DR. JN SHARMA
ADVOCATE
On 11/12/11, Chitta Behera <chittabehera1@yahoo.co.in> wrote:
> Citizens
> Grievance Redress Draft Bill 2011- how far citizen-friendly?
>
> Spurred on by the strident
> campaign of Anna Hazare for a comprehensive anti-graft legislation in the
> shape
> of Jan Lokpal Bill, the Government of India in the Department of
> Administrative
> Reforms and Public Grievances has already made its first positive response
> by
> way of mooting a draft law called Citizens Right to Grievance Redress Bill
> 2011. This draft law along with an overview was placed on the website of the
> said Department w.e.f. 2nd instant for eliciting public response
> receivable by 23rd November 2011. The draft bill, purportedly
> covered under item no.8 (actionable wrongs) of Concurrent List in the
> Constitution
> aims at institutionalizing an administrative mechanism in each public
> authority
> Central or provincial for ensuring time-bound delivery of goods and services
> as
> per the norms laid down in their respective Citizens' Charters coupled with
> appellate authorities at various levels for redressing the public grievances
> arising from any act of violation of the said Charters. Worth recollecting
> that
> Anna Hazare used to describe such a kind of rights based dispensation as the
> major plank of his Jan Lokpal Bill, and in fact, the latest version of the
> Bill
> (2.3) in its Chapter-XIII titled 'Grievance Redressal System' provides for
> the
> authorities and procedures that are required for ensuring a hassle-free
> regime
> of guaranteeing rights and entitlements to the public at large across the
> country. It therefore behoves the informed citizenry at large including the
> campaigners of Jan Lokpal Bill to partake of and contribute to the great
> ongoing debate as to whether and how far the Government mooted Draft Bill
> would
> cater to the pent-up aspiration of multitude of Indians for an easy access
> to
> their multifarious rights and entitlements in respect of public goods and
> services.
>
> While launching the draft bill in
> a joint press meet at New Delhi on 3rd Nov 2011 both Jairam Ramesh
> Minister Rural Development and V Narayanasamy Minister of State for
> Personnel asserted that it is only one component of a package of
> anti-corruption laws envisaged for enactment in winter session of Parliament
> commencing 23rd Nov, others being the Bills on Lokpal, Judicial Standards
> and Accountability, Public Procurement and Whistle Blowers Protection.
> Unlike
> Anna Hazare's original scheme of creating a single, integrated, monolithic
> law for
> addressing to issues of corruption and misfeasance at all levels across the
> State
> in its comprehensive sense of the term, that of the Government seems to
> split
> the whole dispensation into a few discrete, sectoral laws, each dedicated to
> tackle such issues in a specific, citizen-related domain of our
> multi-pillared and
> multilayered polity. From the standpoint of feasibility and optimality, the
> official
> scheme seems to present a better option, no doubt. If we build our
> anti-graft
> regime of governance on this centrifugal model, the lurking anxiety around
> Anna's model that it would vest absolute power in one colossal overlord
> watch-dogging
> the entire system from top to bottom would hold no ground. Yet, there also
> exists a flip side to the Government's model of decentralization, which if
> not remedied
> right now, might throw the entire system out of gear by way of pitting one
> law
> against another, and thereby rendering the existing scenario of
> mal-governance
> more chaotic and unwieldy. Given the preference for the decentralization
> model of
> the Government, what is however required utmost on the part of the latter is
> to
> ensure a seamless coherence and integrity among the host of laws bundled
> into
> the single basket, purported to reform the system of governance as a whole.
> By all
> reckoning, the RTI Act 2005 which being a pioneering statute heralded the
> much
> awaited era of governance reforms and is in place for last six years does
> also
> belong to this basket. The would-be, kindred laws need therefore to fall in
> line with letter and spirit of RTI Act. In a nutshell, the RTI Act 2005
> which
> is on the whole an effective, user-friendly law and proved so by experience
> should serve as the matrix, respecting which the rest of the kindred laws
> need
> to be built up.
>
> The duo of Ministers while
> releasing the draft bill did also vociferate on its semblance to the RTI Act
> in
> terms of structure and procedures. But the moot point arises, is this
> assertion
> correct? A proper answer to this poser necessitates a scrutiny of the basic
> nuances of the Draft bill on grievance redress from the perspective of the
> RTI
> Act. The first and foremost distinction that makes RTI Act a class apart is
> its
> Section 22 providing for its overriding power vis-à-vis the rest of laws and
> instrumentalities of the State including the draconian Official Secrets Act
> 1923, whereas the Section 50 of the Draft Bill taking a contrarian position
> reads, "The provisions of this Act are
> in addition to and not in derogation of any other law for the time being
> in force". This single provision if retained in the would-be Act would
> render
> it vulnerable and ineffective from the day one of its enforcement, since
> there
> are still hundreds of laws in force across the country which not only lack
> in
> any time-limit for the delivery of public goods and services, but also allow
> for discretion to the Ministers and bureaucrats in distributing largesse to
> the
> persons whomsoever they like to oblige.
