Dilemmas Of The Tendulkar Report

A little earlier this year, the Rural Development Ministry set up the Saxena Committee to look into the poverty situation in the country ahead of the Tendulkar Committee Report. This committee, headed by Mr. N.C.Saxena reached the conclusion that poverty in the country stood at an astounding 50% as opposed to the 28.3% for the year 2004-05. Poverty in the country thus far was measured as per an income necessary to enable a person to consume 2400-2100 KCal (Rural-Urban). As such, the necessary income level that marked the poverty line was Rs.365 and Rs.539 for the Rural-Urban categories.

The observation of the Saxena Committee that formed the basis of their conclusions was that the current poverty line could suffice calorie intakes on only about 1800 KCal and thus was erroneous. They proposed that the poverty line be set Rs.500-1000 (Rural-Urban). This apparently hit the Planning Commission way too hard than initially expected. Damage control had to be done. So the first move was that the reports conclusions were branded arbitrary; expectedly then, the exercise of setting the poverty line was termed to be ‘beyond the powers of the committee’ and only the conclusions of the committee set up by the Central Government viz. the Tendulkar Committee’s conclusions would be accepted.

Come December and the storm refused to subside. My previous post, however small, set the contours of what line I would like to think along in considering findings of the Tendulkar Committee. My concerns are threefold:

1.  The financial implications of the revised poverty schedule in the country.

2.  Fate of various poverty alleviation programs as a consequence of the revised report.

3.  About how the government would need to address this situation by making appropriate systematic changes.

A revised minimum wage report by the government this month set the benchmark on minimum wages at Rs.100 per day. Keep this in mind while looking at the 40 Crore people below the poverty line that would like to avail of the benefits of our flagship poverty and employment programs like the NREGA and the JN Rural Development program. Each family under the former is promised 100 days of work a year; this simple calculation would alone account for government expenditure of upwards of Rs. 10 Lakh Crore.

So the question is what are we really doing by raising the bar on poverty statistics. Not only are we severely burdening the exchequer by bringing more people under the poverty fold, we get to tell the world we are a lot poorer than previously thought.  40 crore is a lot of people.

Our strength as a developing nation leis in correctly identifying the exact plight of the poor in our country.  The statistics on poverty in the country cannot be fabricated to be commensurate with our financial capabilities. We are a country with a grossly disparaging income divide; lot of poor people. Therefore whether we like it or not, the solution is in correctly identifying the short comings in our economy and addressing them appropriately. As someone rightly remarked, this is not a 100 mtr sprint but a marathon; and we need to keep our eye on the long-term goals. When the Delhi administration sought to make the city beggar free by the Commonwealth games 2010, if what they actually meant was packing off all the poor and sending them some place else, this is exactly what we should be guarding against.

Now the flip side of such a report will be that it dissolves the benchmark of assessing the success of the poverty alleviation programs being conducted by the government thus far. So if the benefits of a program meant for the previous statistics are judged on the basis of the current report, it doesn’t take a rocket scientist to figure why the centre is hesitating to accept the report. I haven’t been able to get a copy of the report; but what the Centre should ideally do is plan the transition of development from the older statistics to the new one in a phased manner and not mix the two.  Assessing the progress of a flagship program like the NREGA is a very delicate task and it would prove counter productive to readily accept the findings of the Tendulkar Report. However, this is only for the sake of carrying the program forward.

At a normative level, the Tendulkar Report is the true indicator of our country’s poverty statistics. While its consequences shouldn’t act retrospectively, I doubt it as prudent to disregard the conclusions towards understanding how to tackle the future of the country’s poor in the newer areas of Hunger and Education, bills regarding which are pending in the legislatures at the moment.

The Recent Dimension To Judicial Accountability

In 2004, on being accused of a probable bias in judging a case relating to the (then) Vice President, Dick Cheney- Justice Antonin Scalia rejected such accusations by beginning a 21 page memorandum saying he did not believe his impartiality could be ‘reasonably questioned’. Justice Scalia had gone duck hunting with the Vice President a few weeks earlier. He further commented, “If it is reasonable to think that a Supreme Court Justice can be bought so cheap, the Nation is in deeper trouble than I had imagined,”.

4 recent cases of Judges recusal came up in India that time and again reminded me Justice Scalia’s assertion. The issues here were far less controversial. In all 4, the distinguished Judges had pecuniary interests (in the form of shares) in the companies that were parties before them. In Justice Katju’s case, his wife held shares in the company; Justice Raveendran recused himself because his daughter was a lawyer in a firm that did some non-litigation work for one of the parties.

I suppose amidst the hue and cry for Judicial Accountability, we are all making the same remark. But the issue is not all that simple. Judges recusal is not a matter of a ‘probability’ of bias; it is more about the ‘possibility’ of bias. That even an unreal and perceived bias should not end up casting shadows upon the integrity of the Higher Judiciary in the country.

