Monday, September 10, 2012

Is cartoonist Aseem Trivedi's arrest just?

Corruption has unarguably become the largest hurdle in the development of our nation. People are fed up of this problem and it is good to see a lot of voices being raised against corruption. For a while now, there have been demands for strong legislation to tackle this problem. The problem arises when the same people demanding strong legislation break laws to have their voices heard. This seems to be case with Aseem Trivedi, whose latest set of cartoons have led to his arrest and subsequent judicial custody. Aseem Trivedi has been charged under Section 124A of the Indian Penal Code, 1860; Section 66A, Information Technology Act, 2000; and Section 2 of Prevention of Insults to National Honour Act, 1971. While Trivedi's actions might have been in good faith, it is necessary to realise that parodying national symbols is unlawful and that there are other effective ways to spread ones message. Our national symbols are a reflection of the true spirit of our Constitution and if these same symbols are perturbed or imitated then the sanctity of the Constitution gets damaged. 

I would like to invite comments from readers on this issue. But before doing so, I want to quote the articles under which Aseem Trivedi has been charged.


INDIAN PENAL CODE, 1860, Section 124A. Sedition 
124A. Sedition.— Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.

Explanation 1 - The expression “disaffection” includes disloyalty and all feelings of enmity.

Explanation 2 - Comments expressing disapprobation of the meas­ures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

Explanation 3 - Comments expressing disapprobation of the admin­istrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.


THE PREVENTION OF INSULTS TO NATIONAL HONOUR ACT, 1971, Section 2. Insult to Indian National Flag and Constitution of India
Whoever in any public place or in any other place within public view burns, mutilates, defaces, defiles, disfigures, destroys, tramples upon or otherwise shows disrespect to or brings into contempt (whether by words, either spoken or written, or by acts) the Indian National Flag or the Constitution of India or any part thereof, shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both. 

Explanation 1 – Comments expressing disapprobation or criticism of the Constitution or of the Indian National Flag or of any measures of the Government with a view to obtain an amendment of the Constitution of India or an alteration of the Indian National Flag by lawful means do not constitute an offence under this section. 

Explanation 2 – The expression, “Indian National Flag” includes any picture, painting, drawing or photograph, or other visible representation of the Indian National Flag, or of any part or parts thereof, made of any substance or represented on any substance. 

Explanation 3 – The expression “public place” means any place intended for use by, or accessible to, the public and includes any public conveyance. 

Explanation 4 - The disrespect to the Indian National flag means and includes— 
(a) a gross affront or indignity offered to the Indian National Flag; or 
(b) dipping the Indian National Flag in salute to any person or thing; or 
(c) flying the Indian National Flag at half-mast except on occasions on which the Flag is flown at half-mast on public buildings in accordance with the instructions issued by the Government; or 2
(d) using the Indian National Flag as a drapery in any form whatsoever except in state funerals or armed forces or other para-military forces funerals; or 
(e) using the Indian National Flag:- 
(i) as a portion of costume, uniform or accessory of any description which is worn below the waist of any person; or 
(ii) by embroidering or printing it on cushions, handkerchiefs, napkins, undergarments or any dress material; or 
(f) putting any kind of inscription upon the Indian National Flag; or 
(g) using the Indian National Flag as a receptacle for receiving, delivering or carrying anything except flower petals before the Indian National Flag is unfurled as part of celebrations on special occasions including the Republic Day or the Independence Day; or 
(h) using the Indian National Flag as covering for a statue or a monument or a speaker’s desk or a speaker’s platform; or 
(i) allowing the Indian National Flag to touch the ground or the floor or trail in water intentionally; or 
(j) draping the Indian National Flag over the hood, top, and sides or back or on a vehicle, train, boat or an aircraft or any other similar object; or 
(k) using the Indian National Flag as a covering for a building; or 
(l) intentionally displaying the Indian National Flag with the “saffron” down.


INFORMATION TECHNOLOGY ACT, 2000, Section 66A. Punishment for sending offensive messages through communication service, etc.
Any person who sends, by means of a computer resource or a communication device,-
(a) any information that is grossly offensive or has menacing character; or
(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently makes by making use of such computer resource or a communication device,
(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages shall be punishable with imprisonment for a term which may extend to three years and with fine.

