Aadhaar: on a Platform of Myths

Aadhaar: on a Platform of Myths

R. Ramakumar

The Aadhaar project, just as its failed

counterpart in the U.K., stands on a

platform of myths. India needs a

mass campaign to expose these

myths. Two countries, two pet

projects of the respective Prime

Ministers. Unmistakable parallels in

the discourse. “The case for ID cards

is a case not about liberty, but about

the modern world,” wrote Tony Blair

in November 2006, as he was

mobilising support for his Identity

Cards Bill, 2004. “Aadhaar…is

symbolic of the new and modern

India,” said Manmohan Singh in

September 2010, as he distributed

the first Aadhaar number in

Nandurbar. “What we are trying to do

with identity cards is make use of

themodern technology,” said Mr.

Blair. “Aadhaar project would use

today’s latest andmodern

technology,” said Dr. Singh. The

similarities are endless.

Mr. Blair’s celebrated push for

identity cards ended in a political

disaster for Labour. The British

people resisted the project for over

five years. Finally, the Cameron

government scrapped the Identity

Cards Act in 2010, thus abolishing

identity cards and plans for a National

Identity Register. On the other hand,

India is enthusiastically pushing the

Aadhaar, or unique identity (UID),

project. The UID project has been

integrated with the Home Ministry’s

National Population Register (NPR).

The “National Identification Authority

of India Bill” has been tabled in

Parliament. Globally, observers of

identity policies are watching if India

learns anything from the “modern”

world.

The experience with identity cards

in the United Kingdom tells us that

Mr. Blair’s marketing of the scheme

was from a platform of myths. First,

he stated that enrolment for cards

would be “voluntary”. Second, he

argued that the card would reduce

leakages from the National Health

System and other entitlement

programmes; David Blunkett even

called it not an “identity card,” but

an “entitlement card.” Third, Mr. Blair

argued that the card would protect

citizens from “terrorism” and “identity

fraud.” For this, the biometric

technology was projected as

infallible.

All these claims were questioned by

scholarly and public opinion. A

meticulous report from the London

School of Economics examined each

claim and rejected them (see “Highcost,

High-risk,” Frontline, August

14, 2009). This report argued that the

government was making the card

compulsory across such a wide

range of schemes that it would,de

facto, become compulsory. It also

argued that the card would not end

identity fraud in entitlement

schemes. The reason: biometrics

was not a reliable method of deduplication.

The Indian discourse around

Aadhaar is remarkably similar.

Almost identical arguments are

forwarded in support of the project

to provide a population of over one

billion people with UID numbers. I

argue that Aadhaar, just as its failed

counterpart in the U.K., is promoted

from a platform of myths. Here, there

is space for three big myths only.

Myth 1: Aadhaar number is not

mandatory.

This is wrong; Aadhaar has stealthily

been made mandatory. Aadhaar is

explicitly linked to the preparation of

the NPR. The Census of India

website notes that “data collected

in the NPR will be subjected to deduplication

by the UIDAI [Unique

Identification Authority of India].

After de-duplication, the UIDAI will

issue a UID Number. This UID

Number will be part of the NPR and

the NPR Cards will bear this UID

Number.”

The NPR is the creation of an

amendment in 2003 to the

Citizenship Act of 1955. As per Rule

3(3) in the Citizenship Rules of 2003,

information on every citizen in the

National Register of Indian Citizens

should compulsorily have his/her

“National Identity Number.” Again,

Rule 7(3) states that “it shall be the

responsibility of every Citizen to

register once with the Local Registrar

of Citizen Registration and to provide

correct individual particulars.” Still

further, Rule 17 states that “any

violation of provisions of rules 5, 7,

8, 10, 11 and 14 shall be punishable

with fine which may extend to one

thousand rupees.”

The conclusion is simple: Aadhaar

has been made compulsory, even

before passing the Bill concerned in

Parliament. Under the project’s

guise, the State is coercing

individuals to part with personal

information; this coercion comes

with a threat of punishment.

PUCL BULLETIN, AUGUST 2011 6

Myth 2: Aadhaar is just like the

social security number (SSN) in

the United States.

