, it is extremely important for us to rise above the heat of the moment and provide moral reassurance and comfort to families, while keeping sight of the rule of law and constitutional tenets. The ends of justice are not served by wanton killing and retributive blood lust. The course of justice cannot be determined by the grief and grieving of victims’ families. Justice lies in supporting them in their moment of grief and pain and insisting on due process that brings suspects and accused to trial through a robust, stringent and competent criminal investigation.
• This is the challenge before governments and the criminal justice administration, especially the police.
• After the December 2012 incident, in response to the widespread demand for a more stringent law and fast track courts, the law on rape was amended substantially based on the recommendations and deliberations of the Justice J.S. Verma Committee. The Criminal Law (Amendment) Act, 2013, or Nirbhaya Act, 2013, as it is christened, is testimony to the possibility of translating public angst into just law. That is a victory for the movement against rape that Nirbhaya’s family must celebrate as their own.

A note for the Indian police

• There is a procedure prescribed by the law for criminal investigation. This is a procedure embedded in constitutional principles and honed over decades of thinking on keeping constitutionalism alive and throbbing through the most testing times. Article 21 of the Constitution of India — “No person shall be deprived of his life or personal liberty except according to procedure established by law” — is fundamental and non-derogable. The police, as officers of government, are bound by the Constitution — there are no exceptions.
• The case at hand: four suspects are apprehended and shot in custody within a week, without the criminal investigation having commenced in any substantive way. They were shot purportedly when they tried to escape during an exercise of reconstruction of crime at the scene of offence — so even that very preliminary step in criminal investigation had not been completed. The police personnel — unnamed, except for a Commissioner of Police — have caused the investigation of the crime of rape and murder to abate by killing the suspects.
• Before we examine the problems in this action, let us refresh our memory of a core constitutional precept as set out in the Salwa Judum case in 2011: “Modern constitutionalism posits that no wielder of power should be allowed to claim the right to perpetrate state’s violence against anyone, much less its own citizens, unchecked by law, and notions of innate human dignity of every individual.” This is the touchstone of the constitutionally prescribed rule of law, which police officers are schooled in as part of their foundational training.
• The Supreme Court of India, by resurrecting Justice H.R. Khanna’s dissent in Puttaswamy in 2017, has prescribed the interpretation of Article 21: It is non-negotiable, non-derogable, and is not suspended even during conditions of Emergency. We are not living under declaration of Emergency so the duty of care is more onerous on the police. Any argument on the actions being carried out in ‘purported discharge of official duties’ especially involving the death of unarmed persons in custody cannot stand the narrowest test of Article 21.
• There is no law in force in India that authorizes the police to kill. The plea of self-defence cannot be used to rationalize a targeted, pre-meditated killing of suspects in custody. This plea is bound to the apprehension of death at the hands of the suspects at the time that the suspects are shot. There is nothing to suggest that the four suspects posed a threat to the lives of the police personnel since they were admittedly in custody and, therefore, presumably unarmed.
• The police have confessions of the suspects while in custody, the evidentiary value of which must be evaluated by the court; but we have on the other hand an open declaration by the police of shooting and causing death. As was argued in the Encounters case before the Andhra Pradesh High Court, the discussion on the law ‘was never whether there should be indictment and trial when homicide is committed in self-defense’. The debate was on ‘whether a plea of self-defense where excessive force is used, should be tried for manslaughter or murder’. We have deliberated on this at length in the High Court of Andhra Pradesh and the full bench decision on encounters can scarcely be forgotten especially because these are unarmed commoners in custody.
• A part of democracy
• Where does that leave us? The case of the rape and murder of the veterinarian abates with the killing of all four suspects. This without giving a chance for the law to operate. However, we now have a fresh case of the murder of four unarmed suspects in custody that must be investigated with police personnel required to stand trial. The pathways of justice are not linear nor without obstacles. But we have, as a people, chosen the route of democracy and the Constitution, so we really have no option but to school ourselves in constitutional morality.
• For as Dr. B.R. Ambedkar cautioned in anticipation, constitutional morality must replace public morality. It is not easy, because it is not a natural sentiment. But it is nonnegotiable. The world today is undergoing a fundamental transformation and there are several facets to the emerging uncertainty. Traditional and non-traditional security threats (economic and military competition, climate change, piracy, radical ideology, cyber threats, drug and human trafficking, and energy and food security) have grown in magnitude. Power, whether economic, political or military, is fractured. Trade and technology are at the heart of a new round of competition and contestation. Nationalism and regionalism are on the rise. There is less multilateralism but greater multi-polarity. Hedging and multi-alignment are the order of the day.
• Obstacles ahead
• All known paradigms are experiencing stress, which calls for readjustments. At the broadest level, the inadequacies of the post-World War II international institutions are showing up because of the complexities and uncertainties characterizing global politics and the economy today. The old consensus is fraying and a new consensus is yet to emerge.
