Just to clarify, this post is neither about the demerits of Anna Hazare movement nor is it about the demerits of Loksatta. It is about the contrasts between the two which are clearly being ignored by a lot of Loksatta supporters.
If one really thinks about it, the Anna Hazare movement and the Loksatta party's ideology are in complete contrast of each other. They probably do share the Utopian promises of grandeur for India, but their philosophical stances are in complete opposition - yet, we see many who support both and a few who are confused.
On more than one occasion, the Loksatta party president has unequivocally said that there is no place for hunger strikes in a democracy. The view put forward by him is that - while such protests may have been relevant during the British Raj, today when the constitution offers ways for conflicting interest groups to elect representatives and attempt a consensus, rejecting these constitutional rights in favor of a hunger strike is akin to blackmail. Many of the Loksatta supporters I talked to are of the view that while the above may be right, hunger strike can be justified when it is for a 'good cause'. It is an altogether different matter that some of them do not consider another recent hunger strike as being for a good cause. And pandering to this hypocrisy, the party leadership has toned down their opposition to hunger strikes as a form of protest.
The second biggest contrast has to do with decentralization. While team Anna wants a super CBI which combines the powers of existing CBI, CAG, CJI, PMO, ACB and parliament, Loksatta was understood to be against any centralization of powers. The argument has been that any local executive (for e.g., a city commissioner) would be answerable to the local legislative representative (a city mayor). The Jan Lokpal draft however follows the existing bureaucratic hierarchy of the most Government institutions. It is my understanding that the employees of a Lokpal are answerable directly to him who of course is answerable directly to the 'people' and not to the legislative at any level.
The other contrast is the outlook towards politics. Loksatta party came with the mantra that the solution to bad politics is to have good politics - while Team Anna's view is that politics would always remain bad, and that is why their powers should be curbed by the another institution which should remain independent of legislature. This is clearly evident on the requirement of 'search committee' members of Lokpal to be not affiliated with any political party.
I believe we can and should discuss the merits and demerits of Jan Lokpal bill without having to resort to any slander or questioning one's patriotism. Loksatta however is of the view that since so many of its members are caught up in the Anna wave, either through decisive support or willful naivety, it is probably best to subvert some principles for a minute in view of the 'larger picture'.
Sunday, August 21, 2011
Tuesday, December 1, 2009
Contesting for LSP
I recently watched a speaker who was a contestant to Congress (Lower house of US Legislature) here. Some of his inputs are applicable to LSP and are summarized here. I thought the following might be a naive, repeated yet relevant reading for every LSP contestant.
Desire
The first thing needed to become a contestant in politics is desire and ambition - to become an MLA (or a Ward Member). If you are embarrassed or uncomfortable admitting - "My ambition in life is to be an MLA", you should not contest. It does not matter if you have ideas to change the politics, if you are a capable administrator, if you are great with civics and economics, if you are angry about the current policies, if you are better educated than an opponent, if you want to dedicate you life to betterment of your citizens - all this is not enough. The decision to contest is about you, about your desire, your ambition, your want, your selfishness.
Circumstances
You might have a strong desire to be an MLA; but campaigning is a demanding job. It requires 100% dedication. Your desire should take the highest priority in your life. Your obligations like work, family, friends, finances, passions, hobbies, health problems should not cause any problems for your campaign. Elections are also demanding emotionally - there will be smear campaigns, there will be frustrations - You will need the full unconditional support of family, finances and friends.
Knowledge
As a contestant, you are expected to have atleast a rudimentary knowledge of civic administration in India, economics, sociology, public services, resource management, marketing, journalism, current affairs, global politics, national politics, public organization, management, relevant GOs and bills in assembly and parliament. If you do not fully understand LSP ideology, it's specific details, subsidiarity principles, third tier governance, welfare economics, it is better to devote time to study and learn rather than jump in. There is a differene between believing in LSP principles and knowing how LSP principles work.