There is a world of difference

between the SSN and Aadhaar. The

SSN was introduced in the U.S. in

1936 to facilitate provision of social

security benefits. A defining feature

of SSN is that it is circumscribed by

the Privacy Act of 1974. This Act

states that “it shall be unlawful for

any…government agency to deny to

any individual any right, benefit, or

privilege provided by law because of

such individual’s refusal to disclose

his social security account number.”

Further, federal agencies have to

provide notice to, and obtain consent

from, individuals before disclosing

their SSNs to third parties.

The SSN was never conceived as

an identity document. However, in

the 2000s, SSN began to be used

widely for proving one’s identity at

different delivery/access points. As

a result, SSNs of individuals were

exposed to a wide array of private

players, which identity thieves used

to access bank accounts, credit

accounts, utilities records and other

sources of personal information. In

2006, the Government

Accountability Office noted that

“over a 1-year period, nearly 10

million people – or 4.6 per cent of

the adult U.S. population – discovered

that they were victims of some form

of identity theft, translating into

estimated losses exceeding $50

billion.”

Following public outcry, the President

appointed a Task Force on Identity

Theft in 2007. Acting on its report,

the President notified a plan:

“Combating Identity Theft: A

Strategic Plan.” This plan directed

all government offices to “eliminate

unnecessary uses of SSNs”

andreduction and, where possible,

eliminationof the need to use SSN

to identify individuals. It’s quite the

contrary in India. According to

Nandan Nilekani, Aadhaar number

would become “ubiquitous”; he has

even advised people to “tattoo it

somewhere,” lest they forget it!

Myth 3: Identity theft can be

eliminated using biometrics.

There is consensus among scientists

and legal experts regarding the

limitations of biometrics in proving

identity. First, no accurate

information exists on whether the

errors of matching fingerprints are

negligible or non-existent. A small

percentage of users would always

be either falsely matched or not

matched at all against the database.

Second, errors of matching would

stand significantly amplified in

countries like India. A report from4G

Identity Solutions, contracted by

UIDAI for supply of biometric

devices, notes that:

“It is estimated that approximately

five per cent of any population has

unreadable fingerprints, either due to

scars or aging or illegible prints. In

the Indian environment, experience

has shown that the failure to enrol is

as high as 15 per cent due to the

prevalence of a huge population

dependent on manual labour.”

A 15 per cent failure rate would mean

the exclusion of over 200 million

people. If fingerprint readers are

installed at Mahatma Gandhi

National Rural Employment

Guarantee Scheme (MNREGS) work

sites and ration shops, and

employment or purchases made

contingent on correct authentication,

about 200 million persons would

remain permanently excluded from

accessing such schemes.

The report of the UIDAI’s “Biometrics

Standards Committee” actually

accepts these concerns as real. Its

report notes that “fingerprint quality,

the most important variable for

determining de-duplication accuracy,

has not been studied in depth in the

Indian context.” However, this critical

limitation of the technology has not

prevented the government from

leaping into the dark with this

project, one whose cost would

exceed Rs.50,000 crore.

It is said that the greatest enemy of

truth is not the lie, but the myth. A

democratic government should not

undertake a project of the magnitude

of Aadhaar from a platform of myths.

The lesson from the U.K. experience

is that myths perpetrated by

governments can be exposed

through consistent public

campaigns. India direly needs a

mass campaign that would expose

the myths behind the Aadhaar

project.

Courtesy: the Hindu 17 July 2011

(R. Ramakumar is Associate Professor

with the Tata Institute of Social

Sciences, Mumbai.)   􀀀

New Delhi, July 19, DHNS: The

Supreme Court on Tuesday

constituted a committee to monitor

the rehabilitation of sex workers and

directed all states and Union

Territories to determine those who

are willing to join the mainstream and

provide them help to lead normal

life.

Maintaining that a sex worker can

live with dignity only if she earns a

News :

SC Sets up Panel for Sex Workers’ Rehabilitation

livelihood through technical skills

rather than by selling her body, a

bench of justices Markandeya Katju

and Gyan Sudha Mishra also asked

the Centre and states to come out

with suggestions and

recommendations for improving the

condition of sex workers within two

weeks.

