Sunday, October 28, 2012

Unjustified judicial intervention could compromise the good the right to information is doing



                                Don't kill the RTI

Unjustified judicial intervention could compromise the good the right to information is doing

Perhaps the biggest contribution of our Parliament towards promoting greater accountability in independent India is the enactment of the Right to Information (RTI) Act, 2005. If, as they say, information is power, then the RTI Act has been a veritable 'Brahmastra' in the hands of the Indian public. It has been extremely successful in empowering people with information held by public authorities.

The Indian RTI experiment has proved that right to information is a powerful tool that serves to bridge the democratic deficit created by increasing inequality and differences in access to opportunities. Countless Indians are now able to check the status of their ration cards, below poverty line (BPL) cards, passports, application for public schemes etc. The RTI has made the state machinery more accessible and easier to manage, especially for the poor and vulnerable sections of society. An important reason why this has been so is because the Act has an effective and reasonably efficient implementation machinery consisting of the state and central chief information commissioners (CICs) who have the power to give effect to the provisions of this Act.

This success story of the RTI Act has, however, encountered a significant reversal in the recent judgment of the Supreme Court in Namit Sharma's case. In this case, a public interest litigation was filed challenging the constitutionality of Ss 12 and 15 of the RTI Act, 2005, dealing with appointment of the information commissioners. In a single stroke, the court completely upset the established RTI machinery with disastrous consequences for the public at large.

The court held that the commission is a "judicial tribunal" having the "trappings of a court". Given this, it reached some surprising conclusions. It held that the information commissioners "shall henceforth work in benches of two each...one of them being a 'judicial member', while the other being an 'expert member'." The appointment authorities were directed to "prefer a person who is or has been a judge of the high court" for appointment as information commissioners. It was also held that the CICs "shall only be a person who is or has been a chief justice of the high court or a judge of the Supreme Court of India".

There are a number of flaws in the reasoning. First, equating the information commissions with a "judicial tribunal" is clearly erroneous. The only issue to be decided before the commission is whether information, which is already available with the autho-rities, should be disclosed or not. The commission does not therefore dispense justice (like a court), it merely deals with disclosure of information.

Second, the Act already provides certain qualifications for appointments to the post of information commissioners ("persons of eminence" and "knowledge and experience" in particular fields). However, the court has completely rewritten the provisions of the Act by insisting on qualifications that go beyond what has been prescribed by the Act, and further, by specifically laying down the requirement of two-person benches, having at least one judicial member. This is a clear case of judicial overreach where the court has virtually legislated provisions of law.

More importantly, there are important practical concerns that flow from this judgment, and which the court has unfortunately glossed over. A huge fallout by way of immediate effect of this judgment would be the cessation of the acti-vities of all the information commissions until members with judicial background are appointed. The position of the current incumbents to the post of CICs becomes precarious as they cannot continue to work as per the SC decision. It is completely unclear whether they would resign or be removed — and if so, under what provision?

Till the time the judicial experts are appointed, the number of second appeals pending with the information commission would rise by a huge number. The central information commission now has 11 posts, none of which is held by a member with a judicial background. Three posts are vacant. For the commission to work in benches of two, it has to have at least 12 members. Of the 12, six have to be judicial members, which means a minimum of two of the existing members have to be replaced.

But there are two problems here. All the members do not retire at the same time. Besides, it is nearly impossible under the RTI Act to remove an incumbent commissioner. If the ruling can come into effect only after the members retire, it is unclear what will happen in the interim. Even when judicial members join, the bench of two members in a team is likely to slow down the disposal rate because there will only be half the outlets dealing with complaints, not to mention the increased time taken when two members deliberate.

There is no doubt that reforms are necessary in the process of appointments of information commissioners to make it more transparent; at present, mostly bureaucrats are appointed to these posts. The information commissions should not become a retiree's club. But the result of the SC's judgment is far worse. Information commissions are not manned by judges in any other country.

Namit Sharma is a regressive decision that only hampers the working of the information commissions by making it more legalistic and complex. It creates more problems while solving none. A review of the decision is pending before the SC, and it is hoped that the court takes into account these genuine concerns while relooking at this issue.

-  By Ajit Prakash Shah ( The writer is former chief justice of the Delhi high court.)
Courtesy : The Times of India, Oct 27, 2012

Saturday, October 27, 2012

21st meeting of the Standing Committee of Voluntary Agencies (SCOVA) held on 27.09.2012 at Civil Services Officers' Institute (CSOI), Kasturba Gandhi Marg, New Delhi

Grant of Dearness Relief to Central Government Pensioners who are in receipt of provisional pension or Pension in the pre-revised scale of 5th CPC w.e.f. 1.7.2012.