Timing
Once you decide to contest, regardless of whether you get the ticket or not, timing the campaign as early as possible is crucial. The campaign for local elections starts at least one year before in US, which is largely clean politics. If there is not much local support for LSP in your area, the campaign should start even earlier. Please do not expect to win by doing rigorous campaigning a month before the elections, regardless of how effective you have canvassed your constituency. It is not the intensity, nor the coverage, but the duration of the campaign that will have a marked effect. Campaign should not begin by notification of elections or getting the party ticket; it should start six months before.
Team
All campaigns begin by selecting a core campaign team. The desire and ambition of all team members should be to win the election. They should be able to dedicate 100% to the campaign, just like the you. Do not expect anything from the party other than a united manifesto. Your core team is infinitely more important to your chances of winning than the party. There would be specific duties that some team members will be expected to perform; if they don't you should have no qualms about letting them go. Select people who have different ideas than you. Remember that you do not manage your team, your team manages you.
Exposure
You and your team should try to maximize your exposure. This is not necessarily better press coverage. There will be some public events every week - school functions, book reviews, trade exhibitions, coorporate openings, NGO service camps, college parties. Even if you dont have a chance to give a speech, attend every one of them - major or minor. Meet as many people as you can. Get to know the public speakers in these functions intimately, regardless of whether you agree with them on some issues - they will be very useful to you. Expand your contacts, listen to them, make an impression on them. If you are not known by atleast 1000 'influential' contacts in your ward intimately, your contest is a joke.
Vote bank
Vote bank politics is not bad - vote bank politics based on caste, creed is bad. For LSP, educated voters are the vote bank. Maximize your concentration on them. Make it a point to meet as many of them personally in door to door campaigns as possible. Create a list of all such voters, including their addresses and phone numbers. Your exposure and your contacts should help your team compile such a database. This database is extremely important to your elections. Use festivals, holidays as ruse to call them personally through your team. Maintain contact with them, take their feedback, keep getting back to them every week.
Feedback
During your team's interaction personally with people, compile the specific problems that each individual has. Note every problem, and maintain that database. Use the information in the database when you follow up with them. Follow up with your vote bank is a must. Remembering and discussing their specific problems during follow up gives them assurance about you. Based on the compilation, identify the most common problems, and prepare your common talking points. Keep repeating the same common talking points in all public speeches - repeat the same rhetoric until you yourself get bored of it.
Study
You should study how the local administration works, which office handles which matters, who is the officer incharge for specific things. From the feedback, make an effort to identify the root cause of each specific problem, and come up with specific solution. Do not rely on the party's general solutions to general problems. You have to make an individual effort to come up with atleast identifying the administrative processes & officials who are involved. Add this information to your database.
Oration
Oration is not necessarily about speeches. Speeches rarely compell people to vote for you. It is the personal talks in door to door campaigns, and following that up with personal calls that can sway them. Listen to them completely, empathise with them by listing out similar experiences you had, point out the local problems with specific officers in the administration, specific rules & laws that you think are the issues, specific causes of their problems. Do not use the common talking points or party's talking points when talking personally to people, instead cite specific details. You need not tell them how you will solve their problems, but you should show them that you understand the causes of the problem.
Ticket
You should have already made a good progress on the above tasks before the notification of elections comes up. By this time, if you do not have complete confidence that you will win the election, do not even consider fighting for the party ticket. This will help your own chances in future. Getting a ticket and loosing election will hurt you more politically. Nobody likes a looser. It is safer to not asking for a ticket and supporting a more popular candidate. Doing this will help you in the long run.
Campaign season
After notification of elections, you will know who your opponents are. Resort to negative campaigning by listing out how you are better, and how your opponents are inferior. At the same time, maitain contact with your list of vote bank voters. This is the time to recruit some of them as volunteers. Use these volunteers to expand your list. This is also the time to use publicity material like flyers, etc. Make full use of party funds for all publicity material.