“We may reiterate that this exercise

has been done because the word ‘life’

in Article 21 of the Constitution of

India has been interpreted in several

decisions of this court to mean a

right to ‘life with dignity’.

“It is only if a sex worker is able to

earn a livelihood through technical

skills rather than by selling her body

that she can live with dignity, and

that is why we have requested all

the states and the Centre to submit

schemes for giving technical training

PUCL BULLETIN, AUGUST 2011 7

to them,” the court said.

The panel set up by the government

would comprise senior advocates

Pradeep Ghosh and Jayant

Bhushan and representatives of

three NGOs. The court passed the

direction while dealing with a petition

relating to improving the condition of

sex workers.

The panel?will suggest ways and

measures to prevent human

trafficking, rehabilitation of those

willing to leave what is considered

one of the oldest professions and

provide better amenities to those

willing to continue with their status.

The court also directed that

representatives of the Centre and all

state governments should attend

meetings to be fixed by the panel’s

chairman from time to time.

“Since this is a continuing

mandamus, we will focus on Delhi,

Kolkata, Chennai and Mumbai as

this problem of sex workers is more

acute and on a much larger scale in

these metropolitan cities. However,

this does not mean that we will not

take up other cities into

consideration,” the court said.

Courtesy: Deccan Herald, 19 July

2011  􀀀

 

 

PUCL West Bengal Observed Anti-Emergency Day

West Bengal PUCL:

PUCLWest Bengal Observed Anti-Emergency Day

democracy, no development can

takes place. On the other hand

without basic development of the

living standard of the 90%

countrymen, Democracy and Human

Rights could not be restored. He also

said that since 1948 the violation of

human rights took place in our

country by displacement of the

people without rehabilitation in the

name of development and Public

interest. In 1948 at the time of laying

foundation stone at the site of

Hirakud river valley project, the first

prime minister of India Jawaharlal

Nehru delivered speech to the

residents of this area saying” If you

have to suffer, you should do so in

the interest of the country”. Noted

Gandhian Morarji Desai also

threatened to the pong dam oustees

that ‘We will request you to move

from your houses after the dam

comes up. If you move, it will be

good. Otherwise we shall release the

waters and drown you all’. Citing

these instances, Mr. Mukherjee

expresses grave concern where

agricultural lands are being snatched

away from the farmers for

PUCL BULLETIN, AUGUST 2011 3

Book Published on Binayak Sen

Recently PUCL West Bengal has published a book in Bengali titled ‘Kala Kanoon O Dr. Binayak Sen’ written by

its State Convener, Ananda Mukhopadhyay. The Book was dedicated to Smt Anasuya Sen, the mother of Dr.

Binayak Sen. The book consisting of several writings including ‘who is Dr. Sen’, ‘Dr. Sen : Victim of State

atrocity’, and ‘UAPA : Fundamental rights is at stake’.

Writings of Justice Rajindar Sachar, Prof. Amartya Sen, Mr. Ram Jethmalani, Mr. Soli Sorabjee, and Press

statement issued by All India PUCL and West Bengal PUCL took place in the annexure part of this book. This

book is available with the state office of PUCL West Bengal. -Ananda Mukherjee, Convener, PUCL WB   􀀀

A public meeting was organised

under the auspices of Peoples Union

for Civil Liberties (PUCL) and Lok

Andolan Gujarat at Kocharab

Ashram, Ahmedabad under the

chairmanship of Prakash N Shah.

The programme took a serious note

of the fact that the people are feeling

suffocated owing to the emergence

of undeclared emergency, which is

taking away the democratic and

human rights of the citizens. The

following resolution was passed.