On the other hand, in an Op-Ed column in The Hindu, Senior Advocate of the Supreme Court, Mr. TR Andhyarujina comments, “judges should be made of sterner stuff and should not recuse themselves merely to preserve an appearance of non-bias when there is no real possibility of bias”. He goes on to advance arguments in favour of non-recusal in such matters stating that it was not uncommon for a judge today to have not mobilised savings through investments and therefore, a waiver of conflict on behalf of the parties should be sufficient to ensure an impartial trial.

So the question is if we are infact in a position to determine where to draw the line- what are the instances that would demand that a Judge recuse himself from case. I am inclined to opine in favour of the former: that the slightest possibility of bias, or the appearance thereof must be sufficient reason for recusal; for it is a well known dictum that far more important than justice being done, is the necessity that justice appear to be done.

Think about it.

My guess is you’ll want to have a look at Prashanth Bhushan’s affidavit filed in the Supreme Court in response to contempt charges.

How Poor Were We

The Tendulkar Committee Report (Read Here) has revamped poverty statistics for the year 2004-05 by being.. more inclusive of factors that go into accounting for the poor in the country. Quite true that its not just an income necessary to consume 2100 Calories that should define the poverty line in the country- the Committee instead bases the Poverty Line on a Normative Living Standard that is reflected by the per capita consumption expenditure of commodities and services.

We were therefore, 10% poorer 4 years back.

Think about it.

(while I delve into understanding the implications it should have on future policy considerations by the government)

The RTI and NALSAR – The Case For Examination Of Answer Scripts

End Semester results in NALSAR recently had scandalous undertones to it with disclosures that marks weren’t commensurate with one’s performance in the exams. The issue is cause for concern owing to suspicion as to whether identity of the students was really protected while correcting answer scripts.

The intricacies of the matter apart, Ipshita Ahuja tries to explore the reaches of the RTI Act in figuring whether ‘answer scripts’ are in fact ‘information’ that must be disclosed by the University.

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The Right to Information Act, 2005, has been used in very many interesting ways since its enactment. I was editing a book on the RTI Act as a part of my internship when I started to wonder whether something could be done about the abovementioned answer script situation vis-à-vis the RTI Act.

Section 3 of the RTI Act, 2005, gives any citizen of India the Right to Information. It empowers the citizens of India to seek information from various authorities, and Section 2(j)(i) of the Act gives the right of inspection of work, documents and records. The ambit of the RTI Act is however limited to public authorities. Section 2(h) defines public authority, and of Section 2(h)(d) includes any institution of self-government established under any law under the State Legislature. The Kerala High Court in the case of M.P. Verghese v. Mahatma Gandhi University & Others [AIR 2007 Ker 230] held that that all universities that receive substantial funding from the state, are “public authority” and are thus within the ambit of the Right to Information Act. Thus, NALSAR falls squarely within the ambit of being a public authority since it was established under the National Academy of Legal Studies and Research University Act (Andhra Pradesh Act 34 of 1998) of the Andhra Pradesh State Legislature, and the M.P. Verghese judgment simply re-iterates this.

Answer scripts also fall under the purview of ‘information’, since Section 2 (f) extensively lists out the various items included under ‘information’ – any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models and data material held in any electronic form is deemed to be ‘information’.

Thus, any person can ask for answer scripts by way of a written application with the appropriate fee to the Public Information Officer of the Public Authority as provided for under Section 6(1). On said application, by virtue of Section 7(1), the PIO is obliged to provide the information in thirty days. Section 6 (2) also specifies that the applicant is not required to furnish any reason whatsoever while asking for any piece of information. There is an ongoing debate about the payment of further fees mentioned in Section 7(3); in our case, I doubt any of us has an idea about amount of appropriate fee which has to be paid under Section 6, let alone further fees which may/may not be liable to be charged.

There are recent judgments which uphold the right to look at answer scripts. The case University of Calcutta and Ors.v. Pritam Rooj,AIR 2009 Cal 97 makes for an interesting read. The petitioner, Pritam Rooj, a student who had undertaken (and passed) the B. Sc Part II examination conducted by the University. However, being dissatisfied with his marks in two papers, he made an application under the RTI Act to inspect his papers. The Registrar of the University, also its Public Information Officer, turned down his request. Pritam preferred the writ petition seeking production of the answer scripts before the Hon’ble Court for revaluation/re-examination by an expert examiner as also for withdrawal/recalling of the order of rejection dated. The single judge directed the Respondent to produce the answer sheets; resultantly, the Respondent appealed before a Division Bench of the Calcutta High Court.