Generic voters
Do not concentrate on voters of a different vote bank until you have the party ticket. With these voters, your best bet is to use public speeches using common talking points, party's talking points and negative campaigning. You cannot sway these people by citing specific solutions or by door to door campaigns - so do not waste your resources. Instead concentrate on personal campaigning to your vote bank, and public campaigning to other vote banks. Note that as LSP candidate, you cannot compete with other parties in public campaigning - so make efficient use of your money. Invest in cheaper tactics like flyers and posters as opposed to meetings and speeches. Make best use of negative campaigning in posters.
Final run
Just before the close of campaign season, follow up with all of your vote bank voters. Remind them of the importance of vote, and urge them personally on phone to vote. Ask them to take atleast two other voters along with them to polling station. Tell them how you are relying on them individually to win the elections. Make them feel that they individually are key for you to win the elections. You will loose elections only because your vote bank did not vote for you; not because you failed to convince the other vote banks.
Desire
The first thing needed to become a contestant in politics is desire and ambition - to become an MLA (or a Ward Member). If you are embarrassed or uncomfortable admitting - "My ambition in life is to be an MLA", you should not contest. It does not matter if you have ideas to change the politics, if you are a capable administrator, if you are great with civics and economics, if you are angry about the current policies, if you are better educated than an opponent, if you want to dedicate you life to betterment of your citizens - all this is not enough. The decision to contest is about you, about your desire, your ambition, your want, your selfishness.
Circumstances
You might have a strong desire to be an MLA; but campaigning is a demanding job. It requires 100% dedication. Your desire should take the highest priority in your life. Your obligations like work, family, friends, finances, passions, hobbies, health problems should not cause any problems for your campaign. Elections are also demanding emotionally - there will be smear campaigns, there will be frustrations - You will need the full unconditional support of family, finances and friends.
Knowledge
As a contestant, you are expected to have atleast a rudimentary knowledge of civic administration in India, economics, sociology, public services, resource management, marketing, journalism, current affairs, global politics, national politics, public organization, management, relevant GOs and bills in assembly and parliament. If you do not fully understand LSP ideology, it's specific details, subsidiarity principles, third tier governance, welfare economics, it is better to devote time to study and learn rather than jump in. There is a differene between believing in LSP principles and knowing how LSP principles work.
Timing
Once you decide to contest, regardless of whether you get the ticket or not, timing the campaign as early as possible is crucial. The campaign for local elections starts at least one year before in US, which is largely clean politics. If there is not much local support for LSP in your area, the campaign should start even earlier. Please do not expect to win by doing rigorous campaigning a month before the elections, regardless of how effective you have canvassed your constituency. It is not the intensity, nor the coverage, but the duration of the campaign that will have a marked effect. Campaign should not begin by notification of elections or getting the party ticket; it should start six months before.
Team
All campaigns begin by selecting a core campaign team. The desire and ambition of all team members should be to win the election. They should be able to dedicate 100% to the campaign, just like the you. Do not expect anything from the party other than a united manifesto. Your core team is infinitely more important to your chances of winning than the party. There would be specific duties that some team members will be expected to perform; if they don't you should have no qualms about letting them go. Select people who have different ideas than you. Remember that you do not manage your team, your team manages you.
Exposure
You and your team should try to maximize your exposure. This is not necessarily better press coverage. There will be some public events every week - school functions, book reviews, trade exhibitions, coorporate openings, NGO service camps, college parties. Even if you dont have a chance to give a speech, attend every one of them - major or minor. Meet as many people as you can. Get to know the public speakers in these functions intimately, regardless of whether you agree with them on some issues - they will be very useful to you. Expand your contacts, listen to them, make an impression on them. If you are not known by atleast 1000 'influential' contacts in your ward intimately, your contest is a joke.
Vote bank
Vote bank politics is not bad - vote bank politics based on caste, creed is bad. For LSP, educated voters are the vote bank. Maximize your concentration on them. Make it a point to meet as many of them personally in door to door campaigns as possible. Create a list of all such voters, including their addresses and phone numbers. Your exposure and your contacts should help your team compile such a database. This database is extremely important to your elections. Use festivals, holidays as ruse to call them personally through your team. Maintain contact with them, take their feedback, keep getting back to them every week.
