The lost opportunity?: Anti rape bill

The Indian media, the social activists and the mainstream political parties like the Congress, CPI (M) & BJP are on the verge of losing a golden opportunity to stem the rising trend of rapes and sexual assaults against women; something that the public opinion has been strongly and overwhelmingly in favour of in the aftermath 2012 December Delhi gang rape case. This statement might be surprising given that the “anti rape” bill is being discussed in its draft form today with a view to do just that and has been discussed widely by the above mentioned groups in an unprecedented discourse about policy in India. The focus of the draft of the so called “anti rape” bill (it is actually Criminal Law (Amendment) bill), that gained momentum in the aftermath of the 2012 December Delhi gang rape case & the subsequent Justice Verma committee (that was tasked to look at existing legislations relating to women’s safety and suggest changes to check crimes against women) has been on specifying & defining new offences as well as on amending criminal laws to provide for greater punishment for sexual violence. The problem with the discourse around the bill as well as government efforts is that even though it quite importantly seek to do the above mentioned it misses a very important aspect of the justice delivery system; that of efficient and effective criminal prosecution to help the rape victims get justice.

The consequences of an inefficient & ineffective criminal prosecution are reflected in the inordinate delays in the trial & completion of rape cases (an average of 10-12 years ; as it is said justice delayed is justice denied) as well the low rate of convictions (averaging approximately 27% nationally) achieved even as an increasing number of rape cases are being registered over the years.

Take for example the status of the progress of rape cases in Delhi. In 2012, the number of convictions out of the 635 rape cases registered in Delhi is a shockingly low figure of 1. As for the rest of the cases, 403 were facing trials, investigations were pending against 348 and two others were discharged.

Consider the statistics on a pan India basis as given in the illustration below courtesy Wall Street Journal

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Even as recently as the last two weeks, the Minister of State for Home Affairs in Rajya Sabha quoting National Crime Records Bureau said in a written reply about the trend of rising rape cases even as the convictions rates remained low and stagnant attributed the reasons to

several factors like inadequate and inefficient investigations by investigative agencies, deficiency of proper investigative infrastructure, prolonged judicial process etc

The above two outcomes of prolonged judicial process & low conviction rates are the symptoms of a deeper problem; that of a inefficient criminal prosecution system that is not independent and effective which has not been addressed as part of the bill that will be taken up today.

A 2006 report by Centre of Civil Society highlights similar problems taking the case of Delhi.

“The appointment of prosecutors is also a grey area; politicians, bureaucrats and big lawyers heavily influence the recruitment process. Even though there are many regulations regarding the appointment process, these are often overridden by the Executive, which would much rather have its preferred choices as ad hoc appointees. Prosecutors should be insulated from political pressure and an incentives-based performance approach should be emphasised. Internal audit mechanism to evaluate the standards on which the case was fought should also play a significant role in increasing the overall quality of prosecution.”

The anti rape bill is looking at changes in the criminal law by amending Indian Penal Code (IPC), Code of Criminal Procedure (CrPC) and the Evidence Act. However, none of the proposed amendments in CrPC relate to the aspect of prosecution which is critical to reducing delays in the judicial process and in achieving convictions that will have a deterrent effect on such crimes.

The issue of criminal prosecution has a simple and elegant solution that has been explained by BJD MP from Odisha, Baijayant Jay Panda who has moved a private members’ bill to amend the Criminal Procedure code (CrPC) in a bid to check the alarming trend of criminalization of Indian polity owing to poor criminal prosecution. I am reproducing the relevant text from his article in a business newspaper last month:

“The third would amend the Code of Criminal Procedure to enable independent and effective prosecution.

Furthermore, to ensure that proceedings don’t suffer owing to ineffective or biased prosecution, my third Bill proposes to increase accountability and transparency in the appointment of prosecutors so as to shield them from political interference. Though the Code of Criminal Procedure, as it exists, calls for “consultation” with the judiciary for all appointments to the post of public prosecutor, the requirement has been diluted through amendments in many states. Special public prosecutors are often appointed at the whims and fancies of the government and without adequate reasoning. This is done to suit special interests.