The Division bench dealt with two questions -whether answer scripts written by an examinee in course of a public examination is comprehended within the definition of ‘information’ under the RTI Act, and if the answer to the first question is in the affirmative, whether an examinee is entitled to these answer scripts i.e., can access be withheld by the public authority on any valid ground traceable in the RTI Act?

As regards the first issue, the Bench held that an assessed/evaluated answer script of an examine writing a public examination conducted by public bodies like the WBBSE, the CBSE or the Universities which had been created by statutes comes within the purview of ‘information’ as defined in the RTI Act and there was no justifiable reason to construe Section 2 (f) in a constricted sense.

In answer to the second question, the Bench held that there is no ground under which the Respondent University could deny the Petitioner an examination of his answer script. The Bench said that each and every step in a process of examination of a University or Board would be in a public domain and would be in public interest. The Bench also observed that if an examiner’s action is made the subject of public scrutiny it might ensure assessments that are fairer, more reasonable, and absolutely free from arbitrariness and defects.

The Division bench also discussed the contention that the production of answer sheets were against the finality attached with a public examination, and such finality was in the interest of the public (which, incidentally, was one of the grounds relied upon by the Supreme Court in  , AIR 2007 SC 3098). The Court said that inconvenience or unworkability were no grounds to deny information once the answer scripts came within the ambit of ‘information’; denial was only allowed under the exceptions provided for under Section 8, and these did not fall within those categories. The Bench thus ordered the Respondents to produce the answer scripts.

In the 2009 judgment by Ravindra Bhat, J., in the case of ICAI v. Central Information Commissioner and Anr., in W.P. (C) 8529/2009, the Respondents’ contention that since the law as regards answer scripts had been laid down by the Supreme Court, and the candidates who sought the copies of their answer sheets could not do so, was discussed. The cases cited were in Secretary West Bengal Council for Higher Secondary Education v. Ayan Das, AIR 2007 SC 3098 and President, Board of Secondary Education, Orissa and Anr. v. D. Suvankar and Anr., 2007(1) SCC 603.

The Court stated that the decisions in both these cases were similar; the context was vide directions by High Court, requiring revaluation/re-verification in the Suvankar case and direction sto reassess through another examiner in Ayan Das’s case. Both these did not mention or discuss the RTI Act, and the Court was thus not examining information applications under the RTI Act.

The court also discussed the second contention that since the Supreme Court held that there is no right to claim disclosure of answer sheets or copies, and the same is not part of the Right to Freedom of Expression and, therefore, implicitly excluded from the RTI Act. it was stated that no rule or interpretation or judgment of Supreme Court was discussed or relied on the point that the ruling in Suvankar’s case (supra) excluded the right to access answer sheets, which would otherwise fall within the expression and, therefore, would fall within the purview of the RTI Act.

The NALSAR website does provide the name of the Public Information Officer, a step up from the days, just a few months ago, where it did not even have a PIO. However, besides publishing the accounts for one year, little else has been achieved. The ambit of the RTI Act can be extended far beyond procuring answer scripts; there are several unanswered questions to which we, as students, should be able to procure answers by way of the RTI Act. We should, but don’t ever, demand answers to so many questions, such as how much does the NALSAR account really contain? What was done with the difference of amount after several professors left the employment of the university, and faculty members being paid considerably lesser joined in? Exactly how much of the money we pay towards the Mess actually get utilized? Section 4(1) (b)(x) and (xi), in fact, make it mandatory for public authorities to publish the monthly remuneration received by each of its officers and employees, including the system of compensation as provided in its regulations, and the budget allocated to each of its agency, indicating the particulars of all plans, proposed expenditures and reports on disbursements made respectively within 120 days of the operation of the act. The Pritam Rooj judgment also states that it is necessary for every public authority to disseminate the information as stated in Section 4 of the RTI Act.

Sub-section 3 specifies that the information specified in sub-section 1 should be disseminated widely so that it is easily accessible, and the explanation to this sub-section defines “dissemination” as making known or communicated the information to the public through notice boards, newspapers, public announcements, media broadcasts, the internet or any other means, including inspection of offices of any public authority. Clearly, nothing of this sort has been implemented at NALSAR. The website does include a tab on The RTI Act; however, besides giving a bare act of the RTI Act, it provides nothing, for the link to NALSAR and the RTI turns up an error.

The RTI Cell is now unfortunately redundant, however, as individuals, we could, and should, demand much, much more than the information which is currently proffered to the student body.

“The Obvious solution to the ‘Judges Controversy’”: Justice J.S.Verma

I cannot find words to describe my anguish at the thought of a known delinquent being elevated to one of the highest offices in the land. At the same time, I do not claim to be completely aware of the veracity of media reports on the controversy surrounding J.Dinakaran and therefore this post is put forth as an opinion independant of the current crises surrounding the Judiciary.