Feedback
During your team's interaction personally with people, compile the specific problems that each individual has. Note every problem, and maintain that database. Use the information in the database when you follow up with them. Follow up with your vote bank is a must. Remembering and discussing their specific problems during follow up gives them assurance about you. Based on the compilation, identify the most common problems, and prepare your common talking points. Keep repeating the same common talking points in all public speeches - repeat the same rhetoric until you yourself get bored of it.
Study
You should study how the local administration works, which office handles which matters, who is the officer incharge for specific things. From the feedback, make an effort to identify the root cause of each specific problem, and come up with specific solution. Do not rely on the party's general solutions to general problems. You have to make an individual effort to come up with atleast identifying the administrative processes & officials who are involved. Add this information to your database.
Oration
Oration is not necessarily about speeches. Speeches rarely compell people to vote for you. It is the personal talks in door to door campaigns, and following that up with personal calls that can sway them. Listen to them completely, empathise with them by listing out similar experiences you had, point out the local problems with specific officers in the administration, specific rules & laws that you think are the issues, specific causes of their problems. Do not use the common talking points or party's talking points when talking personally to people, instead cite specific details. You need not tell them how you will solve their problems, but you should show them that you understand the causes of the problem.
Ticket
You should have already made a good progress on the above tasks before the notification of elections comes up. By this time, if you do not have complete confidence that you will win the election, do not even consider fighting for the party ticket. This will help your own chances in future. Getting a ticket and loosing election will hurt you more politically. Nobody likes a looser. It is safer to not asking for a ticket and supporting a more popular candidate. Doing this will help you in the long run.
Campaign season
After notification of elections, you will know who your opponents are. Resort to negative campaigning by listing out how you are better, and how your opponents are inferior. At the same time, maitain contact with your list of vote bank voters. This is the time to recruit some of them as volunteers. Use these volunteers to expand your list. This is also the time to use publicity material like flyers, etc. Make full use of party funds for all publicity material.
Generic voters
Do not concentrate on voters of a different vote bank until you have the party ticket. With these voters, your best bet is to use public speeches using common talking points, party's talking points and negative campaigning. You cannot sway these people by citing specific solutions or by door to door campaigns - so do not waste your resources. Instead concentrate on personal campaigning to your vote bank, and public campaigning to other vote banks. Note that as LSP candidate, you cannot compete with other parties in public campaigning - so make efficient use of your money. Invest in cheaper tactics like flyers and posters as opposed to meetings and speeches. Make best use of negative campaigning in posters.
Final run
Just before the close of campaign season, follow up with all of your vote bank voters. Remind them of the importance of vote, and urge them personally on phone to vote. Ask them to take atleast two other voters along with them to polling station. Tell them how you are relying on them individually to win the elections. Make them feel that they individually are key for you to win the elections. You will loose elections only because your vote bank did not vote for you; not because you failed to convince the other vote banks.
Friday, July 17, 2009
Reboundable lane dividers for Hyderabad traffic
The first thing a foreigner in any Indian city notices is the chaos of traffic. The traffic congestion itself is not so much the surprise, as many international cities suffer this clogging because of high traffic volume. But the chaos of non-homogenous traffic that follows neither any lane system or civic traffic laws is the one thing that stands out. This proposal is not to address the problem of clogging at large, but to address the problem of traffic chaos and it's contribution to clogging.
There is also an economic issue and a problem of inconsiderate driving here. Roads are unmanaged commons, and classically follow the tragedy of commons. Particulariy in mixed traffic, lane splitting or driving in between the lanes is more beneficial to two wheelers and detrimental to four wheelers. The oppurtunity cost of the time lost as a whole is of a considerable economic concern, apart from the frequent mental stress. Four wheelers also have high initial costs that are poorly recovered from this unjustified usage of common property.