In Gujarat, the process of

globalisation and liberalization

together with mentality of so called

nationalism are disrupting the regime

of law and order. On the other hand,

the victims of communal riots and

those displaced by the development

Gujarat PUCL:

Anti- Emergency Programmes held in Ahmedabad and Baroda

are waiting for rehabilitation. People

at large feel distressful against

problems like price rise,

unemployment, commercialisation of

education and health service. As if

this is not enough, a new kind of

emergency has been added by

depriving the people in the grab of

development. In the name of

development and industrialization.

Farm land of thousands of farmers

are snatched away and given in

largesse to the industrialists. The

fertile and high value land is being

acquired by the government in

Gujarat and country at large in the

name of SEZ or some other industry.

In this situation, wherever and

whenever people voice their

resentment then Govt. has a

tendency to neglect and crush such

protests. By disregarding peoples

basic needs and their fundamental

rights, trumpets of development are

being blown. Today, the women are,

at every stage, being made victims

of rape, women’ feticide, insecurity,

sexual harassment, humiliation,

unequal wages etc. in some large

number of regions there problem of

drinking water, and elsewhere the

question of their respect and equality

and at the other lack of security in

their day to day life.

In the state, the Government

cunningly created a situation of

undeclared emergency. Anti people

policies framed by it are shattering

the lives of the people. In regard to

rights of the labourers, poor farmers,

industrialization and real estate

business without rehabilitating the

displaced persons or giving them

sufficient compensation, which

resulted 13.1 lack tones overall food

shortages in the last five years in

West Bengal. He also spoke against

all the black laws including UAPA,

AFSPA, and Chhattisgarh Special

Public Security Act citing them

undemocratic and unconstitutional

and urged the audience to support

the movement of PUCL demanding

immediate repeal of all draconian

laws in our country.

Another speaker noted sociologist

and veteran member of PUCL Dr

Sajal Basu claimed that death due

to hunger and malnutrition is the

basic problem of our country in

present times whereas the govt

claimed 9% growth in GDP. It is very

shameful when food grains are left

for rotting in the godowns even after

the direction of Hon’ble Supreme

court of India to distribute it within

the poorest of the poor. Dr. Binayak

Sen has been working on these basic

issues from grassroots level at

Chhattisgarh from long days before,

he said. Where 78 % people of India

still lives with income of less than

twenty rupees per day, is it called

development at all, he asked.

Noted anthropologist Dr. Pashupati

Prasad Mahato started his speech

narrating how the soil of the sons

(tribals) have been exploited in this

country since before independence

period and were forced to migrate to

the tea gardens of North Bengal as

low wage labour from different parts

of Bengal mainly from Purulia,

Bankura and Midnapur, how the tribal

people are still living in hunger of half

fed condition every day. The cultural

ragging as well as cultural

exploitation is still continuing upon

them as the result of casteism. How

many adivasis have become V.Cs

in the different universities in West

Bengal since independence, he

questioned. Besides his speech Dr.

Mahato hypnotized the audience by

singing several tribal songs popularly

called “jhumur” which depicted the

day to day problems of livelihood,

sadness, exploitation and torture

upon the tribal people of jungle mahal

from the time of indigo plantation,

as narrated in the famous novel

“Nildarpan” written by Dinabandhu

Mitra. The programme was presided

by Mr. Samarjit Banerjee. A vote of

thanks was given by the joint

convener of the West Bengal PUCL

Mr. Amlan Bhattacharjee.

Ananda Mukherjee, Convener PUCL

West Bengal   􀀀

Control of the Cyber Space and Civil Liberties in the Country

Control of the Cyber Space and Civil Liberties

in the Country

Pushkar Raj

India is a democratic country.We pride in the best protections provided

to our freedoms in our constitution comparable with the citizens of any

democracy in the world. However, lately these liberties have come under

severe strain due to various acts of the Indian government. One of the

actions that has the potential to restrict our right to freedom of thought and

expression is recently notified rules under the Information Technology

(Amendment) Act, 2008. The rules came into force in mid April 2011.

When the original Act (enacted in 2000) was amended in 2008, the

informed observers had apprehended that it might pose a serious threat to

freedom of thought and expression of the Indian citizens. However one

hoped that the rules would create a fine balance between the individual

freedom and cyber security concerns. That hope now stands dashed as

impact of the IT rules on the internet users become clearer.