Explanation: For the purposes of this section, terms "Electronic mail" and "Electronic Mail Message" means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, image, audio, video and any other electronic record, which may be transmitted with the message.

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Monday, September 3, 2012

3 Sep 2012: Three bills passed in the Lok Sabha amidst the continuing chaos

For the past few days, the Parliament has continually been adjourned and no work has been carried out as a result. As chaos continued in the Parliament today with the BJP, Shiv Sena and some other allies continuing to protest against the government over the col block allotment issue, the government and its allies decided to push ahead with the business of the house in the Lok Sabha and passed three bills through oral vote. The bills passed were the Women Against Sexual Harassment at Workplace Bill, 2010; the North-Eastern Areas (Reorganisation) Amendment Bill, 2011; and the National Highways Authority of India (Amendment) Bill, 2011. The Prohibition of Employment as Manual Scavengers and their Rehabilitation Bill, 2012, was also introduced by the government today. Meanwhile, the Rajya Sabha was adjourned without any business being conducted for the ninth straight day.
Information from today's Lok Sabha session (Source: The Lok Sabha Secretariat) -
As for the Rajya Sabha, there is not much to share from today's session as it was adjourned quickly.



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Monday, August 27, 2012

Assembling to protest; when is an assembly unlawful?

The detention of Arvind Kejriwal and his aides yesterday, and the of recent protests by Baba Ramdev made me wonder as to what the legal stand is on assembling together for a peaceful protest. As we have seen from these recent events and many such events in the past, gathering and protesting in public, even though it might be by peaceful means, can lead to arrest. While right to freedom is a fundamental right of every citizen in India, including freedom to assemble, an assembly can deemed unlawful in certain situations. In India, Sections 141-143, 144, 145 and 149-152 of the India Penal Code, 1860, are the main sections which cover different aspects of assembling peacefully but unlawfully.

Section 141. Unlawful assembly 

An assembly of five or more persons is designated an “unlawful assembly”, if the common object of the persons composing that assembly is—

First.— To overawe by criminal force, or show of criminal force, 1[the Central or any State Government or Parliament or the Legis­lature of any State], or any public servant in the exercise of the lawful power of such public servant; or

Second.— To resist the execution of any law, or of any legal process; or

Third.— To commit any mischief or criminal trespass, or other offence; or

Fourth.— By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or

Fifth.— By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.

Section 142. Being member of unlawful assembly

Whoever, being aware of facts which render any assembly an unlawful assembly, intention­ally joins that assembly, or continues in it, is said to be a member of an unlawful assembly.

Section 143. Punishment

Whoever is a member of an unlawful assembly, shall be punished with imprisonment of either description for a term which may extend to six month, or with fine, or with both.

Section 145. Joining or continuing in unlawful assembly, knowing it has been commanded to disperse

Whoever joins or continues in an unlawful assembly, knowing that such unlawful assembly has been commanded in the manner prescribed by law to disperse, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

Section 149. Every member of unlawful assembly guilty of offence committed in prosecution of common object

If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members or that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.

Section 150. Hiring, or conniving at hiring, of persons to join unlawful assembly

Whoever hires or engages, or employs, or promotes, or connives at the hiring, engagement or employment of any person to join or become a member of any unlawful assembly, shall be punishable as a member of such unlawful assembly, and for any offence which may be committed by any such person as a member of such unlawful assembly in pursuance of such hiring, engagement or employment, in the same manner as if he had been a member of such unlawful assembly, or himself had committed such offence.

Section 151. Knowingly joining or continuing in assembly of five or more persons after it has been commanded to disperse

Whoever knowingly joins or continues in any assembly of five or more persons likely to cause a disturbance of the public peace, after such assembly has been lawfully commanded to disperse, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.

Section 152. Assaulting or obstructing public servant when suppressing riot, etc. 