If lane system is preferred, how to enforce it is the question. In cities where the means of transport are few (only 5 types of transport in US cities, compared to 40 types of transport in Indian cities), this is an automatic behavior where the traffic follows lane system. This is not just because of strict traffic laws.
Strict traffic laws are also not the apt solution as it is expensive both in monetary and human resource terms. Laws to enforce rigid lane system are not just feasible in Indian cities with largely mixed traffic.
The alternate solution that can be explored is the use of lane dividers. Reboundable lane dividers [1][2] could be the right choice, both for concerns of safety, cost and installation ease. The average width for one side of most minor roads is around 30 feet, and this can be comfortably divided into two lanes. The lane dividers can be set up at a distance of 5 feet along the length of the road to prevent lane crossing.
A road will be divided up length wise into beginning, middle and end, as defined by the intersections at either ends. There would only be lane dividers for the starting and ending of a road length. These are at the intersections where lane splitting is a problem. In the middle of the road length wise, for a little distance, there would be no lane dividers to allow for lane changes.
Because of this division, the traffic in the outer lane will be forced to use only that lane. This also solves the encroachment of road space by hawkers, illegal parking, etc., and leads to a more optimum usage of road space.
The usage of reboundable lane dividers is preferable to concrete dividers as this is easier to install and remove; at the same time cheaper and safer to traffic. Also, there is no compulsion on which lanes are to be used by two wheelers and which ones are for four wheelers. This is unnecessary as the real problem is lane splitting, and not two wheelers as such.
There can be a pilot study to improvise or reject this system of enforcement. This solution can be tested on a road like exhibition grounds road. Each side of the road can be further divided into two or more lanes using reboundable lane dividers. The cost of this would only be a handful of thousands. Surely such a cheap experiment can yield beneficial results.
Links
1. http://www.ingalcivil.com.au/ingal_products/product_images/63.jpg
2. http://www.ezydrive.com.au/Portals/2/LaneDiv.jpg
3. http://www.fadaweb.com/urban_transport.htm
4. http://en.wikipedia.org/wiki/Lane_splitting#cite_note-13
5. http://books.google.com/books?id=ckLcxEb5tM8C&pg=PA273
There is also an economic issue and a problem of inconsiderate driving here. Roads are unmanaged commons, and classically follow the tragedy of commons. Particulariy in mixed traffic, lane splitting or driving in between the lanes is more beneficial to two wheelers and detrimental to four wheelers. The oppurtunity cost of the time lost as a whole is of a considerable economic concern, apart from the frequent mental stress. Four wheelers also have high initial costs that are poorly recovered from this unjustified usage of common property.
If lane system is preferred, how to enforce it is the question. In cities where the means of transport are few (only 5 types of transport in US cities, compared to 40 types of transport in Indian cities), this is an automatic behavior where the traffic follows lane system. This is not just because of strict traffic laws.
Strict traffic laws are also not the apt solution as it is expensive both in monetary and human resource terms. Laws to enforce rigid lane system are not just feasible in Indian cities with largely mixed traffic.
The alternate solution that can be explored is the use of lane dividers. Reboundable lane dividers [1][2] could be the right choice, both for concerns of safety, cost and installation ease. The average width for one side of most minor roads is around 30 feet, and this can be comfortably divided into two lanes. The lane dividers can be set up at a distance of 5 feet along the length of the road to prevent lane crossing.
A road will be divided up length wise into beginning, middle and end, as defined by the intersections at either ends. There would only be lane dividers for the starting and ending of a road length. These are at the intersections where lane splitting is a problem. In the middle of the road length wise, for a little distance, there would be no lane dividers to allow for lane changes.
Because of this division, the traffic in the outer lane will be forced to use only that lane. This also solves the encroachment of road space by hawkers, illegal parking, etc., and leads to a more optimum usage of road space.