 While commenting on the independence of public prosecutors in India, the Law Commission held in its 197th report that any legislation that permits arbitrary appointment of public prosecutors, without proper checks, would violate Article 14 of the Constitution (the right to equality before the law). Therefore, to ensure free and fair trials in courts, it is vital that the existing provisions of the Code of Criminal Procedure be amended.

My Bill mandates the establishment of a separate Directorate of Prosecution in each state with administrative control over all prosecutors in the state and answerable to the home department. It prescribes “concurrence” with the judiciary for the appointment of prosecutors at all levels. It also sets down an objective criterion to gauge the requirement of prosecutors. The Bill will also require a detailed and written explanation from the government about the reasons for each appointment to ensure transparency in the appointment of special public prosecutors.”

Despite the huge public opinion in favour of providing justice to the victims of rapes and sexual offences in the aftermath of the 2012 December Delhi gang rape case, it will be a tragic waste of the immense amount of emotional and intellectual energies expended by the Indian public if the public discourse and government efforts to amend policy does not eventuate in concrete steps to actually ensure justice for rape victims and create deterrents for such crimes. The media can still take up this issue to ensure that they do justice to their role as watchdogs of the Indian democracy and to play a positive role in the creation of a modern liberal democracy in India. Will it rise to the occasion?

 

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Mass movement needed to arrest the criminalisation of India polity

I wrote about Baijayant Jay Panda, Lok Sabha MP from Kendrapara,Odisha, in an earlier post in connection with his efforts to maintain the freedom of expression of India’s internet denizens. Late last year, he had moved a Private Members’ Bill for the Lok Sabha to consider and review proposed amendments in Section 66A of the Information Technology Act (2000) that would safeguard the right to free of expression in India. Panda is back in the news again; this time he has filed 3 Private Members’ Bills in the Lok Sabha, all closely related to the Representation of the People Act (RoPA),  that if passed will go a long way in the fight against illiberalism in the Indian society and will significantly alter the quality of India’s public life thereby giving the goal of good governance a shot in the arms.

Writing in a business newspaper, Panda rightly diagnoses “the perverse trend of criminalisation of politics and the inability of the criminal justice system to conduct timely and effective prosecution of offenders” as one of the key causes of India’s pathetic standards in public life.

The goal of each one of these three bills in Panda’s own words is thus:

“My first Bill proposes to amend ROPA to remove the exception that allows MPs and MLAs/MLCs to continue in the legislature even after conviction. The second would set up fast-track courts for speedy trial (within 90 days) of criminal cases against all elected representatives. It would bring all MPs, MLAs/MLCs and members of panchayats and municipalities established under the state panchayati raj legislation under the Bill’s ambit. The third would amend the Code of Criminal Procedure to enable independent and effective prosecution.”

In a simple and short article, Panda has managed to bring out the justification for each one of these bills. This article is a must read; not just for its clear, simple and direct approach to attempting to provide a legislative solution to what is at the root of India’s scam a day image, but also to get inspired and find some cheer in today’s corruption ridden gloomy environment brought about by India’s eminent scoundrels who continue looting the country in their capacity of leaders of  political parties, government agencies, government departments and every single public office they lay their sights upon.

Like Panda, I hope that “enough public support can be drummed up, (so that) the government would be compelled to pass legislation to that effect”. It will certainly be a test for the media if they will rise to the occasion and provide the support this bill needs; just as they did with all the attention that was showered on the Lokpal Bill. For my part, I have submitted a Wikipedia page on The Representation of the People Act (RoPA), 1951 that should be available soon pending review. The absence of a Wikipedia page on this very important piece of legislation is surprising given India’s status as the largest democracy in the world. Also, given the serious lack of propriety amongst many of India’s public servants, it is quite surprising to note that there is nothing in India that even remotely resembles a Committee on Standards in Public Life such as the one in UK that serves to “ensure the highest standards of propriety in public life”.