Cyber communication is carried out through the intermediaries.

Intermediary means any person who on behalf of another person receives,

stores or transmits any information or provides any service with respect to

that information. It includes telecom, network and internet service providers,

web-hosting services, search engines, on-line payment and auction sites

and cyber cafes. In a way it is the whole gamut of cyber world.

Thus if you wish to regulate and strangulate the cyber communication

exercise the control over the intermediary. It can be done by putting them

under a liability that they debar certain categories of information which

might be open to subjective interpretation. If the intermediaries are under

coercive instructions not to host a huge body of information, then millions

who generate that information exercising their rights of freedom of thought

have no meaning for it. It is as good as not having that right if one is not

allowed to exercise it fully through its dissemination. That is exactly what

would happen with implementation of the above mentioned I T rules.

Under the new IT rules the intermediary is put under obligation to

withdraw any information that is grossly ‘‘harmful, harassing, blasphemous,

defamatory, obscene, pornographic, paedophilic, libellous, invasive of

another’s privacy, hateful, or racially, ethnically objectionable, disparaging,

relating or encouraging money laundering or gambling, or otherwise unlawful

in any manner whatever.’’ This is not only an exhaustive but also an extremely

subjective list because these terms have not been defined under the rules.

In fact one would argue that they cannot be defined conclusively. What is

obscene for X might be artistic for Y. So legally speaking, if you write an

article condemning ban on same gotra marriages dictated by some khap

panchyats you might be accused of indulging in ethnically objectionable

PUCL BULLETIN, AUGUST 2011 2

writing; if you put to question Sai

Baba’s status to godhood you might

be charged with defamatory writing;

if you document seedy aspects of

life of a public figure it could be

invasion of his privacy; even calling

for reforms in some religions could

be termed blasphemous.

According to the rules notified

by the government, contents that fall

in the above mentioned category

must be removed by the intermediary

within thirty six hours upon its own

knowledge or at being pointed out

by the ‘affected person’. This affected

person could be anyone on earth. In

other words, the rules are worse

than a king’s dictate in medieval

times who one thought would give

the other party at least a hearing

before issuing an order!

What are the implications of

such rules for a burgeoning cyber

connectivity that has shaken

dictatorships in the Middle East and

connected people on issues like

corruption and violence against

women at home? What is going to

be the fate of millions of blogs and

campaigns through face book? What

will happen to the life support of

democracy- free movement of ideas,

debate, dialogue, understanding and

consensus- on vital social, economic

and political issues? How does one

reconcile the new reality with the

fundamental right of freedom of

thought and expression guaranteed

under Article 19 of the constitution?

And at the individual level does not

that convey a message: ‘Do not think

or write out of the box. Get into a

pattern, conform to prevailing mores

and values; become a robot and one

dimensional human being!’

Besides, there is the question

of individual privacy that is always

prized by the human beings. The

rules invade it by mandating that the

intermediary must provide

information on an individual or extend

any such assistance to government

agencies on a request in writing who

are lawfully authorised to prevent,

detect, investigate, prosecute cyber

security incidents or any other

offence. This obligation to part with

information on an individual is a

serious breach of law of the land as

established in the Supreme Court

judgment in People’s Union of Civil

Liberties (PUCL)Vs. Union of India

(UOI) and Anr., (1997)1 SCC 301.

The court had held that the telephone

tapping is a serious invasion of an

individual’s privacy and had

prescribed guidelines for that which

includes authorization from a high

level official- union or state home

secretary.

So while your phone

conversation might be tapped after

being authorized by a top government

functionary, but any sub- inspector

of police might, in the name of

investigating an offence, go thorough

your hundreds of emails or ask for

details of your phone calls from the

intermediary on a simple request.

This means that while the

government itself wishes to intercept

or monitor a citizen’s privacy it will

follow the procedure, but it would not

do so when it would take almost the

same information from an

intermediary! Now this is really

contradictory, guile and

unacceptable.