The usage of reboundable lane dividers is preferable to concrete dividers as this is easier to install and remove; at the same time cheaper and safer to traffic. Also, there is no compulsion on which lanes are to be used by two wheelers and which ones are for four wheelers. This is unnecessary as the real problem is lane splitting, and not two wheelers as such.
There can be a pilot study to improvise or reject this system of enforcement. This solution can be tested on a road like exhibition grounds road. Each side of the road can be further divided into two or more lanes using reboundable lane dividers. The cost of this would only be a handful of thousands. Surely such a cheap experiment can yield beneficial results.
Links
1. http://www.ingalcivil.com.au/ingal_products/product_images/63.jpg
2. http://www.ezydrive.com.au/Portals/2/LaneDiv.jpg
3. http://www.fadaweb.com/urban_transport.htm
4. http://en.wikipedia.org/wiki/Lane_splitting#cite_note-13
5. http://books.google.com/books?id=ckLcxEb5tM8C&pg=PA273
Tuesday, July 7, 2009
Loksatta's draft on 'The Prevention of Corruption Amendment Act'
The exisitng 'Prevention of Corruption Act 1988' does not have provision for forfeiture of properties of the accused when convicted. Justice Jeevan Reddy's report on 'The Corrupt Public Servants' bill recommended provisions for exactly such a forfeiture of properties of the accused. Based on this report, Loksatta has prepared a draft for the ammendment that allows for seizure of properties of the accused and his relatives. However, there were a couple of disturbing things that begged more analysis.
The problem with the seizure of property is that it is difficult to prove that the said properties are acquired by corruption. Even if the charges of corruption are conclusively proven, it is impossible to differentiate the monies that are acquired by corruption from other monies acquired or held through other illegal means. In the Law Commission Report, Justice Reddy recommended transfering the burden of proof to the accused - to show why all the unaccounted monies are not acquired by corruption. Also, as often times, these unaccounted properties are held in the names of relatives, the recommendation applied to those assets as well. The justification for this transfer of burden of proof was drawn from the existing laws of 'Smugglers and Foreign Exchange Manipulators Act 1976' (SAFEMA) and 'Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974' (COFEPOSA), which were subsequently put in the ninth schedule of the Constitution. SAFEMA had provisions to seize properties from accused and their relatives, and placed the burden of proof that the seized properties are not legitimate on the accused. The forefiture of properties also applied to detainees of COFEPOSA, where persons can be detained under some circumstances as a preventive measure. Justice Reddy's report has drawn from these existing laws to recommend similar approach to forfeiture of properties in cases of corruption.
Obviously, this presumptuous nature of SAFEMA was questioned in the Supreme court which upheld its constitutionality. It was elaborated that the idea is not to forefeit the independent (illegal or otherwise) properties of the relatives of the accused that they may have obtained independently, but to reach all the properties of the convict traceable to him, whether in his name or not. It is to be noted that only the Competent Authority, CA takes a decision on which properties are 'traceable' to the convict before issuing forefeiture notices. And the strength of link between the accused and an associate's properties has to be listed out, but need not be proven in court to proceed further.
Not surprisingly, there have been cases where SAFEMA was unjustly applied to forefeit properties that had a weak or a non-existent link between themselves and the convict. In such cases, the just Judges and the court system has questioned the strength of such a link, and the CA's reasons to forefeit the independent properties (illegal or otherwise) which are not traceable reasonably to the convict. Effectually, the courts were overseeing the CA's procedures. Inspite of this, Justice Reddy's report recommends that the Law should apply when the CA has 'reasons' to believe that the properties are held on behalf of the convicted.
