CABINET IN VILLAGE;BIHAR CREATES HISTORY IN GOVERNANCE

GOVERNANCE AT THE DOOR STEP; WILL IT DELIVER?

Nitish Kumar, the CM of Bihar created history on10th February, 2009 when he chaired a full-fledged cabinet meeting in Barbighi village of Begusarai district. The entire ministers of his cabinet as well as important and concerned secretaries/Principal secretaries were also present in the village. This is the first cabinet meeting ever held in any village in India. Nitish Kumar is known for his innovative and self styled functioning. Few days back he had launched one “Vikash Yatra” in which he along with his ministers and officials stay at night in tents in village itself and take stock of feedbacks of the people vis-a-vis performance of his govt.

Raffled by his growing popularity, the opposition rebukes him of being extravagant and making futile expenditure of public money on what they call ‘political gimmicks’ and settling political agenda.

He is killing two birds with a single stone in the sense that on the one hand he is campaigning for the ensuing parliamentary election and on the other reviewing the on-going developmental projects and schemes across the state that too on govt expenditure.

Yesterday in the Cabinet meeting held at the village, he took several decisions like upgrading 1350 High Schools into intermediate college, approving 30.54 crore for panchyat building in naxal affected districts, purchasing vehicles for police and conferment of Nagar Parishad status to Hilsa Nagar panchyat.

A large number of people are turning to these Vikas yatras with litany of their complaints regarding various problems.

The people are levelling serious charges of corruption not only against Mukhiyas, Local officials, police but against the MLAs also. It is, however, not known that to what extent the CM would act against those against whom complaints are being levelled because many of them are allegedly said to be close to ruling parties. The CM, nevertheless say that the law would takes its own course. He seems, as per his unrelenting records,not ready to bow down before any one whosoever comes in his way of his much publisized ' susashan'.

DEDICATED FREIGHT CORRIDOR;HISTORY IN MAKING

BUILDING INDIA OF 21ST CENTURY

With the inauguration of construction work of Eastern Dedicated Freight Corridor (EDFC) by Sonia Gandhi and Lalu Prasad on 10th February, 2009 at Dehri-on-Sone in Bihar added a new chapter in the history of economic development of India. This ambitious project is said to be the biggest ever in the Post-Independent India which will cost about Rs/-24,000 Crore (in EDFC only) according to initial estimate. This estimate would go up and Railways have arranged funds from International agencies like Asian development Bank, world Bank and Japanese financial institutions. 

In this project a dedicate lane of rail track would be laid from Dhankuni in West Bengal to Ludhiana via Dehri-on-sone, a total length of 1850 Kms. Similarly, a Western Dedicated Freight Corridor (WDFC) would be constructed connecting from Ludhiana via Dadri to Jawaharlal Nehru Port Trust in Mahrastra. 

With the construction of this corridor, a dedicated rail track would be made available for the freight carriage. It is said that the freight trains would move at a 100 Kms/hr speed and the percentage of freight carriage by Railways vis-a-vis road would improve resulting in significant rise in the earnings of Railways which is soaring with a rocketing speed during Lalu’s regime. According to this fiscal year’s estimate, the gross profit of railways would go up to Rs/-70,000 crore with 76% operating ratio, the best in the world.

The construction of EDFC and WDFC were conceived years ago but due to one reason or the other it was not being implemented. According to the railways sources, the railways are incurring loss in passengers train but earning profits in freight trains, but due to political compulsions and welfare state concept no govt can afford to either hike the fare or diminish facilities. Therefore the concept of a dedicate freight corridor was visualised which would provide uninterrupted and dedicate track to the freight trains.

The story of Lalu’s magic and miracle with respect to railways turnaround is based on this concept in he provides succour to passengers and increase the share of freight in the transport sector.

SATYAM FRAUD; A FAILURE OF CORPORATE GOVERNANCE

(MONOLITH STATUE OF LORD BUDHA IN HYDERABAD, THE EPITOME OF TRUTH)

Satyam fraud is unfolding and so are the inherent weaknesses of Corporate Governance in India. Ramalinga Raju, once a posture boy of India’s growing software sector who could find a seat beside Bill Clinton on the dais, has become a villain in the corporate world for valid reasons.

His emotionally charged four and half page letter of startling revelations shook the entire corporate world when he admitted of cooking the account and inflating the figure by Rupees 5040 crores. He committed this fraud and tried to hush up it by an abortive bid to purchase Maytas infra, a company created by him and run by his son Teja Raju. The move was opposed by some of the directors and thus last attempt of Raju to cover up the scam was thwarted. This is the story in brief which all of us know.

This scam is being equated with Enron of USA because here also the scam was orchestrated by its Auditor, Arthur Anderson, in Satyam, Price Waterhouse cooper.

WHY DID RAJU UNFOLD THE SCAM HIMSELF-

There are two sets of serious questions which still desperately require answers. Why did Raju, the mastermind of the entire fraud, accept the guilt? Why did he choose to surrender before Police and not run away from India, which he could have easily done? Why was this fudging done and for what? Secondly, what were regulators and watch dogs like SEBI, ICAI, and independent directors doing?

The question remained unanswered that whether this fraud shook the conscience of Raju and he unravelled the truth out of sagacity, or he was simply unable to hush up the matter which was increasing day by day assuming insurmountable proportions? 

No, simply not. It was a well calculated, well strategized blended with legal opinion and well thought move to unfold the story and surrender before the police. 

Mahabharata, the Great War was caused due to Dhritarastra’s obsession for his son Duryodhana. The lust of kingdom and its geographical expansion had led many wars across the world. 

Like many fathers, Raju too wanted to create two separate empires for his sons, Teja Raju and Rama Raju jr. He subsequently formed Maytas infra and Maytas info for Teja and Rama respectively. By the end of the 20th century, Satyam computers had made a name for itself on the globe and had emerged as the 4th largest software in the country. The meteoric rise of the company can be substantiated by the fact that it was established in 1987 as private company and got listed by BSE in 1991. In 2001 its share was listed in NYSE and in 2004 it made its place in European stock market. According to company’s statement, its revenue exceeds to 2 bn USD in 2008.

Similarly Raju’s son’s companies also were moving with leaps and bound. Maytas infra got the ambitious Metro projects and bagged many tenders including one of construction of Technology Park.

It is in this perspective, the question that everyone is willing to ask is that when everything was fit and fine then why did Raju fudge the account of the company and commit countries biggest fraud.

The fudging of account had started when the Maytas were formed. Raju started diverting the cash from Satyam into Maytas and many other companies which he had formed either in his own name or benami like Godavari bio, Godavari agro etc. In fact such practices are very common and prevalent in many Indian companies and it would not be a matter of surprise it similar frauds are unravelled more in future. They do it for simple reasons, to help establish their kiths and kin. This ‘drain of wealth theory’ is substantiated by the fact that the share of Promoters in the company which was 25.6% in 2001, diminished to 3.6% in January, 2009. Similarly by 2008 Raju had pledged almost all his shares and had thus siphoned off most of his shares. In fact according to information retrieved from NSE, not only Raju but CFO V.Srinivas, A.S.Murthy, V. Murli etc has sold shares of 3,6500, 3,14,000, 1,83,000 respectively. Raju inflated the account for increasing the price of shares so that he and his accomplices get maximum profits, in which he succeeded also. The day this news broke, the Satyam’s share was soaring. He wanted to hush up the matter in December, 2008, when he made a desperate but unsuccessful bid to purchase his son’s Maytas. It was vehemently opposed by one of the independent directors Mangalam Srinivas, he subsequently resigned. Thus the entire game plan of Raju was shattered. He, by now had come to know that he is not going to succeed in his plan. He therefore, wrote an emotional letter and confessed him fraud.