At a larger level this

contradiction is at the heart of Indian

society and polity today. While we

celebrate procedural democracy with

periodic elections we have been

cutting on its substantive part in our

public life. Public assemblies and

protests are becoming rare. When

they are organized they are brutally

broken up sending the message

across the country that they are not

allowed anywhere. Similarly cyber

world is also sought to be monitored

and controlled. New I T rules are

enough indication of such a well

thought out policy. We must,

however, not accept it sitting silently.

We must spread awareness on

them and garner enough public

support against these rules so that

they are forced to be abandoned.

That is the only way to preserve our

constitutionally sanctioned

freedoms. 􀀀

Is the Law on Sedition Compatible with Democracy ?

(Justice) R. A. JAHAGIRDAR IS NO MORE

(Justice) R.A. Jahagirdar, a former judge of the Bombay High Court,

well-known Radical Humanist, civil libertarian and exponent of democratic

and secular values breathed his last in the morning on 23 February

2011. The whole PUCL family condoles the demise of its 82 years old

dedicated and committed leader, friend and great scholar.

- Mahi Pal Singh, Secretary, PUCL.

Inside:

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Is the Law on Sedition Compatible with

Democracy? – Prabhakar Sinha (1)

PRESS STATEMENTS, LETTERS AND NEWS:

Minutes – National Secretariat Meeting (2);

Appeal to the Maoists to Release

Abducted Collector (3); Press Release -

PUCL Condemn Encounters in Kashipur

(6); A.P. PUCL: (1) Summary of the

Symposium on Land Rights (7); (2)

Demand Release of Binayak Sen (9);

Dumka PUCL: Condolence Message on

Surendra Mohan (11); Seema Azad’s Letter

(12); Protest Seminar against the Arrest

of Seema Azad (12); West Bengal: (1)

Street Corners by the PUCL (12); (2) Stop

Violence and Murder Politics (13); MASUM

Condemns Binayak Sen Conviction (14);

Impressive Rally In Raipur (15); Rajasthan

PUCL Demanding Release of Binayak Sen

(15); Gujarat PUCL: PUCL Delegation

Meets the Governor (16); Brief Reports

on Encounter Killings’ in Orissa (17).

ARTICLES, REPORTS & DOCUMENTS:

Mere Membership of Banned Outfit Won’t Attract

Criminal Action: Court – J. Venkatesan (4);

Karnataka PUCL: PUCL Response to

Somashekhar Commission Findings (5);

Basangamali Encounter (5); Surendra Mohan:

An Obituary – Prem Singh (9); Police Harassment

to an Educational Institution (13); Human

Rights Janjagran Meeting (14); The Losing

Is the Law on Sedition Compatible

with Democracy?

Prabhakar Sinha

The registering of a case of sedition against Ms Arundhati Roy, Syed

Ali Gilani etc. for their speeches made at a convention on ‘Azadi the Only

Way’ for Kashmir is bound to appall all who are committed to the core

values of democracy and human rights. It hardly makes any difference that

the case has been registered on the direction of a court and not by the

police. So long as this anti- democratic law, which is the legacy of the

colonial British government, is retained by the Republic of India, the courts

are bound to implement them. However, a plain reading of the provision on

sedition (u/s 124A of the I.P.C.) makes it clear that such laws have no

place in a democracy. It provides that ‘whoever by words, either spoken, or

written, or by signs, or by visible representation, or otherwise, brings or

attempts to bring into hatred or contempt or excites or attempts to excite

disaffection towards the government established by law in India, shall be

punished with imprisonment for life, to which fine may be added’ It is obvious

that it is only an authoritarian government -foreign or local- which can make

excitement or disaffection against a government a criminal offence. Under

a democratic system, it is the normal function of the opposition parties to

create disaffection against the government with a view to oust it from power

by mobilising popular support and replace it if possible. Even groups and

individuals aggrieved by the policies of a government have the right to create

public opinion against it and campaign to dethrone it. The whole process

of opposing the existing government in a democracy is to create disaffection

against it by drawing attention to its short- comings like corruption, sell

out to certain interests – Indian or foreign-, incompetence or alleged antipeople

character. Slogans like ‘Sadi-gali Sarkar ko Ek Dhakka Aur Do’

(Give a final push to this rotten government’) ‘Singhasan Khali Karo ki

Janta Aati Hai (Vacate the throne, the people are coming’- i.e., to occupy

it) are out and out acts of sedition under the present law (u/s 124A).