Loksatta's draft deviates from Justice Reddy's report in some measure. The report recommends extending the application to persons holding illegally acquired properties; the burden of proof is transferred to the accused to only prove why the properties are not illegally acquired. LSP draft advocates transfering the burden of proof once a prima facie case (of corruption) is established; and that there would be a presumption of guilt. In other words, there is a leap from trying to reach all the properties of the convict, in his name or not to assuming his guilt. The concept of burden of proof about legality of properties is morphed into the burden of proof in a criminal case. While this may not be the correct intrepretation of the draft, the use of words is not explicit enough. Justice Reddy's recommendation on forefeiture of all properties illegally acquired, by placing the burden of proof on accused, could still be implemented without need to tie this into the criminalisation of corruption. There is an excessive reliance on the CA to be fair, and a reliance on the Judiciary to oversee these matters. Also, this Law is more suited to western countries with effective investigation and Justice, rather than to India. When corruption has spread even to the Judiciary, it might be prudent to reconsider some aspects of the draft, while there are also other great legislative measures in it.
Corruption is more than one thing - cronyism, graft, bribery, patronage, extortion, etc. And using one tool to fix different bolts is inefficient. When atleast one of the parties is not a willing participant, using civil law is a reasonable solution; as the standard of proof in civil law is not as rigorous as in criminal law. There is a danger of inviting trivial civil cases on public officials and going the USA's way of suing for everything; but a moderated approach can be helpful. If I am asked a bribe by a public official, the current system does not allow me to put a civil case on him, where the standard of proof is easier; and it becomes incumbent on the accused to also come up with a reasonable defense. Conviction in such civil cases can be used to take stringent action on the official, including imposing a fine. In cases where both parties are willing however, greater transparency and the other solutions proposed by the draft are applicable. Such cases beg for better whistle blower protection laws. There is a great likelihood of atleast one honest person being the witness of such corruption, and the law should reward him or make it easier for him to set the law into motion. Bryane Michael's working paper [9] on this issue offers a fresh perspective on these issues and is definitely worth a read.
While Loksatta's draft has some nuances that are outwardly unclear and objectionable, by and large, this is a good measure to bring more discussion on the subject. Seizure of properties is a just thing and it is possible to formulate laws in line with SAFEMA. However, excessive reliance on the fairness of one institution undermines the checks and balances that are essential to liberty.
Links
1. http://www.persmin.nic.in/EmployeesCorner/Acts_Rules/PCAct/pcact.pdf
2. http://www.loksatta.org/cms/documents/corruption.pdf
3. http://lawcommissionofindia.nic.in/101-169/Report166.pdf
4. http://exim.indiamart.com/act-regulations/cofeposa-1974.html
5. http://www.geocities.com/indiancustoms/act/safema.htm
6. http://www.indiankanoon.org/doc/1089522/
7. http://www.indiankanoon.org/doc/690722/
8. http://www.unodc.org/unodc/en/corruption/index.html
9. http://www.qeh.ox.ac.uk/RePEc/qeh/qehwps/qehwps150.pdf
10. http://www.policyinnovations.org/innovators/people/data/bryane_michael
The problem with the seizure of property is that it is difficult to prove that the said properties are acquired by corruption. Even if the charges of corruption are conclusively proven, it is impossible to differentiate the monies that are acquired by corruption from other monies acquired or held through other illegal means. In the Law Commission Report, Justice Reddy recommended transfering the burden of proof to the accused - to show why all the unaccounted monies are not acquired by corruption. Also, as often times, these unaccounted properties are held in the names of relatives, the recommendation applied to those assets as well. The justification for this transfer of burden of proof was drawn from the existing laws of 'Smugglers and Foreign Exchange Manipulators Act 1976' (SAFEMA) and 'Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974' (COFEPOSA), which were subsequently put in the ninth schedule of the Constitution. SAFEMA had provisions to seize properties from accused and their relatives, and placed the burden of proof that the seized properties are not legitimate on the accused. The forefiture of properties also applied to detainees of COFEPOSA, where persons can be detained under some circumstances as a preventive measure. Justice Reddy's report has drawn from these existing laws to recommend similar approach to forfeiture of properties in cases of corruption.