Whoever assaults or threatens to assault, or obstructs or attempts to obstruct, any public servant in the discharge of his duty as such public servant, in endeavouring to disperse an unlawful assembly, or to suppress a riot or affray, or uses, or threatens, or attempts to use criminal force to such public servant, shall be punishable with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
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Today in the Parliament: PM's speech on the coal block allotment

Deadlock continues in the Parliament over the coal block allotment issue. The house was adjourned on Friday sans any discussions. BJP continued to disrupt the house today demanding the PM's resignation which lead to the Parliament being adjourned once again. However, the PM broke his silence and gave a statement on the audit report on allocation of coal blocks and augmentation of coal production in both the houses even as BJP and other opposition parties kept raising slogans in the Parliament against the government. The main highlights of his speech were that he did assume full responsibility for the situation but the CAG report grossly misinterprets facts. While there are losses in coal block allotment because of the end objective not being generating revenue, they are nowhere near to the tune of what the CAG report highlight. See the complete speech below (Source: Press Information Bureau) -
PM’s statement in Parliament on the Performance Audit Report on Allocation of Coal Blocks and Augmentation of Coal Production
I seek the indulgence of the House to make a statement on issues regarding coal block allocations which have been the subject of much discussion in the press and on which several Hon’ble members have also expressed concern.
2.         The issues arise from a report of the Comptroller and Auditor General which has been tabled in Parliament and remitted to the Public Accounts Committee.  CAG reports are normally discussed in detail in the Public Accounts Committee, when the Ministry concerned responds to the issues raised. The PAC then submits its report to the Speaker and that Report is then discussed in Parliament.
3.         I seek your indulgence to depart from this established procedure because of the nature of the allegations that are being made and because I was holding the charge of Coal Minister for a part of the time covered by the report. I want to assure Hon’ble Members that as the Minister in charge, I take full responsibility for the decisions of the Ministry. I wish to say that any allegations of impropriety are without basis and unsupported by the facts.
4.         Allocation of coal blocks to private companies for captive use commenced in 1993, after the Coal Mines (Nationalisation) Act, 1973 was amended. This was done with the objective of attracting private investments in specified end uses. As the economy grew in size, the demand for coal also grew and it became evident that Coal India Ltd. alone would not be able to meet the growing demand.
5.         Since 1993, allocation of captive coal blocks was being done on the basis of recommendations made by an inter-Ministerial Screening Committee which also had representatives of State governments. Taking into account the increasing number of applicants for coal block allocation, the Government, in 2003, evolved a consolidated set of guidelines to ensure transparency and consistency in allocation.
6.         In the wake of rapidly growing demand for coal and captive coal blocks, it was the UPA I Government which, for the first time, conceived the idea of making allocations through the competitive bidding route in June 2004.
7.         The CAG report is critical of the allocations mainly on three counts. Firstly, it states that the Screening Committee did not follow a transparent and objective method while making recommendations for allocation of coal blocks.
8.         Secondly, it observes that competitive bidding could have been introduced in 2006 by amending the administrative instructions in vogue instead of going through a prolonged legal examination of the issue which delayed the decision making process.
9.         Finally, the report mentions that the delay in introduction of competitive bidding rendered the existing process beneficial to a large number of private companies. According to the assumptions and computations made by the CAG, there is a financial gain of about Rs. 1.86 lakh crore to private parties.
10.       The observations of the CAG are clearly disputable.
11.       The policy of allocation of coal blocks to private parties, which the CAG has criticised, was not a new policy introduced by the UPA. The policy has existed since 1993 and previous Governments also allocated coal blocks in precisely the manner that the CAG has now criticised.
12.       The UPA made improvements in the procedure in 2005 by inviting applications through open advertisements after providing details of the coal blocks on offer along with the guidelines and the conditions of allotment. These applications were examined and evaluated by a broad based Steering Committee with representatives from state governments, related ministries of the central government and the coal companies. The applications were assessed on parameters such as the techno economic feasibility of the end use project, status of preparedness to set up the end use project, past track record in execution of projects, financial and technical capabilities of the applicant companies, recommendations of the state governments and the administrative ministry concerned.
13.       Any administrative allocation procedure involves some judgment and in this case the judgment was that of the many participants in the Screening Committee acting collectively. There were then no allegations of impropriety in the functioning of the Committee.
14.       The CAG says that competitive bidding could have been introduced in 2006 by amending the existing administrative instructions. This premise of the CAG is flawed.
15.       The observation of the CAG that the process of competitive bidding could have been introduced by amending the administrative instructions is based on the opinion expressed by the Department of Legal Affairs in July and August 2006. However, the CAG’s observation is based on a selective reading of the opinions given by the Department of Legal Affairs.
16.       Initially, the Government had initiated a proposal to introduce competitive bidding by formulating appropriate rules. This matter was referred to the Department of Legal Affairs, which initially opined that amendment to the Coal Mines (Nationalisation) Act would be necessary for this purpose.
17.       A meeting was convened in the PMO on 25 July 2005 which was attended by representatives of coal and lignite bearing states. In the meeting the representatives of state governments were opposed to the proposed switch over to competitive bidding. It was further noted that the legislative changes that would be required for the proposed change would require considerable time and the process of allocation of coal blocks for captive mining could not be kept in abeyance for so long given the pressing demand for coal.  Therefore, it was decided in this meeting to continue with the allocation of coal blocks through the extant Screening Committee procedure till the new competitive bidding procedure became operational. This was a collective decision of the centre and the state governments concerned.