The description of the elected government as ‘ the government

established by law in India ‘ in the provision also leads to the inescapable

PUCL BULLETIN, MARCH 2011 2

conclusion that the draconian

provision was enacted by the colonial

government and has been retained

by the rulers of the Republic of India

to suppress the voice of dissent. In

fact, elsewhere in the Indian Penal

Code (I.P.C.), the words government

of India or the State governments

occur to refer to the Union or State

Government instead of ‘government

established by law in India’ giving

credence to the view that the

provision has been blindly retained.

Similarly S 125 of the I.P.C. has been

retained which makes’ waging war

against any Asiatic Power in alliance

with the Government of India or at

peace with Government of India’ a

criminal offence punishable with

imprisonment for life . The reference

to the Asiatic Power in alliance with

or at peace with the government of

India is the relic of the Imperial British

rule when the Imperial Government

formed alliances against its rivals

Powers. Today, there are no entities

known as Asiatic Powers and India

is not in alliance with any such

power. India, after independence, has

been one of the chief architects of

the Non-aligned Movement and

continues to be at peace with all

countries. The repressive relic of the

Imperial British Government

continues to be retained by the rulers

of democratic India and may be

misused also.

The law in its present form also

obliterates the distinction between

the State and the Government. It is

an indisputable fact that the State is

permanent and sovereign, but the

government is neither sovereign nor

permanent. The Indian State would

continue to exist while the

government may go on changing.

Thus, to oppose a government,

attack its policies and carry on a

campaign to alienate the people from

it to oust it by legitimate means is

the right of a people in a democracy,

and it cannot be misconstrued as

sedition.

Thus, the government or some

people may consider Ms Arundhati

Roy’s view that Azadi is the only

solution of Kashmir problem

seriously flawed and for her view is a

nail in our democracy’s coffin apart

from being illogical. How does

speaking in favour of Azadi for

Kashmir attract S 124 A of the I.P.C.?

Is it an act of bringing the Government

of India into hatred or contempt or

creating disaffection against it? To

support Azadi for Kashmir -rightly or

wrongly- is only to oppose the

Kashmir policy of the Government of

India which every Indian has the right

to do. It is a problem created by the

rulers who not only failed to win the

mind and the hearts of the peaceful

people of Kashmir but have alienated

a large number of people and created

the present mess. After creating this

problem, they have no moral or legal

right to ask the people not to discuss

it and mind their own business. After

all, it is our brethren- Kashmiris and

the others- who are dying there, it is

our resources which are being used

and misused there, and it is our heart

which bleeds at every death of an

innocent Indian on either side in this

domestic conflict, and it is our right

and also the duty to join the search

for a solution without any threat from

the government. In a democracy, the

people have the right to discuss and

their representatives the right to

decide.

The anachronistic imperial law

on sedition is a direct attack on our

freedom of speech and expression

guaranteed by the Constitution and

should be scrapped forthwith.

 

 

Lokpal Bill is a Farce on the Public

Former chief justice of Delhi High

Court Rajindar Sachar says that the

government draft of Lokpal Bill, 2010

is a farce on the public.

Writing in The Economic Times,

Sachar says, “it is shamefully

toothless and just meant to give a

false reassurance to the people that

the government is serious in its fight

against corruption”

In his article, Sachar says,

“headlines in the media, the constant

talk of how deep corruption has sunk

in our body politic and the nefarious

role played by ill-gotten contributions

to political parties is a spectre,

haunting the public all the time.

Lokpal Bill is a Farce on the Public

Rajindar Sachar

“But why is the government still not

persuaded to seriously consider

enacting an effectively genuine

Lokpal legislation to deal with this

menace of corruption? If the draft of

the Lokpal Bill 2010 is any indication,

it would appear that a realisation of

grave urgency is still absent in the

government. No one is suggesting

that an evil like corruption in public

life can be eliminated merely by

legislation.