>
> The next striking difference
> between the two concerns the penalty provision against the errant public
> servants. While Section 20 (1) of RTI Act provides for a fine of Rs.250/-
> per a
> day's delay extending to a maximum of Rs.25,000/- leviable on the Public
> Information Officer proved guilty, Section 45 of the Draft bill merely and
> abstractly says that a 'lump-sum penalty' shall be imposed on the
> 'designated
> officers' and 'grievance redress officers' on account of the 'mala fide
> action'
> on their part and the rate of such penalty shall be 'specified from time to
> time as prescribed in the rules framed under this Act'. As regards the rule
> making power, Section 51 has vested it to the 'appropriate government',
> which
> going by the definition in Section 2(b) means Central Government or State
> Government. But, as everyone knows pretty well, the basic reason behind the
> success story of RTI Act is its clear provision for a specified amount of
> hefty
> fine in addition to the disciplinary proceedings, which drove the concerned
> officer,
> actuated by a fear of penalty, to act more or less as per the mandate of
> law.
> If the power to specify the amount of fine, as envisaged under the Draft
> bill,
> is placed under the Rule making power of the Centre and State Governments
> and
> that too exercisable by them from time to time, it may so happen that a
> Government might not volunteer to specify the amount of fine at all, or
> would
> specify such a ridiculously low amount as to be of no consequence to the
> habitual defaulters among the officers. In fact, as per the Section 7 of the
> recently enforced Delhi (Right of Citizen to time bound delivery of
> services)
> Act, 2011 the defaulting officer is liable to pay only Rs.10/- per day's
> delay,
> maximum amount being limited to Rs.200/-. It is now an open secret that the
> Delhi
> Act has remained, nay, shall ever remain a non-starter precisely on account
> of
> its ludicrous provision around penalty. Thus, if the Central Government
> really
> wants the public servants to deliver the public goods and services timely
> and
> properly as per the citizens charter, the proposed draft law itself, like
> the RTI
> Act, ought to specify a hefty amount of penalty against the errant officer,
> and
> shouldn't abandon this crucial matter to the discretionary rule-making power
> of
> the Centre or States.
>
> As is well known, the RTI Act
> under Section 25 provides for a comprehensive annual report on the state of
> implementation of the Act as prepared by the concerned Information
> Commission to
> be submitted to the Parliament or State legislature, as the case may be, by
> the
> respective Government. It is a wholesome provision in the sense that the
> legislators of country are being kept abreast of the doings or misdoings of
> the
> public authorities in respect of the duties cast on the latter for giving
> effect to the mandate of the concerned law. But, woefully enough, such a
> provision is conspicuously absent from the draft law on grievance redress.
>
> Last but not the least, unlike
> the RTI Act which to its credit is a citizen-friendly law in fullest sense
> of
> the term, the proposed draft law on public grievances, for all its
> pro-citizen
> gestures, accommodates a highly pernicious provision potentially poised
> against
> the appellant citizens vide Sections 23 and 39, which are spaciously
> captioned
> as 'Proceedings before the Commission to be judicial proceedings'. Clothed
> in
> the hard-hitting professional jargons of law, it defies comprehension even
> by
> an average lawyer, let alone the common citizens whom the proposed law
> ironically
> seeks to serve and save. The provision says, all proceedings before the
> Grievance Redressal Commission at Centre or in a State "shall be deemed to
> be
> judicial proceedings within the meaning of sections 193 and 228 of the
> Indian
> Penal Code and the Commission shall be deemed to be a civil court for the
> purposes
> of sections 345 and 346 of the Code of Criminal Procedure, 1973". Precisely
> speaking, Section 193 of IPC provides for 'punishment for false evidence',
> which may extend to 3 years of imprisonment of either description coupled
> with
> an unspecified amount of fine, while its Section 228 provides for punishment
> for
> 'Intentional insult or interruption to public servant sitting in any stage
> of a
> judicial proceeding', which may extend to six months of simple imprisonment
> or
> a fine of Rs.1000/- or both. Coming to CrPC, its Section 345 prescribes
> 'Procedures in certain cases of contempt' that may result in imposition of a
> fine extending to Rs.200/- and in default of its payment, simple
> imprisonment
> for maximum 1 month. Section 346 of CrPC prescribes 'Procedure where Court
> considers that case should not be dealt with under Section 345', which vests
> the Court with the power inter alia to forward the case of an offender to a
> Magistrate, who shall deal with the case, 'as if it were instituted on a
> police
> report'. Under the circumstances, the proponents of the draft bill should
> and
> must explain, against whom such draconian provisions are mooted, if not the
> common citizens, in whose name it has been dedicated.
>
> (Chitta
> Behera, 4A Jubilee Tower, Choudhury Bazar, Cuttack-9, Mobile: 9437577546, Dt
> 12.11.2011)
No comments:
Post a Comment