Blood on the train tracks and on successive Railway Ministers’ hands

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If I were to be responsible for the deaths of 10 people everyday and an equivalent number of injuries everyday, I would be simply incapable of looking at myself in the mirror. But not so if I was a shameless, immoral and greedy bureaucrat/politician forever absorbed in the pursuit of power and ill gotten gains as well as protecting own turf; unless of course I happened to have the moral compass and integrity of a Lal Bahadur Shastri who eventually resigned from his job as Railway Minister in the aftermath of two separate train accidents within 3 months of each other that claimed 256 lives and wounded several more.

The news about the death of two children who were hit by an express train while attempting to cross railway tracks before yesterday’s Railway budget got me thinking about Mumbai’s local train network and daily deaths and injuries on its tracks. The abovementioned figure is the daily average of 10 deaths and injuries on tracks over the last 10 years. These figures were revealed after RTI activist Chetan Kothari sought details from the Government Railway Police (GRP).

The data from the GRP has revealed that on an average more than 3,500 people die on tracks every year in various mishaps like falling in gap of train, dashing to pole, crossing lines and fell down from running train. The death toll between 2002 and 2011 (Nov) has reached 36,152.

The number of injured is also in the same range with about 4,000 commuters getting injured and the total number of injured is 36,688.

Among the various incidents, falling from train and line crossing are the top killers, followed by dashing to railway pole and falling in gap of platforms.

Back in 2003, looking at the huge number of railway deaths (5513) in a single year of 2002-03, Dr. Sarosh Mehta with support from Centre for Enquiry into Health & Allied Themes (CEHAT) had filed a PIL in the Bombay High Court. The court’s order apparently hasn’t been heeded which would explain the continued high rates of deaths and injuries on tracks.

A significant proportion of these deaths and injuries on tracks are caused by a) people trying to cross the tracks as well as b) by falling off the trains due to overcrowding. The solution to people crossing tracks would be to ensure user friendly foot over bridge as well as effective policing of these to avoid misuse. The solution to the problem of overcrowding would be to increase the passenger carrying capacity of the trains as well as optimize the train timetable using cyclic timetables. Why is it so difficult to plug these two problems when the solutions to these are quite clear?

This would require a management focus on the core operations of running an efficient, safe, cost effective railway service and that’s something that these worthies are not keen upon.  One would expect that the management time on such a poorly maintained railway service with a terrible safety record would be spent on taking care of these issues? But no, going by yesterday’s budget speech by the Railway minister, such precious management time will be instead diverted towards “enhancing passenger/rail users’ amenities” by way of setting up six more Rail Neer bottling plants!! Why would a government rail utility company be interested in setting up bottling mineral water plants in the name of passenger amenities when its passengers are dying on the train tracks in thousands yearly is beyond my comprehension. When there are already so many established mineral water bottles in the private sector, why should a government rail utility get into this business? Besides, shouldn’t the responsibility of providing safe, clean drinking water to people be the responsibility of government’s water utility company?

It is a sad state of affairs when it comes to passengers’ safety and security (see my post on this here) on Mumbai’s locals. The promising aspect is that there are people like Samir Zaveri and Dipak Gandhi supported ably by NGOs like Moneylife Foundation who are working on convincing the powers that may be to take a first step in reducing the overcrowding on Mumbai’s local trains. Please go sign the petition here. But before that go and take a good look at those who have blood on their hands by virtue of gross negligence and insensitivity on their part to solve a well defined problem with clear cut solutions.

A liberal politician of India: Baijayant Jay Panda

Baijayant Jay Panda is an Indian parliamentarian from the Biju Janata Dal. His profile on his website reads thus:

“Elected to the 15th Lok Sabha from Kendrapara, Odisha on 16th May, 2009. Baijayant “Jay” Panda was elected to Upper House twice from Odisha and was leader of the Biju Janta Dal (BJD) in the Upper House.He is among the new breed of politicians who are redefining Indian Politics”

Even if he says it so himself, I believe he definitely is “among the new breed of politicians who are redefining Indian Politics”. For one thing, he has an active twitter presence (most Indian politicians do not even deign it worthwhile to have a twitter presence; leave alone an active one) and that has been largely my basis for forming an opinion of him. His tweets are fairly witty & lighthearted for an Indian politician. Also his comments and interactions on twitter reflect an ability to engage in discussions; something that the average Indian politician is loathe to, instead being ever ready to deal in rhetoric.