Obviously, this presumptuous nature of SAFEMA was questioned in the Supreme court which upheld its constitutionality. It was elaborated that the idea is not to forefeit the independent (illegal or otherwise) properties of the relatives of the accused that they may have obtained independently, but to reach all the properties of the convict traceable to him, whether in his name or not. It is to be noted that only the Competent Authority, CA takes a decision on which properties are 'traceable' to the convict before issuing forefeiture notices. And the strength of link between the accused and an associate's properties has to be listed out, but need not be proven in court to proceed further.
Not surprisingly, there have been cases where SAFEMA was unjustly applied to forefeit properties that had a weak or a non-existent link between themselves and the convict. In such cases, the just Judges and the court system has questioned the strength of such a link, and the CA's reasons to forefeit the independent properties (illegal or otherwise) which are not traceable reasonably to the convict. Effectually, the courts were overseeing the CA's procedures. Inspite of this, Justice Reddy's report recommends that the Law should apply when the CA has 'reasons' to believe that the properties are held on behalf of the convicted.
Loksatta's draft deviates from Justice Reddy's report in some measure. The report recommends extending the application to persons holding illegally acquired properties; the burden of proof is transferred to the accused to only prove why the properties are not illegally acquired. LSP draft advocates transfering the burden of proof once a prima facie case (of corruption) is established; and that there would be a presumption of guilt. In other words, there is a leap from trying to reach all the properties of the convict, in his name or not to assuming his guilt. The concept of burden of proof about legality of properties is morphed into the burden of proof in a criminal case. While this may not be the correct intrepretation of the draft, the use of words is not explicit enough. Justice Reddy's recommendation on forefeiture of all properties illegally acquired, by placing the burden of proof on accused, could still be implemented without need to tie this into the criminalisation of corruption. There is an excessive reliance on the CA to be fair, and a reliance on the Judiciary to oversee these matters. Also, this Law is more suited to western countries with effective investigation and Justice, rather than to India. When corruption has spread even to the Judiciary, it might be prudent to reconsider some aspects of the draft, while there are also other great legislative measures in it.
Corruption is more than one thing - cronyism, graft, bribery, patronage, extortion, etc. And using one tool to fix different bolts is inefficient. When atleast one of the parties is not a willing participant, using civil law is a reasonable solution; as the standard of proof in civil law is not as rigorous as in criminal law. There is a danger of inviting trivial civil cases on public officials and going the USA's way of suing for everything; but a moderated approach can be helpful. If I am asked a bribe by a public official, the current system does not allow me to put a civil case on him, where the standard of proof is easier; and it becomes incumbent on the accused to also come up with a reasonable defense. Conviction in such civil cases can be used to take stringent action on the official, including imposing a fine. In cases where both parties are willing however, greater transparency and the other solutions proposed by the draft are applicable. Such cases beg for better whistle blower protection laws. There is a great likelihood of atleast one honest person being the witness of such corruption, and the law should reward him or make it easier for him to set the law into motion. Bryane Michael's working paper [9] on this issue offers a fresh perspective on these issues and is definitely worth a read.
While Loksatta's draft has some nuances that are outwardly unclear and objectionable, by and large, this is a good measure to bring more discussion on the subject. Seizure of properties is a just thing and it is possible to formulate laws in line with SAFEMA. However, excessive reliance on the fairness of one institution undermines the checks and balances that are essential to liberty.
Links
1. http://www.persmin.nic.in/EmployeesCorner/Acts_Rules/PCAct/pcact.pdf
2. http://www.loksatta.org/cms/documents/corruption.pdf
3. http://lawcommissionofindia.nic.in/101-169/Report166.pdf
4. http://exim.indiamart.com/act-regulations/cofeposa-1974.html
5. http://www.geocities.com/indiancustoms/act/safema.htm
6. http://www.indiankanoon.org/doc/1089522/
7. http://www.indiankanoon.org/doc/690722/
8. http://www.unodc.org/unodc/en/corruption/index.html
9. http://www.qeh.ox.ac.uk/RePEc/qeh/qehwps/qehwps150.pdf
10. http://www.policyinnovations.org/innovators/people/data/bryane_michael
Subscribe to:
Posts (Atom)