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McKinsey and Company Managing Partner Rajat Gupta handed two-year jail term .







 

Washington, October 25, 2012
Rajat Gupta handed two-year jail term
Narayan Lakshman
 
AP Former Goldman Sachs director Rajat Gupta leaves federal court in New York. File photo
TOPICS
Rajat Gupta (63), the former Goldman Sachs Director and McKinsey and Company Managing Partner convicted of supplying confidential information to jailed hedge fund boss Raj Rajaratnam, received a two-year jail term from U.S. Judge Jed Rakoff, even as one of the most spectacular insider-trading cases on Wall Street since the financial crisis of 2008 drew to a climax. He was also ordered to pay a fine of $5 million.
In June 2012 a jury convicted Mr. Gupta on four criminal felony counts of conspiracy and securities fraud related to his passing on material non-public information on Goldman Sachs to Mr. Rajaratnam, who is himself currently serving out an 11-year jail term.
While some raised eyebrows at the length of the prison term, Judge Rakoff said that Mr. Gupta was “a good man,” and that his court “has never encountered a defendant whose prior history suggests such an extraordinary devotion, not only to humanity writ large, but also to individual human beings in their times of need.” Yet he added, “But the history of this country and the history of the world is full of examples of good men who did bad things.”
In a formal statement in court Mr. Gupta said, “The last 18 months have been the most challenging of my life since I lost my parents as a teenager... I regret terribly the impact on my family, friends and institutions that are dear to me.”
Charges specifically stemmed from allegations that Mr. Gupta placed a call to Mr. Rajaratnam after learning that Goldman Sachs had approved a $5-billion investment by Warren Buffett’s Berkshire Hathaway Inc. As part of its crackdown on impropriety on Wall Street the U.S. Justice Department pressed the case against the Kolkata-born graduate of Harvard Business School since October last year and he is one among 23 individuals who faced criminal charges in connection to Mr. Rajaratnam’s Galleon Hedgefund.
While prosecutors in the case, led by Indian-American U.S. Attorney Preet Bharara, argued for a minimum of ten years in prison for Mr. Gupta, defence lawyer Gary Naftalis asked Judge Rakoff for probation and leniency, noting that Mr. Gupta was willing to shoulder a community service sentence in rural districts of Rwanda entailing work with local healthcare programme to combat HIV, malaria, poverty and food insecurity.
After sentencing Mr. Bharara said, “Rajat Gupta now must face the grave consequences of his crime - a term of imprisonment. His conduct has forever tarnished a once-sterling reputation that took years to cultivate. We hope that others who might consider breaking the securities laws will take heed from this sad occasion and choose not to follow in Gupta's footsteps.”
Defence lawyers also noted that a lengthy prison sentence would undermine Mr. Gupta’s support for new development initiatives, such his work with the Urban Institute of India, aimed at bringing “the private sector, academia and the Indian government together to address accelerating migration to India's cities.”
In issuing his sentence the judge may have assigned weight to the fact that Mr. Gupta reportedly did not gain personally in terms of material benefit, from tipping off Mr. Rajaratnam during a phone call shortly after a Goldman board meeting. Mr. Rajaratnam, contrarily, was said to have made $75 million off the trades he made based on the information gleaned from Mr. Gupta.
Mr. Gupta, who may have the option to request permission to remain out of prison until his case is heard by the Second Circuit Appeals Court for New York‘s Southern District, also received close to 400 letters of support from high-profile associates praising his philanthropic work, including Microsoft Chairman Bill Gates and former United Nations Secretary-General Kofi Annan.
Mr. Gates was quoted as saying that while he was “not in a position to comment on any of the particulars of the case against him... [he wanted] to round out Rajat's profile as you consider the appropriate sentence for him.” Mr. Annan similarly said, “I urge you to recognise Rajat for the good he has done in the world, to give him the credit that he deserves for helping others and to take into account his efforts to improve the lives of millions of people.”
Judge Rakoff, however, is likely to have faced the complex task of balancing these dimensions of Mr. Gupta’s case with prosecutors’ arguments that his insider trading and conspiracy were “shocking” and that his “crimes are extraordinarily serious and damaging to the capital markets.
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