How did he do it? - As per the accounting practise, the Bank accounts are presented before the Auditors of the company by the CFO after its verification. It seems that the fraud was initially connived by Raju and CFO vadalamani srinivas. Later this nexus might have widened after possible inclusion of auditors and the Bankers. The continuous inflating and cooking of accounts, that too on such a big scale was going unnoticed and unchecked by the auditors and the Bankers sounds absurd, therefore, the possibility of a connivance of bankers and the auditors cannot be ruled out. CID has claimed that Raju had inflated the numbers of the employees also, if it goes true, the involvement of Banks would be proved beyond a shadow of doubt.

WHY DID RAJU SURRENDER AND NOT ESCAPE?- a very pertinent question arises but surprisingly a very few is asking as to if Raju was aware of the magnitude of his crime as well as quantum of its punishment then why did he not escape and choose to surrender before the police.

Reasons are not far to search. The crime he has committed would attract sections 406,409,420,465,471, etc of IPC and section 628 of Company Act, 1956 and can undergo imprisonment up to more than 7 years. He was fully aware of it but at the same time he also knew that he would be sued in USA under provisions of Security and Exchange Commission Regulation rule 10-5 B. These suits are called Class law suits and the compensation awarded under this is huge. Raju knew it and thought that his entire earnings and his family would be taken away and would be left with naught. One the other hand, he fully understood the loopholes in the Indian Criminal Justice system which hardly punishes white collar criminals. Ketan Parikh scam still is sub-Judice and is expected to go years and years. It is this scam which ruined hundreds of Cooperative Banks across Nation and plummeted Unit-64 a popular mutual fund scheme of the UTI, India’s largest mutual fund company. Harshad Mehta died without being finally convicted. Global trust Bank scam is still under the labyrinth of law. Examples are many, results are same. He therefore preferred to surrender than to face class law suits in USA. 

IS CORPORATE GOVERNANCE IN INDIA NOT WORLD CLASS? - Interestingly Satyam has bagged Golden Peacock award for best corporate governance by World Council for Corporate Governance only a few years ago. The scam has raised many doubts about the class of corporate governance in India. While speaking at a seminar on corporate governance organised by CII, Ministry of Company affairs and National foundation of corporate governance, C.B.Bhave, the chairman of SEBI said on 6th February, 2009 that the corporate governance is an ongoing process. There is a retrospection everywhere that some concrete steps with respect to it should be done. 

There are few importance elements of corporate governance namely Auditing, Independent Directors, Regulators and Finally the Board including CEO itself. If we examine these constituents one by one, it would be crystal clear that all the constituents either failed or did not act as was required. 

The role of Price waterhouse Coopers(PwC), the Auditing firm of Satyam has been dealt. Institute of Chartered Accountants of India (ICAI) constituted under Charter Accountants Act, 1949 is the regulatory body of all the accounting and auditing firms across the countries. According to a report there is acute shortage of qualified chartered accountants and auditors in India and around the world also. The number of CAs passing every year is hopelessly small. It is apprehended therefore that the auditing firms out source unqualified or semi-qualified commerce graduates of Post graduates to do the auditing in the companies. The prestigious firms get the assignment by virtue of their name and fame which they recklessly sell in the market by out sourcing the auditors at a very low remuneration. In case of Satyam, the man who was supposed to do audit was incidentally executive member in ICAI.

In a startling revelation, the auditors say that they approved the accounts because of Raju’s ‘towering presence’ suggests how ridiculously the auditing was being done.

Thus if Scam occurred, the onus would undoubtedly go on the firm. The kind of attitude which is adopted here in India in doing auditing is certainly not in congruent with the standard of world class corporate governance. In fact if we look at the functioning of institutions like ICAI, we would come to know that they are in a way hijacked by a group of people. They have the vast statutory powers but without any responsibilities. 

Over a period of time so many extra constitutional authorities have come up in India and have taken up the State’s role and act as per their own framed regulations. This needs to be changed. This is the need of hour.

Secondly, the independent directors have also failed to discharge their duties properly. Section 49 of SEBI Act and section 229 A of Company Act, 1956 provides for appointment of Independent Directors in the Companies for protecting the rights of public at large in general and shareholders in particular. In the case of satyam T.R.Prasad, the retired Cabinet Secretary Govt of India was one of the directors. It speaks a lot about the procedure of appointment of independent directors. What kinds of people are being appointed in the company? Moreover, they are appointed by the Companies themselves and pay hefty salaries and perks for virtually doing nothing. Under this circumstance is it thinkable that these Independent directors would dare to peep into the affairs of the company against the wishes of the CEOs? 

There are only two possibilities in Satyam with respect to Independent directors. Either they connive with Raju and knew everything that was going on, or they did not know. In both the cases they failed miserably to discharge their duties. What is the need of such Independent Directors if they cannot do anything in this matter? One unpalatable justification is given that the Independent Directors participate in the meeting and are not concerned with autonomy of the company. It should be bone in mind the Enron scam was exposed by Sherron Watkins, a women independent director.

Thirdly, the SEBI and Ministry of Company Affairs too have failed in their assigned jobs. SEBI is the highest regulator and keeps eagle eye on the activities of the capital markets. When the profits of this company were registering abnormal growth, thereby the prices of the shares were soaring, what were these guys doing? There has been a lot of hue and cry with respect to insider trading; a howl SEBI failed to listen to and it inflicted heavily on Satyam. Raju had pledged almost all his shares so did many of the promoters. The newly appointed CEO Murthy is also said to have sold about 3.14 lakhs shares including 40,000 in December itself belonging to him and his family members. These are the insider trading. Although insider trading per se is not illegal but it is unethical, moreover when Company’s high official who were on share selling spree must had the idea of what was going in the company. All such transactions are needed to be probed.

As a matter of fact the tax holidays for the IT-BPO companies also needs to be said goodbye. Had Raju to pay the I.Tax according to the profits shown in the accounts, he would not have fudged it to this scale. The ministry of Finance must deliberate upon the entire gamut of issues related to tax heaven provisions. 

INVESTIGATIONS, THE TASK AHEAD- the breaking of news lead to reflexes in all the concerned, the SEBI, ROC, State government and above all MOC.

The Ministry of Company Affairs (MOC) came into action and asked ROC in Hyderabad to conduct preliminary inquiry. SEBI and state govt all jumped in the fray. The state govt ordered CB CID inquiry and filed an FIR against Raju and others by themselves as no one came to file a formal complaint against this fraud.

After receiving the inquiry report from ROC, MOC order inquiry by Serious Fraud Investigation Office (SFIO). Raju was remanded to judicial custody in Chachalguda Jail and formal inquiry set in. 