18.       It was only in August 2006 that the Department of Legal Affairs opined that competitive bidding could be introduced through administrative instructions. However, the same Department also opined that legislative amendments would be required for placing the proposed process on a sound legal footing. In a meeting held in September, 2006, Secretary, Department of Legal Affairs categorically opined that having regard to the nature and scope of the relevant legislation, it would be most appropriate to achieve the objective through amendment to the Mines & Minerals (Development & Regulation) Act.
19.       In any case, in a democracy, it is difficult to accept the notion that a decision of the Government to seek legislative amendment to implement a change in policy should come for adverse audit scrutiny. The issue was contentious and the proposed change to competitive bidding required consensus building among various stakeholders with divergent views, which is inherent in the legislative process.
20.       As stated above, major coal and lignite bearing states like West Bengal, Chhattisgarh, Jharkhand, Orissa and Rajasthan that were ruled by opposition parties, were strongly opposed to a switch over to the process of competitive bidding as they felt that it would increase the cost of coal, adversely impact value addition and development of industries in their areas and would dilute their prerogative in the selection of lessees.
21.       The then Chief Minister of Rajasthan Smt. Vasundhara Raje wrote to me in April 2005 opposing competitive bidding saying that it was against the spirit of the Sarkaria Commission recommendations. Dr. Raman Singh, Chief Minister of Chhattisgarh wrote to me in June 2005 seeking continuation of the extant policy and requesting that any changes in coal policy be made after arriving at a consensus between the Central Government and the States. The State Governments of West Bengal and Orissa also wrote formally opposing a change to the system of competitive bidding.  
22.       Ministry of Power, too, felt that auctioning of coal could lead to enhanced cost of producing energy.
23.       It is pertinent to mention that the Coal Mines Nationalisation (Amendment) Bill, 2000 to facilitate commercial mining by private companies was pending in the Parliament for a long time owing to stiff opposition from the stakeholders.
24.       Despite the elaborate consultative process undertaken prior to introducing the amendment Bill in Parliament, the Standing Committee advised the Ministry of Coal to carry out another round of discussions with the States. This further demonstrates that the decision to seek broader consultation and consensus through a Parliamentary process was the right one.
25.       The CAG report has criticised the Government for not implementing this decision speedily enough. In retrospect, I would readily agree that in a world where things can be done by fiat, we could have done it faster. But, given the complexities of the process of consensus building in our Parliamentary system, this is easier said than done.
26.       Let me humbly submit that, even if we accept CAG`s contention that benefits accrued to private companies, their computations can be questioned on a number of technical points. The CAG has computed financial gains to private parties as being the difference between the average sale price and the production cost of CIL of the estimated extractable reserves of the allocated coal blocks. Firstly, computation of extractable reserves based on averages would not be correct. Secondly, the cost of production of coal varies significantly from mine to mine even for CIL due to varying geo-mining conditions, method of extraction, surface features, number of settlements, availability of infrastructure etc. Thirdly, CIL has been generally mining coal in areas with better infrastructure and more favourable mining conditions, whereas the coal blocks offered for captive mining are generally located in areas with more difficult geological conditions. Fourthly, a part of the gains would in any case get appropriated by the government through taxation and under the MMDR Bill, presently being considered by the parliament, 26% of the profits earned on coal mining operations would have to be made available for local area development. Therefore, aggregating the purported financial gains to private parties merely on the basis of the average production costs and sale price of CIL could be highly misleading. Moreover, as the coal blocks were allocated to private companies only for captive purposes for specified end-uses, it would not be appropriate to link the allocated blocks to the price of coal set by CIL.
27.       There are other important technical issues which will be gone into thoroughly in the Ministry of Coal`s detailed response to the PAC and I do not propose to focus on them.
28.       It is true that the private parties that were allocated captive coal blocks could not achieve their production targets. This could be partly due to cumbersome processes involved in getting statutory clearances, an issue we are addressing separately. We have initiated action to cancel the allocations of allottees who did not take adequate follow-up action to commence production. Moreover, CBI is separately investigating the allegations of malpractices, on the basis of which due action will be taken against wrongdoers, if any.
Hon’ble members,
29.       From 1993 onwards, successive governments continued with the policy of allocation of coal blocks for captive use and did not treat such allocations as a revenue generating activity. Let me reiterate that the idea of introducing auction was conceived for the first time by the UPA Government in the wake of increasing demand for captive blocks. Action was initiated to examine the idea in all its dimensions and the process culminated in Parliament approving the necessary legislative amendments in 2010. The law making process inevitably took time on account of several factors that I have outlined.
30.       While the process of making legislative changes was in progress, the only alternative before the Government was to continue with the current system of allocations through the Screening Committee mechanism till the new system of auction based competitive bidding could be put in place. Stopping the process of allocation would only have delayed the much needed expansion in the supply of coal. Although the coal produced thus far from the blocks allocated to the private sector is below the target, it is reasonable to expect that as clearances are speeded up, production will come into effect in the course of the Twelfth Plan. Postponing the allocation of coal blocks until the new system was in place would have meant lower energy production, lower GDP growth and also lower revenues. It is unfortunate that the CAG has not taken these aspects into account.
31.       Let me state emphatically that it has always been the intention of Government to augment production of coal by making available coal blocks for captive mining through transparent processes and guidelines which fully took into account the legitimate concerns of all stakeholders, including the State Governments. The implicit suggestion of the CAG that the Government should have circumvented the legislative process through administrative instructions, over the registered objections of several state governments including those ruled by opposition parties, if implemented would have been undemocratic and contrary to the spirit of the functioning of our federal polity. The facts speak for themselves and show that the CAG’s findings are flawed on multiple counts.
32.       This, in short, is the background, the factual position and the rationale of government’s actions. Now that the report of the CAG is before the House, appropriate action on the recommendations and observations contained in the report will follow through the established parliamentary procedures.
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Thursday, August 23, 2012