• The liberal trading order has encountered protectionism in the form of tariff and non-tariff barriers, which explains why India’s service exports which touch $29.6 billion in the U.S. market, and pharma products, especially generic drugs, which account for 20% of global generic medicines, have barely been able to scratch the surface in the Chinese market. Cheaper imports from China, which practices “state capitalism”, threaten domestic manufacturing in India.
• Movement of talent and the services sector, important for India, have not received satisfactory attention. Many of these concerns are central to India’s position on the Regional Comprehensive Economic Partnership (RCEP).
• There is a looming danger for developing countries on account of ‘zero-sum’ mercantilism and rising protectionism in western economies. There is no doubt that the U.S.-China trade war has been disruptive.
• Geopolitical considerations are increasingly driving trade and investment decisions; on the other hand, geo-economic forces unleashed by China’s economic rise are redefining the geo-strategic landscape of the Indo-Pacific region.
• Worryingly, the global economy is likely to grow at its slowest pace in a decade, at 3% in 2019
• Today, the momentum in manufacturing activity has weakened to levels unseen since the global financial crises. Investor and business confidence even in emerging markets is at a low ebb. Low productivity growth and ageing demographics in advanced economies have further compounded the problem. Most countries appear to be financially vulnerable. Key anchors in the global economy, including China, are experiencing a slowdown. Elsewhere, Europe is in the throes of a major readjustment in the context of Brexit. Yet, amidst the downturn, Asia is witnessing the simultaneous rise of several powers. Global engines of economic growth over the past three decades have shifted to Asia, first to the Asia-Pacific and now, more broadly, to the Indo-Pacific region that includes South Asia. The continent, home to over half the global population, has emerged as the new fulcrum for geo-economic and geo-strategic realignments. High economic growth rates across the region are accompanied by some of the highest military expenditures in the world.
• The External Affairs Minister of India presciently said recently that if the world is different, we need to think, talk and engage accordingly. The wheels of change appear to have been set in motion. In the face of automation, countries are undertaking structural reforms and emphasizing skills-training to raise productivity. Development and adoption of green technology is also a priority. Even Saudi Arabia, the quintessentially hydrocarbon-dependent economy, has endeavoured to diversify its economy through the Saudi Vision 2030 master-plan.
• Shaping trade, economy
• Both India and China are expected to contribute to global economic growth in the future. India is also transforming into a knowledge-based, skill-supported and technology-driven society. A liberal FDI regime combined with a youthful demographic profile makes India an attractive destination. India attaches great importance to its relations with China, a large trade partner in goods. Since 2015, there has been a spurt in Chinese FDI in India (at around $8 billion). There is great scope for China to participate in flagship initiatives such as the ‘Smart Cities Mission’ and ‘Skill India’ programmes. As the world’s secondlargest economy, China can and must play a constructive role globally and within Asia to help the world return to higher growth rates. Bilateral trade today is approximately $95 billion. India faces a huge and rising trade imbalance. The decision at the Mamallapuram Summit, in October, to set up a new mechanism to discuss the trade imbalance, is aimed at addressing this issue.
• As members of several multilateral institutions, India and China are in a unique position to give shape to their economic destinies. There are suggestions that the era of the World Trade Organisation (WTO)-anchored, Most Favoured Nation (MFN)-based regime is drawing to a close and that the future lies in a web of free trade agreements. However, there is still scope for India and China to work together to strengthen the WTO.
• The RCEP should have a wider ambit, including trade in services. Many countries (especially Japan which still boasts the world’s second-largest developed economy) have openly favoured a more accommodating position that addresses India’s concerns and facilitates its joining the RCEP. China too should pro-actively work to ensure India’s membership.
• Beyond jointly training Afghan diplomats under the “India-China Plus One” framework, China and India could explore the potential to work together on Asian infrastructure and connectivity development on the basis of equality and an open and transparent model under the Asian Infrastructure Investment Bank (AIIB).
• As China’s presence in South Asia grows, greater transparency in its actions and closer consultations with India are also necessary to help allay concerns. China should also be mindful of its forays into the Exclusive Economic Zone of others.
• Today, the global energy market is more favourable to consumers in the face of a supply side glut. OPEC and non-OPEC oil and gas producers have come together to prevent a fall in energy prices. This should be a common concern for China and India. As two of the world’s biggest importers of oil and gas, the two nations should have a joint consultative mechanism to protect the interests of consumers.
• It must be remembered that Asia’s rise is predicated on peace and stability. It is a sad fact that a stable regional security architecture has yet to emerge organically in Asia. It is worth recalling what Prime Minister Narendra Modi had stated at the Raisina Dialogue in 2017: that there is enough room for all Asian countries to prosper together, and that the Asia of rivalry will hold us all back. It is the Asia of cooperation that will shape this century.

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