INQUIRY BY CID-CID made some commendable headway and arrested CFO and others. They made a startling revelation by saying that Raju had about 13000 ghost employees and had been drawing their salaries for years. If it is true, the involvement of Banks in the entire gamut of scam is beyond any doubt. It has also identified many Bank accounts of Raju as well as CFO and other accused. Large amount of wealth in terms of Bank account, real estates, false companies etc have been traced. The investigation is still going on. Well the investigation is limited to the provisions of IPC only. The CID must also look into the possible nexus of Raju and politicians and bureaucrats, because the kind of meteoric rise that Maytas made smacks of existence of such nexus. The bagging of Metro project by Maytas infra must be brought to the ambit of investigation because this project was awarded to Maytas in spite of Sreedharan’s opposition, a man of impeccable reputation and whose knowledge about Metro is simply unparallel.

SFIO AND SEBI- both of them have started the probe in their own style. The SFIO has later been asked to cover as many as 325 public and private sector companies and 25 individuals under its enquiry by the MOC. SFIO have seized some computers, documents and software of the company in order to find out the roots of the scam. But due to the widening of its inquiry, the result of this, probe is likely to be delayed by few more months. Till date SFIO has not been able to procure remand from the court to grill Raju.

SEBI on the other hand has come out with a series of new and so called stiffer guidelines for the listed companies. The promoters will have to inform to it and the share market within 7 days about its pledging of shares. Strict vigil is sought to be kept to check inside trading. But it seems that still it has not understood the symptom of the disease. Experts in this field enlist symptoms and prescribe prescriptions. There is, of course, no denying the fact that prescription in retrospection is easy, but at the same time ‘prevention is better than cure’. It is said that if a company suddenly changes the field and diversify in a completely different are; it is harbinger of tragedy, as it happened in Satyam. No one could foresee that why a premiere software company started diversification in real estate (Maytas infra is a real estate company). 

Similarly, when a company’s growth is meteoric in terms of profits, it should smell some rat. This is done in order to increase the value of share and once it is achieved, the inside trading takes place. SEBI has rightly formulated that peers accounting shall be done, it would minimise the chances of fudging the accounts. SEBI must concentrate on the modalities of this scam so that the offenders are brought to book and at the same time corrective measures are taken.

Many experts suggest that if there is a sudden spurt in insider trading in any company, the regulator should sound alarm bell. In this case the SEBI failed to discharge this job and could not trace when it was going in Satyam.

PROBLEMS IN INVESTIGATION AND COVICTION-

The inquiry and investigation are being conducted by a number of agencies; it therefore, is always a possibility of conflicting and intermingling of actions. To avoid this there is need to evolve a mechanism so that a more coordinated and concerted actions are taken and this investigation reaches to a logical conclusion. 

With respect to the preparation and submission of charge sheet against the culprits including Raju u/s 173 of CrPC, utmost caution is required to be taken. We should not forget that Raju has amassed huge wealth through this scam and the investigating agencies have so far been unable to unearth his treasures. He is capable of hiring the best legal brains available in the world that can tatter the prosecution’s case due to a slightest loop holes.

The simplest theory in the criminal justice system is that the crimes including white collar crimes are inherent part of the society, but the quantum of punishments and pace of dispensation of justice are very important and serves as deterrents. 

USA enacted SARBANES OXLEY ACT, 2002, one of the toughest penal laws with respect Corporate and Capital market crimes after Enron scam. 

Chapter IX and SECTION 901. of this Act SHORT TITLED ‘‘White-Collar Crime Penalty Enhancement Act of 2002’’ provides for the penalty for such crimes. In fact section 906 of this Act provides for 20 years of imprisonment, whereas in India, the Company’s Act, Section 628 provides for 2 years imprisonment only. It is perhaps due to this fact that sufficient deterrent is conspicuously absent in India and fraud after fraud are taking place. The govt will have to come up with a harsh legislation in this regard so that the culprits are severely punished.

TITANIC BOA, THE BIGGEST ANACONDA?

Python is no longer the largest serpentine on the earth. 

A fossil has been discovered in a place called cerrejon in north eastern region of Columbia suggests that Python was not the biggest serpentine on the earth. The discoverers have named this extinct snake as ‘titanoboa cerrejonensis’, which means titanic boa from cerrejon.

The scientists say that on the basis of the fossil, it is estimated that this titanic serpentine existed on the earth some 40 million years ago and was contemporary of dinosaurs. They further say that this mammoth animal might be of 42-45 (12-13 meter) feet long and more than one thousand kilogram in weight leaving python or Anaconda far behind in size as well as weight. The biggest python is reported 9 meter long only according to book of records.

It can swallow a cow or a bull very easily and can thrash a bus.The discovery of this fossil would unearh and unravel many myths about the snakes and would add interesting chapters in the study of nature and science.

ROW IN ELECTION COMMISSION OF INDIA TAKES POLITICAL TUNE

The row in Election Commission of India (ECI) has taken a political tune as all the major political parties are playing their own lyrics orchestrated by political music. The inside bickering in ECI is not new and has been occurring time and again. The first major controversy arose during T.N. Seshan’s regime when Seshan and Krishnamurti, one of the then EC locked their horns in order to establish their own hegemony and run their own writs. 

The present row originated owing to the letter which the CEC, has written to the President of India recommending the removal of Navin Chawala, the EC for his alleged acts of commission and omission under article 324 (5) of Indian Constitution. This letter sparked off a major political controversy because the BJP has come openly in rescue of N. Gopalswami, whereas; Congress and other UPA constituents have pledged their support to Navin Chawala. This controversy has incited a debate also in legal luminaries and judicial domain. The issue which has again come to fore is that whether or not the CEC can suo motto initiate inquiry and recommend the removal of the other ECs? The question has become vexed also because the provisions of the Constitution in this regard are somewhat translucent on this issue. Article 324 of the Indian constitution provides for the superintendence, direction and control of election to be vested in the Election commission. Clause 5 of this Article provides for ‘the Subject to the provisions of any law made by the Parliament, the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine:

Provided that the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment:

Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner. 

The above provision makes it amply clear that the ECs can be removed by the President, the appointing authority, but the CEC can only be removed by a process of impeachment similar to that of a Supreme Court Judge. The message is clear; the father of constitution has conferred on adequate amount of independence on the ECI and also has guaranteed protection to it against any undue political and executive interference. It is also a fact that the CEC and ECs are equal, CEC being the first among the equals, this however do not bring all the ECs at par with the CEC.It seems that the principle of check and balance as well as superiority and subordination blended with administrative hierarchical concept has been enshrined in the above provisions of the constitution. The Criminal Procedure Code (Cr.P.C.) of 1973 can be taken into account to explain above principle. Section 20 of this code provides for appointment of Executive Magistrates and the District Magistrates. It speaks of the principle that District Magistrate is also an executive magistrate and all executive magistrates are equal, but the district magistrate is first among the equals. Further section 21, 22 and 23 make it clear that the executive magistrates,including the SDM, who is also an executive magistrate are subordinate to the district magistrate. Some may take it as an absurd comparison, but the principle of the same administrative hierarchical concept has been applied in the Election Commission also. 