I didn’t know much about Baijayant Panda until about 2 weeks ago when I began to follow him on twitter. But a tweet of his today made me realize that he is a key leader in ensuring freedom of expression on the internet in today’s illiberal Indian society.  The screenshot of the tweet is as below:

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Now, Section 66A of the Indian Information Technology Act, (2000) has serious implications for freedom of expression on the Internet in India. The same has been discussed widely. Section 66A of India’s s Information Technology Act, (2000) contains draconian provisions that can be misused and taken advantage of by illiberal elements of Indian society which can lead to deleterious effects on the future of an open society in India. The following is an extract from the IT Act (2000):

Section 66A:  Any person who sends, by means of a computer resource or a communication device,—

(a) any information that is grossly offensive or has menacing character; or

(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently by making use of such computer resource or a communication device; or

(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, shall be punishable with imprisonment for a term which may extend to three years and with fine.

Coming back to Panda’s key role in fighting internet censorship; he had initiated a private member’s bill seeking amendments to the Section 66 A of the IT Act, 2000. A private member’s bill is described as below on Wikipedia

A member of parliament’s legislative motion, called a private member’s bill or a member’s bill in some parliaments is a proposed law introduced by a member of a legislature who is not acting on behalf of the executive government.

A brief and somewhat discouraging summary of the performance of such bills is reproduced below from Wikipedia

Of the 300 odd Private Members’ Bills introduced in the 14th Lok Sabha, barely 4% were discussed; 96% lapsed without even a single debate in the House. Till date, Parliament has passed 14 Private Members’ Bills. Six of these were passed in 1956 alone and The last Private Members’ Bill passed by Parliament was ‘The Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Bill, 1968’ that became an Act on 9 August 1970. No Private Members’ Bill has been passed by Parliament since 1970.

Contrast on the other hand, the case of Subramanian Swamy, a widely respected economist, politician and academician who played an important role in prosecuting the key accused in the 2G spectrum scam. A few months ago, I had seen a tweet by Swamy where he threatened to initiate action against some of his twitter critics using provisions of Sec 66A. His comment was thus:

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This episode made me realize that even a distinguished person like Swamy cannot handle criticism and had to resort to threatening action using the draconian provisions of the IT act of India under Section 66 A. Also, that highly respected anti corruption crusaders like Swamy hold no promise as to the future of a liberal India.  That tweet by Swamy left a bad taste in my mouth given its implications of curtailing freedom of expression and its ill effects on a society as well as for the fact that someone with Swamy’s stature would resort to such petty behaviour.

But Swamy’s tweet doesn’t depress me much after knowing that we have a politician like Panda who is actively campaigning against internet censorship. And this definitely bodes well for the future of Indian politics which today unfortunately is dominated by criminals and narrow minded individuals.

Protecting India’s non VVIP lives and transportation infrastructure

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The city of Mumbai has been the target of most number of terrorist attacks in India. Since 1993, 14 incidents of terrorist attacks in Mumbai have claimed 738 lives and injured 2393 people. Almost 40% of the lives lost (280 deaths) were in train & train station related terrorist attacks, where terrorists either planted bombs in Mumbai’s suburban railway trains (also called as local trains) & near train stations (twice in December 2002, January 2003, March 2003, July 2006) or like 26/11 massacred people at Mumbai’s CST train station using a Fedayeen unit. One would expect that considering these incidents, the security routine at the train stations and areas around it would be the strictest given how easily the terrorists have managed to exploit the loose security routine at and around train stations multiple times. But sadly that isn’t the case at all as I narrate below using my experience of traveling in local trains and intercity trains on my recent visit to Mumbai. After my Mumbai visit, I now strongly believe that those who are in charge of ensuring a secure Mumbai (and India) are a bunch of nincompoops. These hare brained worthies have no idea of how to ensure security for those who use Mumbai’s public transportation infrastructure especially its local train network that is used by 7 million people daily .