23 AUG 2012: Stalemate continues in the Parliament


Today was the third day of the stalemate over the coal block allotment issue with the BJP disrupting the session in both the houses and continuing its demand for the PM's resignation. With many bills pending in the Parliament, the monsoon session now seems to be in jeopardy.


Information from today's Lok Sabha session (Source: The Lok Sabha Secretariat) -
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Wednesday, August 22, 2012

22 AUG 2012: Today in the Parliament

Turmoil continued in the Parliament today with the BJP disrupting proceedings in both the houses even as other parties today seemed to favour debate over disruption. The BJP continues to press forward its demand for the Prime Minister's resignation over the coal block allotment issue while the Congress continues to dismiss the CAG report and denounce the tactics of the opposition.


Information from today's Lok Sabha session (Source: The Lok Sabha Secretariat) -
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Tuesday, August 21, 2012

21 AUG 2012: Today in the Parliament


After the three day break, the Parliament resumed with heated discussions today in both the houses on coal block allotment report of the Comptroller and Auditor General of India. The opposition strongly pushed for the resignation of the Prime Minister, Dr. Manmohan Singh, who also held the coal portfolio at the time of the alleged scam which has led to a loss of Rs. 1.63 lakh crores of revenue as per the CAG report. As a result, the normal business of the Parliament was disrupted and it was adjourned. Controversy also arose when Union Minister, Rajiv Shukla, was heard telling the deputy chairman of the Rajya Sabha, P. J. Kurien, to adjourn the house due to the CAG uproar. Minutes later the house was adjourned for the day. Meanwhile, the NDA government remains firm on its stand that CAG hasn't looked at facts from the Government's point of view whose aim was not to maximise revenue through allotment but safeguard larger interests of the the nation.  


Information from today's Lok Sabha session (Source: The Lok Sabha Secretariat) -
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