Now coming to the question which remained unanswered is that whether the CEC can recommend suo-motu to the President the removal of ECs without the Presidential Reference? The Constitutional bench of the Supreme Court has ruled in the famous T.N. Seshan Vs Union of India in 1995 {5 SC, 337;(1995)4 SCC 611} that if power were to be exercisable by the CEC as per his whim and caprice, the CEC himself would become an instrument of oppression and would destroy the independence of the ECs if they are required to function under the threat of the CEC recommending their removal. This judgment is said to be landmark vis-a-vis the functioning of the ECI. The Supreme Court was of the opinion that the in-dependence of ECI is more important than the supremacy of CEC. In fact the fathers of our Constitution had rightly infused a large amount of independence and sanctity in the ECI which is also a custodian of the Constitution. Dr Bhim Rao Ambedkar, the father of Indian Constitution, had said in the constituent assembly that the removal of CEC should be done only through a process of impeachment. The idea was the same, to confer independence to the Commission. But unfortunately over a period of time certain amount of aberration has crept into this constitutional body and has turned it into a hub of hobnobbing and bickering. 

So far as the grounds for inquiry against Navin Chawla and subsequent recommendation to his removal is concerned, the matter goes back to 2006 when L.K.Advani along with 204 other MPs submitted a petition to the President of India seeking removal of Navin Chawla for his alleged acts of commission and omission during emergency and his alleged proximity to the ruling Congress Party. The same petition was forwarded to the CEC for necessary action. It is in this context the CEC asked explanation from Navin Chawla and after being ‘unsatisfied’ from the Chawla’s answer, CEC made this recommendation to the President. The entire legal fraternity divided over this issue. One school of opinion says that the CEC can recommend removal of any EC suo-motu, whereas other opines that the CEC can only act when he is sought to do so by the president. Coming to the issue of taking action on the recommendation, some stalwarts say that the recommendation is binding on the government, whereas many other do not subscribe to this view and suggest that the government has every right to reject the recommendation.

But it seems that if the CEC is not empowered to make a suo-motu recommendation, and can act only on the presidential reference, then how can the independence of Election Commission and its insulation from government’s interference be kept intact? It appears that misreading in between the lines is being done by many of us. If the CEC is supposed to act only when he is asked to do so, then why is this provision made in the constitution stating therein that the ECs can be removed only the recommendation of the CEC? 

We are non-deliberately skipping the core issue that, why after all such bickering and quarrelling are taking place in this august institution of sublime importance? The very practice of appointing very senior bureaucrats to the post CEC and EC just after their retirement is the crux of all the problems. The senior most bubus sitting at the helm of affairs can hardly remain apolitical and in a bid to get some post retirement placement, they start lobbying in the power lobby. Many of them get reward and those who are left start criticising the government in hope of winning over the sympathy of parties in opposition so that they can be compensated when these parties return to power. N. Gopalswamy had served as home secretary under Advani, similarly Chawla had been secretary to Lt. Governor during emergency. Gopalswamy was made EC just after his retirement by the NDA government, whereas Chawla was handpicked and rewarded by the Congress. Naturally their loyalties shall be put to a litmus test.

M.S.Gill has been made Rajya Sabha MP after his retirement as CEC, he was subsequently made a state minister in the union cabinet. This step is going to have profound impact on the functioning of EC, as every outgoing EC or CEC would be lured by such rewards which they may get if they pursue the interest of parties in power. 

Remedies: - Mr. B.B. Tandon the then CEC had made certain recommendations with regard to the long overdue reforms in the EC. These recommendations are eating dust in the labyrinth of power and politics. Here are some suggestions which can be incorporated while taking steps in cleansing and reforming the commission. 

1. Rules can be framed that no bureaucrat shall be appointed, nominated or given any office within three years after their retirement. 

2. Bureaucrats and judges should not be allowed to join any political party or fight election within three years after th.eir retirement. 

3. The selection and appointment procedures for the high offices like EC, NHRC, CIC, other commissions etc. should be made transparent and institutionalised so that the possibility of hand picking is diminished to a zero level

4. A national panel may be prepared for such appointment so that principle of equality and openness is followed. 

5. Law can also be framed so that no one is appointed to any constitutional post twice. This would help minimise the chances of doing favour of disfavour by these persons

RIGHT TO INFORMATION;INDIA AND USA

RIGHT TO INFORMATION A COMPARISON BETWEEN INDIA AND USA

Chief Justice of India’s reluctance to disclose the details of assets to the petitioner under RTI Act, 2005 has incited a debate on transparency versus privacy and confidentiality in Indian Public domain. 

The Central Information Commission (CIC) passed an order on the petition of one Subhash Agarwal filed u/s 6 of the Act, and asked all the Judges including CJI of the Supreme Court to make available the required information relating to their assets and properties to the petitioner. The order was taken aback by the Judiciary, because hitherto it is only they who used to get their dictates obeyed. This time the matter was reverse.

Immediately after getting the order from the CIC, the Supreme Court filed an appeal before the Delhi High Court through its Registrar against the order of the CIC. It is worth mentioning here that the order of Information Commission is final and binding as provided in section 19 (7) of the RTI Act, 2005. The aggrieved persons or the parties may however approach the High courts or the Supreme Court under Article 226 and 32 of Indian Constitution respectively in form of Writs, if they feel that their fundamental rights as enshrined in the Constitution are violated. 

In this case, it is beyond the imagination of a common man as how this said order of CIC was infringing upon the fundamental rights of the Judges, which forced CJI to go to the Delhi High Court against the said order.

This is not the first instance when Judiciary has retaliated against imposition of law on them or tried to resist any move towards greater amount of transparency being brought into the judiciary. It is rightly said that it is easy preaching than done.

Few months back, while speaking in a seminar in Delhi, the CJI said that the provisions of RTI do not apply on them because they are the Constitutional Authorities. Did he mean that the provisions of RTI Act do not apply on PM, Ministers, CEC, Speakers of Legislatures and MPs and MLAs because they are also constitutional authorities? 

This statement was also rebuked in the media; he thereafter tried to pacify the people by giving effete arguments. The CJI said that since there is no provision of disclosure of properties by the Judges of Higher Judiciary in any law or conduct rules for them, the Judges are not obliged to disclose the same. It is true, that such provisions are laid down in Government servants conduct Rules which are not applicable on the Judges of the higher judiciary.

Nonetheless, it should be borne in mind that the provisions of the RTI are overriding in effect, meaning thereby that all other laws if contrary to the provisions of RTI would be overridden (Section 22 of RTI Act). It is true that there are no service conduct rules for the Judges in higher judiciary, but at the same time there is no law also which provides immunity to the judges against disclosing their properties, after all what and why to hide?

In the mean time similar attempts to thwart the People centric ethos of the Act are being made in none other than the PMO itself. The same Subhash Agarwal has filed petition before the Public Information Officer (PIO) of the Cabinet Secretariat seeking information about the assets of the Union Ministers. The petition was thereafter sent to the PIO of PMO as per Section 6(3) of the Act. Initially, the PMO was willing to make available the required information to the information seeker, but subsequently, it sought to withhold the information on the pretext of the provisions of exemptions enshrined in Section 8(1)(e) and (j). 

It sounds funny to learn that the aforesaid provisions are invoked to deny the petitioner disclosure of the sought information. The Section 8(1) (e) says ‘the information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information’. Undoubtedly the disclosure of the assets of the ministers does not fall in this category.

Similarly, the section 8(1) (j) says that if the sought information is not related to public activity or public interest or which would cause unwarranted invasion of the privacy of the individual, the information can be denied.