One would think that after July 2006 and 26/11; there would be some serious security check routine in Mumbai’s local train network. Traveling in a local train for the first time after I left Mumbai in 2005/6, I was shocked to find that there was absolutely no security check routine at all at the train stations!! Furthermore, my experience of intercity train travel from Mumbai Central to New Delhi left me in no doubt that when it comes to ensuring security for the ordinary train using passenger, our security experts expose their incompetence and their insensitivity to protecting ordinary lives unashamedly. They would not bat an eyelid before spending enormous sums of money for purchasing helicopters for VVIPs but will happily let ordinary people expose themselves to serious risks and terrorist threats in the course of using India’s overcrowded and substandard transportation networks.

Let me corroborate my strong words by narrating in detail the abovementioned intercity travel experience. A couple of days ago, I had a couple of my friends drop me off with my luggage at the entrance of the Mumbai Central station while they went and parked the car. Since I had two unwieldy packages in carton boxes (comprising of two Bose speakers and a Yamaha receiver courtesy a generous gift by another friend) and a trolley bag, I fixed up with a porter by the time my friends returned.  The porter put the luggage onto a trolley and wheeled it in. We walked past a waiting area cum restaurant area in front of the platforms. And then as we walked onto our platform the porter got stopped by a policeman and is asked about the owner of the luggage. When the porter points to me, these are the questions that the police asked me:

What’s in these two cartons?

What is your name?

Can you open your trolley bag? (I did) What’s in the newspaper covered box inside the trolley bag? (I answer bone china tea set and the policeman asks me to close the bag while asking me the following questions)

Where are you from?

Where are you going?

After this the policeman let us carry on. Now, these random questions the policeman asked of me along with the cursory check into my trolley bag hardly makes for a strict security check. There is no orderly system of baggage screening to check for explosives or suspicious looking packages before one gets into the station like is done at airports and at Delhi’s metro stations. Apparently in Mumbai, those responsible for passenger security place their faith in the a) policeman’s skills of somehow picking out a terrorist in a huge crowd and b) his interrogation skills which will most expected to cause the suspect to  spill the beans or caught red handed while handling the deadly explosives!!

After this, we made our way to the platform and I board it when the train arrives. After the porter placed the luggage in the compartment, I went out to hang out with my friends since there was still almost half an hour before the train departed. In the meantime, a policeman with a police dog came over and asked me if one of cartons (containing the speaker) was mine and directed me to come inside the compartment so that he could have a look at it. When inside the compartment, he asked me to take the carton down from the side upper seat where it was kept and asked me what it contained. I told him that it contained speakers. He then asked me to open the package to which I said that I would bring the package down for him to examine it but would not open it since it has been packaged for transportation. Then the policeman commanded his dog “Find” to sniff for suspicious contents and then tapped a little too violently at the side of the speaker with a staff that he was holding in his right hand. I exclaimed that the package contained speakers in them that are breakable and he needn’t have tapped them. He then gave me the advice to stay with my luggage and left.

Maybe people in Mumbai find comfort in seeing a policeman with a sniffer dog jump up and down on trains to hunt down the evil terrorist. I, on the other hand, shudder to think of the consequences that might entail if such unsystematic and incomplete security routines are considered adequate. A security routine that disregards a screening procedure on entry and instead relies on a policeman with a police dog to sniff out suspicious packages randomly long after they have been put away for travel is anything but systematic and complete. I am no security expert, but in my view the cause of security would be best served if the so called security experts at the top of the ladder would have put in place a security procedure that involved appropriate screening procedures using metal detectors, explosive detection/X-ray machines along with a sniffer dog placed right after these two at the entrance itself so as to ensure that no suspicious packages would get through in the first place! A simple screening procedure would perhaps involve the dog sniffing at the packages one after the other while the travelers come in a straight line. I bet my bottom dollar that my suggested security routine would thwart terrorists’ attempts in planting explosives at a higher rate than the current official security checks loosely in place.

The local train users in Mumbai must fear for their lives; better still they should agitate against the powers that may be to put in place tight security procedures.