“A clean public life, the standards

and character of political parties have

to be built on grounds of moral

conscience and public pressure.

Corruption in public life can only be

eliminated when, in the words of

Mahatma Gandhi, “a small body of

determined spirits fired by an

unquenchable faith in their mission

can alter the course of history”.

“But we must face the reality. Such

spirits are rare to find and we ordinary

mortals must make an effort to find

some mechanism which may

hopefully be able to keep in check

the demoralisation and corruption in

our public life. One such mechanism,

that almost all governments since

1996 have been promising but done

nothing about, is the institution of the

Lokpal, an independent body to

enquire into the lapses and

PUCL BULLETIN, MAY 2011 5

complaints against legislators and

MPs, both at the Centre and the

states.

“The government has at last

proposed the Lokpal Bill 2010, but

unfortunately it fails even to be a

cosmetic exercise to fight corruption.

It is shamefully toothless and just

meant to give a false reassurance

to the people that the government is

serious in its fight against corruption.

“The Lokpal is a three-member body

consisting of a chairperson who is

or was a former Chief Justice or

judge of the Supreme Court and two

members who are or have been

judges of the Supreme Court or Chief

Justices of a high court. But

restricting it to judges is too narrow,

and outstanding social scientists or

academicians should also be

eligible, and it should be a five

member body.

“The jurisdiction of the Lokpal under

Sec 10 apparently covers the PM,

ministers and MPs. But the

hypocrisy is exposed when at the

same time it nullifies the same by

providing that the Lokpal shall not

enquire into any allegations of

corruption against any member of

either House of Parliament unless

the recommendation of the Speaker

or Chairman of Council of States (as

the case may be) is received by it.

“Not only that but insultingly, even

when the Lokpal finds that any of

the charges has been proved,

against MPs, all he can do is to send

a report of his findings to the Speaker

and Chairman of the Council of

States, and they alone will

determine what action is to be taken.

“Of course, the presiding officers

have to place the report before both

the Houses of Parliament. A formal

courtesy is to be done by informing

the Lokpal as to what action is taken

or is proposed to be taken, which

may include the rejection of the

findings of the Lokpal.

“This reduces the authority of the

Lokpal to lower than that of a

magistrate whose order the highest

in the land, including the President,

has to comply with.

“The sheer effrontery of the law

ministry in proposing such an

insulting provision is a direct

negation of the institution of Lokpal.

What should have been done was to

provide that the establishment of

guilt by the Lokpal would be treated,

in the same manner as Sec 8 of the

Representation of the Peoples Act,

1951, as a disqualification from

contesting elections for a period of

six years.

“Further, the Lokpal should have

been authorised to impose a penalty

for the recovery of any amount found

to have been lost by the action of

legislators or ministers. The Lokpal,

under Sec 11, is also forbidden to

enquire into any memo of a

complaint if it is made after five years

from the date when the offence is

alleged to have been committed.

“Has the government realised the

absurdity of providing a limitation

period in such complaints, which, if

they were to be tried under the

Prevention of Corruption Act, would

have no limitation bar, because there

is no limitation for initiating

proceedings under criminal law

where the punishment provided is

more than three years?

“Also has the UPA government

considered that if a five-year period

were to be provided, by the same

logic would they not be barred from

holding an enquiry into the 2G scam

of 2001-02 during the BJP

government (which by all standards

should be held along with the enquiry

into the 2G scam against Raja)?

“No judge with even a modicum of

self-respect will accept such a

demeaning, low grade rate post – the

inevitable result would be that the

Lokpal Bill will collapse — an event

that legislators have always desired.

So it is goodbye to cleaning the

political dirt, notwithstanding the high

sounding calls by all the

governments.

“Regrettably, cynics may be right

when they say ‘who cares’ if, in the

process, some dedicated Gandhians

fighting for integrity in public life fast

unto death against this unforgivable

lapse by the government.”,

concludes Justice Sachar.