The pertinent question here obviously rises that what kind of privacy is involved in the disclosure of the assets of Ministers? How can the property acquired by a Minister while serving the ministry be not related to public activity or public interest? Moreover, the Supreme Court has ruled in 1997 and made it mandatory on part of the MPs to disclose their assets. The Election Commission of India subsequently issued circulars and made it obligatory for the contesting candidates to file an affidavit declaring all the moveable and immoveable properties along with the nomination papers. Thus if the said information relating to the ministers are disclosed, it would be of great help to the India citizen because one could then easily find out by calculating the amount of wealth the minister has amassed during the tenure by just deducting the wealth declared by them at the time of filing nominations. 

It appears that higher Judiciary as well as higher executive both want to withhold the free flow of information and are against the transparency. They talk very tall from public platform but when it comes to their turn, they provide justification of exemptions thoroughly unpalatable to the public. People as higher echelon must set examples of high standard of public life and morality. They are the role models of the society and the democracy. The kind of public outcry which was witnessed after Mumbai attack was just a trailer, it was suggestive of the fact that what kind of public perception is there in the mind of the pubic at larger for the politicians. 

One can draw a distinction between India and USA with respect to transparency in public life. In America one Freedom of Information Act, 1966 is enacted and is in vogue since 1967. George Bush had issued an executive order enabling the Ex. Presidents and Vice Presidents to sit indefinitely on potentially embarrassing records that belong to public domain. Barrack Obama showing his uncompromising commitment to transparency and openness undid the order and issued a fresh executive order making it mandatory on the part of the US administration to make available to people at large, all the documents related to any decision taken by the administration which belong to public domain.

Obama’s decision to undo the executive order of his predecessor is an important decision because under Section 4(F) (1) gives the president such power to issue an executive order to be kept secret in the interest of the national defense or foreign policy etc. It means that had the President wanted to hide any document; he would have taken the help of this provision and denied the emanation of information in the name of national defense. He did not wish to withhold the free flow of information in the garb of law, rather preferred to undo it and set an example, conspicuously absent in Indian politicians. This is what is called transparency, openness and democracy. But here in our case, provisions of laws and rules are interpreted in one’s own interests and not in the wider interest of the public at large

BIHAR GETS GOLD IN E-GOVERNANCE ON ' JANKARI' CALL CENTRE

Bihar govt gets e-governance award for its noble initiative of setting up call centre on Right to Information ‘Jankari’

Bihar govt’s initiative for giving free access to citizens, the information through call centre ‘ jankari’ has started bearing fruits as it has been selected for being awarded as ‘National award’ in e-governance for the year 2008-09 by Union govt (DoPT). This award would be conferred on it in a function scheduled to be held in Goa on 12-13 February, 2009.

Giving this information in Patna, IT secretary, C.K.Misra said that the establishment of ‘Jankari’, the call centre for giving information to the information seeker under the provisions of RTI Act,2005 has been widely appreciated across the Nation. Giving details, he said that any Indian National can receive information just by dialling a toll free number in the call centre and after a brief formality, the information seeker would get the information just by paying Rs/-10 as the cost. In 2008, about 16,000 calls were received by this call centre Misra added.

But so far as computerisation of other departments is concerned, it is not moving at desired pace. The target of making Finance department a paperless one by the end of 31 March, 2008 could not be achieved. The introduction of Sec-LAN in the state’ secretariat is yet to come in practise and babus still rely on tiring hard copy file work.

It is pertinent to mention here that Sonia Gandhi, the chairperson of UPA had praised this move and had advised all the CMs of cong ruled states to take similar steps so that the ideals and ethos enshrined in the noble RTI Act,2005 are achieved.

TASKS AHEAD- The commission has miles to go before it could achieve the noble and lofty ideals enshrined in this people centric Act. The State Information Commission has to be debureaucratised, because it has become a post retirement placement bureau. The funcioning of this commission has to be made more people friendly, because if visits this commission, he gets a vestige of Courts room discipline, total undesirable and uncongenial. 

INFORMATION COMMISSION VS COURTS- One can draw a comparison between America and India. On the one hand Obama voluntarily signed an executive order making it mandatory for the US administration to make accessible all the documents pertaining policy decisons and any other decison to the public domain. Whereas in India, the Supreme court itself makes an appeal before its subordinate Delhi High court against the order of the CIC, what a paradox. It is easy preach than done. CJI says that the provisions of the RTI are not applicable to the Judges because they, what he said, are constitutional authority. The people sitting at the higher echelon should set examples in the public life. They should have the audacity to abide voluntarily to the provisions of the law of land.

OBAMA ON GLOBAL WARMING AND OIL POLICY

President Barrack Obama yesterday singed an important executive order in the East Room of White House, which marked the beginning of reversal of Bush administration’s environmental policy.

The President has directed the Transport department to frame rules in order to execute and implement the Law of 2007 which requires 40% improvement in the efficiency of gas driven cars, other small vehicles and light trucks by the end of 2020. More specifically, the 2007 Law requires the Cars and light trucks to be driven at an efficiency of 15 KM/Litre. In India, most of the small vehicles specially cars are very fuel efficient and are running even 20 KM/ Litre. Thus the enforcement of this law would help bring down the level of green house gases to a great extent, a pledge Obama had taken during his election campaign.

President has also categorically asked the US Environment Protection Agency (EPA) to reconsider the request of California to allow it to frame tougher Rules and Regulation to ensure reduction in emission of green house gases (GHGs), a request which was flatly turned down by the Bush administration. California wants a reduction of 30% in the emission of GHGs by the end of 2016. As many as 18 other states are also willing to frame similar rules of their own for reducing emission of GHGs.

Reiterating his commitment towards checking global warming, he has appointed Todd Stern as CLIMATE ENVOY of USA. Mr. Todd had served as chief negotiator under Clinton administration in Kyoto protocol talks during 1997-99 and is said to have very positive out look vis-à-vis climatic change and global warming. 

The America oil policy is also all set to under go a radical change. Obama hinted this at the First press conference held at White House after taking oath. He asked the department to take steps to ensure that more fuel efficient vehicles are manufactured by the end of 2011. This would decrease the dependence of US on the OPEC and cut our import bills, he said. Obama opined that this would help create more jobs in Detroit and thus accelerate the pace of recovery from the economic down turn in a big way.

It is not out of place to mention that US has a huge oil reserves but it is importing from Gulf so that it can use its own reserve when the ‘wells of Gulf get dry’. This has been the unpronounced oil policy of US over many decades. Government came and went, but this policy remained unchanged. Many experts in international politics are of the opinion that the first Gulf war of 1991 and the Iraq war were fought to establish American hegemony so that the supply of fuel to this country goes unabated and that too at a price fixed not by OPEC but in New York and London.

The process of reversal of the above mentioned policies and their implementation would not be smooth job for Obama as it is likely to break the age old mindset of the neo imperialists in the administration. It would at the same time not be easy for those who may oppose Obama in view of the land slide mandate that has been bestowed on him .

LESSON FOR INDIA- India is a signatory to ‘Kyoto Protocol’ and is thereby obliged to frame rules for reducing emission of GHGs. For achieving target of reducing the emissions set by the Kyoto, India needs to frame tougher laws related to fuel efficiency, because Co2 emission by vehicles is directly related to magnitude of this problem.

According to one estimate, India is the second largest Car market in the world and constitutes 14% of CAGR. India meets 78 % of its fuel demands by imports and is likely to go up to 94% by 2030. This means that the level of emission of GHGs especially Co2 would go up alarmingly over a period of time.