Narendra Modi and the increasing appeal of good governance

Modi at SRCC

Going by the media discussions (both mainstream and social) about the speech that Gujarat Chief Minister Narendra Modi delivered recently at Delhi’s SRCC’s Business Conclave, he probably has put the topic of development, good governance and its benefits at the centrestage of public discourse amongst this country’s youth. In his speech to an audience largely comprising of young college students, Modi laid out his vision for India’s development drawing upon Gujarat’s success in the implementation of various policies related to its agriculture, services & industry sectors. In the speech whose topic was ‘Emerging business models in the global scenario’, his message to the youth was simply thus; go forth and dare to dream about making India a global business & knowledge hub and a supportive government focused on good governance will make every attempt in helping the people realize their ambitions, goals, dreams and their potential. And in that process India will realize its potential to become a superpower.

It is this message that will find resonance with the vast majority of progressive youth who have hitherto found themselves being denied even the basic amenities on account of Government indifference and apathy, let alone avenues and potential opportunities that are available to their counterparts in the developed world. And furthermore Modi asserts that all of this is achievable as has been amply demonstrated in Gujarat “with the same laws, same rules, regulations and same people”.  In my view, it is this statement of his that will potentially shape the development discourse and eventually increase the demand for good governance across India.

Let’s look at the second part of that statement first; that is of achieving good governance in Gujarat with the same type of government employees found elsewhere in the country. Modi’s implementation of ‘minimum government and maximum governance’ model would depend heavily on an efficient public service delivery mechanism. Now, efficient public service delivery is a concept largely unknown in India where public servants see themselves as serfs before whom people must supplicate to get those services that they are entitled to. Ensuring a citizen focus in government’s service delivery then is no mean achievement on Modi’s part when elsewhere in India, citizens routinely suffer owing to public sector employee apathy.

Let me use a personal example to highlight how even a decently educated citizen of this country feels when faced with the prospect of accessing government services. I remember very clearly when I had to visit the Delhi Passport Office in 2010 to get my passport reissued. The sense of despondency and frustration that I felt is revealed in this Facebook post which I felt even before I visited the Passport office. And these government employees expectedly did not disappoint; the unhelpful and harrowing experience pushed me to use the services of an agent who got the work done smoothly by appropriately greasing the palms of the so called “public servants”.

Govt office FB comment

However, people in Gujarat are not strangers to the idea of an efficient public service mechanism. There, it is a living reality. There are numerous accounts that give both a first hand and second hand account of the manner in which the bureaucracy and the service delivery mechanisms of the Gujarat Government have geared up to meet the citizens’ needs (rather than of the financial wants (read bribe, speed money) of the government employees). It seems that the Gujarat government under Modi has made the government employees actually earn their money by carrying out the principal duty for which they have been recruited for; that of servicing the citizens. In any other state, a government employee probably deems her salary as appearance fees (to the office). Her work related performance fees would of course have to be remunerated in the form of bribes from the public. If it can be done in Gujarat, then over the course of time, people in othjer states will also come to expect a similar quality of public service and increasingly demand for good governance.

Now let’s look at the part about delivering good governance with “the same laws, same rules & regulations”.  Over the last two years, many states in India have implemented or are in the process of implementing what is collectively known as the Right to Public Services legislation. Incidentally, the first two states that enacted this legislation were two other states where governance has vastly improved over the course of the reign of their new chief ministers. The Central Government too is in the process of working out the details of a similar legislation. It is interesting to note that Narendra Modi did not feel the need to enact a similar legislation for making his public service delivery mechanism timely and accountable. It says a lot about Modi’s administrative and leadership capability to be able to deliver good governance while directing and inspiring a typically insipid, unconcerned & apathetic breed of bureaucratic animal that is the public servant.

The emergence of Narendra Modi at the national level can only have good repercussions for India. Narendra Modi has changed the game of governance in India in as far as it existed in the form of bureaucratic red tapism, tardiness and apathy. Also when it comes to industry-government interface, his speech seeks to spur the vast creative energies of the youth and channel it towards whichever endeavour they wish to undertake. For far too long, the Indian government has come in the way of the unfolding of the natural creative efforts of this country’s citizens; Modi has delivered a message that under him India cannot afford to waste the precious talent of the youth.