In 1993, the Hon’ble CJI J.S.Verma wrote an opinion in the 2nd Judges Case, Supreme Court Advocates on Record v. Union of India, whereby he expressly stated that,

“The collective wisdom of the constitutional functionaries involved in the process of appointing a superior judge is expected to ensure that persons of unimpeachable integrity alone are appointed to these high offices and no doubtful person gains entry. It is, therefore, time that all the constitutional functionaries… should be fully alive to the serious implications of their constitutional obligation and be zealous in its discharge in order to ensure that no doubtful appointment is made even if some time a good appointment does not go through. This is not difficult to achieve.”

Hence contrary to general perception that The Supreme Court Collegium is the finality on elevation of Judges, the other two organs have a very clear prerogative, nay, even a Constitutional duty to make sure that where it happens that the Executive/Legislature is in a better position to know of the doubtful integrity of a candidate, They can recommend barring him from holding this most distinguished of offices. Justice Verma goes on to emphatically opine that while it would be a pity if an eligible candidate is not elevated to the Supreme Court based on uncontroverted reports, there would be substantially far more intense and permanent damage done to the integrity of the institution if a wrong appointment is made to this office. The slightest of doubt as to the integrity of a Judge, according to him, is sufficient to bar his name from being considered towards elevation to the Supreme Court. Towards this, the Collegium may not necessarily have the ultimate say and will be obliged to take the aid of the other two organs. Logically, this is what the Hon’ble Judge means when he says that the the process of appointment of judges of the Supreme Court and the High Courts is an integrated ‘participatory consultative process’.

All Constitutional functionaries have a very delicate role to play and the slightest mistake could be fatal. The rare case of non-appointment being a mistake would occur; but that mistake in the ultimate public interest would be far less harmful than a wrongful appointment. Where the Executive is better equipped to ensure this- as in the present situation- it most certainly does have a say that must be given sufficient weightage by the Collegium. This reminds me of an opinion by an eminent Fali Nariman that prescribed institutionalising the Collegium and ensure that its alsmot a body independant of the Supreme Court; ‘almost independant’ because while Judges of the Court will continue to form the Collegium, the process of investigation, selection and appointment will be far more elaborate and meticulous. Most of it makes sense- only that it still fails to grant a significant say in the process to the other two organs of the State. Cross institutional Concurrence is a fundamental element of the theory of separation of powers. ‘Self appointment’ by any wing, is in direct contradiction of this theory. Why should the Judiciary be an exception to the rule.

In my first visit to the Supreme Court yesterday, I was in phenomenal awe of this office and I cannot fathom a more pleasurable feeling than being part of this institution in the business of dispensing justice.

I suppose it is difficult to see how mush damage is being done to the Judiciary through this controversy but I just heard that the Supreme Court Bar Association intends to now boycott the benches of the 5 seniormost judges of The Court. If there must be anything to indicate the crises that the integrity of the Judiciary is in, it is this.

Gender Rights Watch: Nepal

Slightly more than a year since Nepal adopted its Constituent Assembly. ..

A critical issue as regards nations such as Nepal, more so in nations such as Sudan, Afghanistan and Rwanda,- that move towards a more evolved society promising equality and justice is that they seldom account for the very vital issue of addressing past Human Rights violations.

When a nation moves towards establishing a society with the ideals of freedom and equality, it must realise that the people of such nations dont really understand what freedom and equality mean. Laying down a framework of dispensing justice, institutions od public importance.. and democracy involve bringing such notions of a ‘developed society’ to a people that doesnt know they exist, and have an idea of how they function.

Therefore, more important that establishing such institutions, is the attempt at addressing past violations of those very ideals.  investigation Tribunals, Truth Commissions and Commissions for reparation are major components of the first move towards a free society in such nations.

..Slightly more than a year since Nepal adopted its Constituent Assembly when the Maoists made commitments to protect women’s rights, activists in Nepal continue to be at high risks of attack from various hate groups.  Women there  have constantly subjected to various forms of oppression for most of their history thus far. Long periods of sexual subordination of lead notions of gender equality to be skewed by norms that have relentlessly been the axes of differentiation, discrimination and denomination of the ‘fairer’ sex.

The UN High Commissioner for Human Rights recently approached the Nepalese government to extend their mandate by another three years so they can continue to work towards capacity-builidng of national human rights institutions, stating further that the country was deprave of the basic minimum infrastructure even, that was necessary to promote the ideals of gender justice. Their mandate expired in June this year.

The government also has plans of a truth Commission and other transitional justice mechanisms that dont seem to be taking off in the near future. My thoughts end thinking about how disastrous it will be for the country if they proceed to establish a society on such weak foundations without attempting to undo the damage done by a previously heinous society.