We have one ‘Bureau of Energy Efficiency’ which takes care of this problem. There is a ‘National Action Plan on Climate Change document (NAPCC)’ which postulates many other related topics including emissions of GHGs. Right now, we don’t have any emission specific law, therefore; we desperately require enacting an emission specific legislation for vehicles as the Americans have done in 2007.

Supreme Court of India has already laid down certain guidelines and many of which had been implemented in Delhi. All the Buses and Auto rickshaws in Delhi are now CNG driven. We need to take similar steps in other parts of the country also.

Many experts fix target of 80 gm/ Km by 2020 for India and say that if it is not achieved, we would be among the largest polluting nations in the world. 

Countries like Japan, China, S. Korea, Taiwan and almost all EU countries have emission regulators; therefore there is no reason why a fast developing country like India does not have a regulation in this regard.

THE NATIONAL INVESTIGATION AGENCY

The Mumbai attack by international terrorist organisations shook the psyche of every Indian including the political leaders.The kind of public outcry which erupted was unprecedented both in terms of number and intensity. The Govt lost no time and threw away the wardrob boy, Home Minister quickly and undertook a number of measures. It included establishment of much talked and needed Federal Investigating Agency with more sharp incisors and canine in the Jaws. It is in this perspective, the Parliament has passed the NIA bill and thus the NIA came into being. Simultaneously the Unlawful Activities (Prevention) Amendment Bill was also passed. It gives extra leverage to the law enforcing agencies in dealing with the acts of terror and related organised crime and low intensitly war which is going on for more than decades after the Indo- Pakistan war of 1971. 

HERE IS THE TEXT OF THE ACT WHICH THE PARLIAMENT HAS PASSED-

THE NATIONAL INVESTIGATION AGENCY ACT, 2008

CHAPTER I

PRELIMINARY

1. (1) This Act may be called the National Investigation Agency Act, 2008.

(2) It extends to the whole of India and it applies also—

(a) to citizens of India outside India;

(b) to persons in the service of the Government wherever they may be; and

(c) to persons on ships and aircrafts registered in India wherever they may be.

2. (1) In this Act, unless the context otherwise requires,—

(a) “Agency” means the National Investigation Agency constituted under section 3 ;

(b) “Code” means the Code of Criminal Procedure 1973;

(c) “High Court” means the High Court within whose jurisdiction the Special Court is situated;

(d) “prescribed” means prescribed by rules;

(e) “Public Prosecutor” means a Public Prosecutor or an Additional Public Prosecutor or a Special Public Prosecutor appointed under section 15;

(f) “Schedule” means Schedule to this Act;

(g) “Scheduled Offence” means an offence specified in the Schedule;

(h) “Special Court” means a Special Court constituted under section 11 or, as the

case may be, under section 21;

(i) words and expressions used but not defined in this Act and defined in the Code shall have the meanings respectively assigned to them in the Code.

(2) Any reference in this Act to any enactment or any provision thereof shall, in

relation to an area in which such enactment or such provision is not in force, be construed as a reference to the corresponding law or the relevant provision of the corresponding law, if any, in force in that area.

CHAPTER II

NATIONAL INVESTIGATION AGENCY

3. (1) Notwithstanding anything in the Police Act, 1861, the Central Government mayconstitute a special agency to be called the National Investigation Agency for investigation and prosecution of offences under the Acts specified in the Schedule.

(2) Subject to any orders which the Central Government may make in this behalf,officers of the Agency shall have throughout India in relation to the investigation of scheduled offences and arrest of persons concerned in such offences, all the powers, duties, privileges and liabilities which police officers have in connection with the investigation of offences committed therein.

(3) Any officer of the Agency of or above the rank of Sub-Inspector may, subject to any orders which the Central Government may make in this behalf, exercise throughout India, any of the powers of the officer-in-charge of a police station in the area in which he is present for the time being and when so exercising such powers shall, subject to any such orders as aforesaid, be deemed to be an officer-in-charge of a police station discharging the functions of such an officer within the limits of his station.

4. (1) The superintendence of the Agency shall vest in the Central Government.

(2) The administration of the Agency shall vest in an officer designated as the Director-General appointed in this behalf by the Central Government who shall exercise in respect of the Agency such of the powers exercisable by a Director-General of Police in respect of the police force in a State, as the Central Government may specify in this behalf.

5. Subject to the provisions of this Act, the Agency shall be constituted in such

manner as may be prescribed and the conditions of service of persons employed in the

Agency shall be such as may be prescribed.

Definitions.

Constitution of National Investigation Agency.

5 of 1861.

Superintendence of National investigation Agency.

Manner of constitution of Agency and conditions of service of members.

2 of 1974.

CHAPTER III

INVESTIGATION BY THE NATIONAL INVESTIGATION AGENCY

6. (1) On receipt of information and recording thereof under section 154 of the Code

relating to any Scheduled Offence the officer-in-charge of the police station shall forward the report to the State Government forthwith.

(2) On receipt of the report under sub-section (1), the State Government shall forward the report to the Central Government as expeditiously as possible.

(3) On receipt of report from the State Government, the Central Government shall

determine on the basis of information made available by the State Government or received from other sources, within fifteen days from the date of receipt of the report, whether the offence is a Scheduled Offence or not and also whether, having regard to the gravity of the offence and other relevant factors, it is a fit case to be investigated by the Agency.

(4) Where the Central Government is of the opinion that the offence is a Scheduled

Offence and it is a fit case to be investigated by the Agency, it shall direct the Agency to investigate the said offence.

(5) Notwithstanding anything contained in this section, if the Central Government is

of the opinion that a Scheduled Offence has been committed which is required to be

investigated under this Act, it may, suo motu, direct the Agency to investigate the said offence.

(6) Where any direction has been given under sub-section (4) or sub-section (5), the

State Government and any police officer of the State Government investigating the offence shall not proceed with the investigation and shall forthwith transmit the relevant documents and records to the Agency.

(7) For the removal of doubts, it is hereby declared that till the Agency takes up the investigation of the case it shall be the duty of the officer-in-charge of the police station to continue the investigation.

7. While investigating any offence under this Act, the Agency, having regard to the

gravity of the offence and other relevant factors, may—

(a) if it is expedient to do so, request the State Government to associate itself

with the investigation; or

(b) with the previous approval of the Central Government transfer the case to the

State Government for investigation and trial of the offence.

8. While investigating any Scheduled Offence the Agency may also investigate any

other offence which the accused is alleged to have committed if the offence is connected with the Scheduled Offence.

9. The State Government shall extend all assistance and co-operation to the Agency

for investigation of the Scheduled Offences.

10. Save as otherwise provided in this Act, nothing contained in this Act shall affect the powers of the State Government to investigate and prosecute any Scheduled Offence or other offences under any law for the time being in force.

Investigation of Scheduled Offences. Power to transfer investigation to State Government. Power to investigate connected offences. State Government to extend assistance to National Investigation Agency. Power of State Government to investigate Scheduled Offences.

CHAPTER IV

SPECIAL COURTS

11. (1) The Central Government shall by notification in the Official Gazette, for the trial of Scheduled Offences, constitute one or more Special Courts for such area or areas, or for such case or class or group of cases, as may be specified in the notification.

(2) Where any question arises as to the jurisdiction of any Special Court, it shall be referred to the Central Government whose decision in the matter shall be final.

(3) A Special Court shall be presided over by a judge to be appointed by the Central

Government on the recommendation of the Chief Justice of the High Court.

(4) The Agency may make an application to the Chief Justice of the High Court for

appointment of a Judge to preside over the Special Court .

(5) On receipt of an application under sub-section (4), the Chief Justice shall, as soon as possible and not later than seven days, recommend the name of a judge for being appointed to preside over the Special Court.

(6) The Central Government may, if required, appoint an additional judge or additional judges to the Special Court, on the recommendation of the Chief Justice of the High Court.

(7) A person shall not be qualified for appointment as a judge or an additional judge of a Special Court unless he is, immediately before such appointment, a Sessions Judge or an Additional Sessions Judge in any State.

(8) For the removal of doubts, it is hereby provided that the attainment by a person

appointed as a judge or an additional judge of a Special Court of the age of superannuation under the rules applicable to him in the service to which he belongs shall not affect his continuance as such judge or additional judge and the Central Government may by order direct that he shall continue as judge until a specified date or until completion of the trial of the case or cases before him as may be specified in that order.

(9) Where any additional judge or additional judges is or are appointed in a Special

Court, the judge of the Special Court may, from time to time, by general or special order, in writing, provide for the distribution of business of the Special Court among all judges including himself and the additional judge or additional judges and also for the disposal of urgent business in the event of his absence or the absence of any additional judge.

12. A Special Court may, on its own motion, or on an application made by the Public

Prosecutor and if it considers it expedient or desirable so to do, sit for any of its proceedings at any place other than its ordinary place of sitting.

13. (1) Notwithstanding anything contained in the Code, every Scheduled Offence

investigated by the Agency shall be tried only by the Special Court within whose local jurisdiction it was committed.

(2) If, having regard to the exigencies of the situation prevailing in a State if,—

(a) it is not possible to have a fair, impartial or speedy trial; or 

(b) it is not feasible to have the trial without occasioning the breach of peace or

grave risk to the safety of the accused, the witnesses, the Public Prosecutor or a judge of the Special Court or any of them; or

(c) it is not otherwise in the interests of justice,the Supreme Court may transfer any case pending before a Special Court to any other Special Court within that State or in any other State and the High Court may transfer any case pending before a Special Court situated in that State to any other Special Court within the State.

Power of Central Government to constitute Special Courts. Place of sitting. 

Jurisdiction of Special Courts.

(3) The Supreme Court or the High Court, as the case may be, may act under this

section either on the application of the Central Government or a party interested and any such application shall be made by motion, which shall, except when the applicant is the Attorney-General for India, be supported by an affidavit or affirmation.

14.(1) When trying any offence, a Special Court may also try any other offence with

which the accused may, under the Code, be charged at the same trial if the offence is connected with such other offence.

(2) If, in the course of any trial under this Act of any offence, it is found that the accused person has committed any other offence under this Act or under any other law, the Special Court may convict such person of such other offence and pass any sentence or award punishment authorised by this Act or, as the case may be, under such other law.

15.(1) The Central Government shall appoint a person to be the Public Prosecutor and

may appoint one or more persons to be the Additional Public Prosecutor or Additional 

Public Prosecutors:Provided that the Central Government may also appoint for any case or class or group of cases a Special Public Prosecutor.

(2) A person shall not be qualified to be appointed as a Public Prosecutor or an Additional Public Prosecutor or a Special Public Prosecutor under this section unless he has been in practice as an Advocate for not less than seven years or has held any post, for a period of not less than seven years, under the Union or a State, requiring special knowledge of law.

(3) Every person appointed as a Public Prosecutor or an Additional Public Prosecutor

or a Special Public Prosecutor under this section shall be deemed to be a Public Prosecutor within the meaning of clause (u) of section 2 of the Code, and the provisions of the Code shall have effect accordingly.

16. (1) A Special Court may take cognizance of any offence, without the accused being

committed to it for trial, upon receiving a complaint of facts that constitute such offence or upon a police report of such facts.

(2) Where an offence triable by a Special Court is punishable with imprisonment for a

term not exceeding three years or with fine or with both, the Special Court may, notwithstanding anything contained in sub-section (1) of section 260 or section 262 of the Code, try the offence in a summary way in accordance with the procedure prescribed in the Code and the provisions of sections 263 to 265 of the Code, shall so far as may be, apply to such trial: Provided that when, in the course of a summary trial under this sub-section, it appears to the Special Court that the nature of the case is such that it is not desirable to try it in a summary way, the Special Court shall recall any witnesses who may have been examined and proceed to re-hear the case in the manner provided by the provisions of the Code for the trial of such offence and the said provisions shall apply to and in relation to a Special Court as they apply to and in relation to a Magistrate: Provided further that in the case of any conviction in a summary trial under this section, it shall be lawful for a Special Court to pass a sentence of imprisonment for a term not exceeding one year and with fine which may extend to five lakh rupees. 

(3) Subject to the other provisions of this Act, a Special Court shall, for the purpose of trial of any offence, have all the powers of a Court of Session and shall try such offence as if it were a Court of Session so far as may be in accordance with the procedure prescribed in the Code for the trial before a Court of Session.

(4) Subject to the other provisions of this Act, every case transferred to a Special Court under sub-section (2) of section 13 shall be dealt with as if such case had been transferred under section 406 of the Code to such Special Court.Powers of Special Courts with respect to other offences.

Public Prosecutors.Procedure and powers of Special Courts.

(5) Notwithstanding anything contained in the Code, but subject to the provisions of

section 299 of the Code, a Special Court may, if it thinks fit and for reasons to be recorded by it, proceed with the trial in the absence of the accused or his pleader and record the evidence of any witness, subject to the right of the accused to recall the witness for cross-examination. 

17. (1) Notwithstanding anything contained in the Code, the proceedings under this

Act may, for reasons to be recorded in writing, be held in camera if the Special Court so desires. 

(2) On an application made by a witness in any proceeding before it or by the

Public Prosecutor in relation to such witness or on its own motion, if the Special Court is satisfied that the life of such witness is in danger, it may, for reasons to be recorded in writing, take such measures as it deems fit for keeping the identity and address of such witness secret.

(3) In particular, and without prejudice to the generality of the provisions of subsection 

(2), the measures which a Special Court may take under that sub-section may include—

(a) the holding of the proceedings at a place to be decided by the Special Court;

(b) the avoiding of the mention of the names and addresses of the witnesses in

its orders or judgments or in any records of the case accessible to public;

(c) the issuing of any directions for securing that the identity and address of the

witnesses are not disclosed; 

(d) a decision that it is in the public interest to order that all or any of the

proceedings pending before such a Court shall not be published in any manner.

(4) Any person who contravenes any decision or direction issued under sub-section(3) shall be punishable with imprisonment for a term which may extend to three years and

with fine which may extend to one thousand rupees.

18. The trial under this Act of any offence by a Special Court shall be held on day-today basis on all working days and have precedence over the trial of any other case against the accused in any other court (not being a Special Court) and shall be concluded in preference to the trial of such other case and accordingly the trial of such other case shall, if necessary, remain in abeyance.

19. Where, after taking cognizance of any offence, a Special Court is of the opinion

that the offence is not triable by it, it shall, notwithstanding that it has no jurisdiction to try such offence, transfer the case for the trial of such offence to any court having jurisdiction under the Code and the Court to which the case is ransferred may proceed with the trial of the offence as if it had taken cognizance of the offence.

20. (1) Notwithstanding anything contained in the Code, an appeal shall lie from any

judgment, sentence or order, not being an interlocutory order, of a Special Court to the High Court both on facts and on law.

(2) Every appeal under sub-section (1) shall be heard by a bench of two Judges of the

High Court and shall, as far as possible, be disposed of within a period of three months from the date of admission of the appeal.

(3) Except as aforesaid, no appeal or revision shall lie to any court from any judgment,sentence or order including an interlocutory order of a Special Court.

(4) Notwithstanding anything contained in sub-section (3) of section 378 of the Code,

an appeal shall lie to the High Court against an order of the Special Court granting or refusing bail.

(5) Every appeal under this section shall be preferred within a period of thirty days

from the date of the judgment, sentence or order appealed from:

Protection of witnesses. Trial by Special Court to have precedence.

Power to transfer cases to regular courts.

Appeals.

Provided that the High Court may entertain an appeal after the expiry of the said

period of thirty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of thirty days:Provided further that no appeal shall be entertained after the expiry of ninety days.

21. (1) The State Government may constitute one or more Special Courts for the trial of offences under any or all the enactments specified in the Schedule.

(2) The provisions of this Chapter shall apply to the Special Courts constituted by the State Government under sub-section (1) and shall have effect subject to the following modifications, namely—

(i) references to “Central Government” in sections 11 and 15 shall be construed

as references to State Government;

(ii) reference to “Agency” in sub-section (1) of section 13 shall be construed as

a reference to the “investigation agency of the State Government”;

(iii) reference to “Attorney-General for India” in sub-section (3) of section 13

shall be construed as reference to “Advocate-General of the State”.

(3) The jurisdiction conferred by this Act on a Special Court shall, until a Special Court is constituted by the State Government under sub-section (1) in the case of any offence punishable under this Act, notwithstanding anything contained in the Code, be exercised by the Court of Session of the division in which such offence has been committed and it shall have all the powers and follow the procedure provided under this Chapter.

(4) On and from the date when the Special Court is constituted by the State Government the trial of any offence investigated by the State Government under the provisions of this Act, which would have been required to be held before the Special Court, shall stand transferred to that Court on the date on which it is constituted.

CHAPTER V

MISCELLANEOUS

22. The High Court may, by notification in the Official Gazette, make such rules, as it may deem necessary for carrying out the provisions of this Act relating to Special Courts within its territory.

23. (1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette make such provisions, not inconsistent with the provisions of this Act, as may appear to it to be necessary or expedient for removing the difficulty:Provided that no order shall be made, under this section after the expiration of two years from the commencement of this Act.

(2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament.

24. (1) The Central Government may, by notification in the official Gazette, make rules for carrying out the provisions of this Act.

(2) In particular, and without prejudice to the generality to the foregoing power, such rules may provide for all or any of the following matters, namely:—

(a) the manner of constitution of the Agency and the conditions of service of

persons employed in the Agency under section 5; Power of State Government to institute Special Courts. Power of High Courts to make rules.

Power to remove difficulties.

Power to make rules.

(b) any other matter which is required to be, or may be, prescribed.

25. Every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agrees in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

Laying of rules.

THE SCHEDULE

[See section 2(1)(f)]

1. The Atomic Energy Act 1962 (33 of 1962);

2. The Unlawful Activities (Prevention) Act, 1967 (37 of 1967);

3. The Anti-Hijacking Act, 1982 (65 of 1982);

4. The Suppression of Unlawful Acts Against Safety of Civil Aviation Act, 1982 (66 of

1982);

5. The SAARC Convention on (Suppression of Terrorism) Act 1993 (36 of 1993);

6. The Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed

Platforms on Continental Shelf Act 2002 (69 of 2002);

7. The Weapons of Mass Destruction and Their Delivery Systems (Prohibition of

Unlawful Activities) Act, 2005 ( 21of 2005);

8. Offences under—

(a) Chapter VI of the Indian Penal Code [sections 121 to 130 (both inclusive)];

(b) Sections 489-A to 489-E (both inclusive) of the Indian Penal Code.

बिहार में स्ट्राइक; कितना उचित?

THE indefinite strike of Non-gazetted employees (NGE) of the state govt entered 7th day today. All efforts of the govt so far has failed to yield any positive results and all the govt offices right from state secretariat to block look deserted. Strike sponsored by Bihar State Non-Gazetted Employees Federation (BSNGEF),(BSNGEF) Gope group, Bihar State Secretariat Services Association (BSSA) and a host of similar organisations began on 7th January has brought the state’s machinery to a grinding halt.

Majority of the departments are already lagging behind the target in spending the ‘Plan head’ allotment. In fact, up to 31st October, average percentage of expenditure in ‘Plan head’ is only 31.91%. Some of the key departments like IT, Commercial taxes, sugar cane transport and Excise have failed to make any expenditure and it is hopelessly zero percent. The ongoing strike has made the task of achieving target by end of this fiscal, almost impossible.

Some people say that had the govt formed ‘fitment committee’ somewhere in sep-October of the previous month; this strike could have been averted. The outspoken ministers issued statements in the press that the govt is willing to announce 6th pay panel on the eve of dussehra but the govt did not announce anything even in the last week of December, therefore the employees got impatient.

On the other hand the govt is in tight financial position. According to the state govt’s budget estimate, state’s own revenue generation for current fiscal is 5680.71 crore, whereas; the state’s share in central taxes is 19094.31 crores. The govt’s plan expenditure is 135000 crore (it includes central grants and central sponsored schemes also). The govt has to make about Rs/-8000 crore expenditure on pay and 2000 crores on pension.

The govt has already accepted to pay the employees according to 6th pay panel report, which would add about 30% to the state’s coffer increasing the expenditure by about 3000 crore annually.

The present hitch is about the payment of arrears. The govt wants to give it from 1st April, 2007, whereas; the agitating employees demand it from 1st January, 2006. If the govt accepts this demand, it would have to make an additional about 2000 crore payment. Thus the govt will be left with a very meagre amount for the developmental as well as other plan and non-plan expenditure for the state.

Some senior officer on the condition of anonymity said that had IAS, IPS and IFS officers not taken their arrears from 1st January, 2006, the NGE unions would have not resorted to strikes, because the leaders of the NGE say that if the state’s coffer is not in a happy position, why did Babus take arrears from 1st January, 2006. They further say that if these babus refund the arrears, they would call off their strikes.

WHAT GOVERNMENT SHOULD DO

The government must come up with a transparent and lucid statement before the public at large and should tell them what the govt is doing. The IAS and IPS and other all India class I officer should voluntarily eschew their claim of arrears from January the 1st,2006, and tell the govt to re-fund back their payment. This would give a very good signal to the denizens of the state. It apparently looks discriminatory if they withdraw arrears from January 2006 and ask other to do the same from April,2007. We all know that the state is under tremendous financial constrainsts. On the one hand the millions of people are half fed and we demand for extra. Is it fair. We all should contribute to the economic development of the state. The CM is desperately trying to move things in good direction, we all , therefore should help him in this effort