2011... Of Protests and Protesters!

As we come to the end of another year, we generally tend to look back at all that stood out, all that was special. Well, what really was the highlight of a tumultuous 2011 were those protests and the protestors of all kind….the good, the bad and some, really ugly!

Even the ‘Time’ selected ‘the Protestor’ as the ‘Person of the Year’. (Read more at http://www.time.com/time/specials/packages/article/0,28804,2101745_2102132_2102373-1,00.html

While the focus of Time was on the global protest scenario starting from Egypt to Wall Street, I would stick to what was going on in our backyard.

Think of the changing tides backed by fasts and protests and the name that immediately strikes our minds is that of Annaji – the angry old man and his gang of “Angry Birds” protesting for a 'STRONG' Lokpal (strong means ''whatever they demand'). As I write this, their third protest for the year is on at Mumbai. Since I have already commented on this in my previous posts, I restrain from getting further into that. My views on this issue continue to remain the same. He has made an huge impact and there is action and debate. Beyond that “One cannot hold the country for ransom”.
There has been progress in terms of the bill in the parliament after 60+ years and the elected representatives are debating on that. The least step would have been to protest post the debate in parliament. The breaking news in television channels while I was scribbling my thoughts late last night was ‘Rajnikant supports Annaji and offers his marriage hall in Chennai for team Anna’. Now here is a man with a larger than life image, who had the golden chance of making big in politics. Unfortunately, he didn’t have the courage or conviction to take that bait. How I wish he had taken up that responsibility and brought about some change rather than indulging in these bystander activities.

Out of all this, how can I miss commenting on the ‘Opposition’! The new-age definition of opposition is ‘the one who opposes everything the ruling party proposes’. Looks like the BJP failed to recall that they were in power for a long period and while they did introduce the bill twice, they could not pass the so called ‘strong’ Lokpal. The Left and their dead ideology (thankfully – they are not in power anywhere now) wanted the moon. The same Left front supported a Congress Government for a long time and they were in selective amnesia about corruption at that time.

Coming to the local protests, the first issue that flashes immediately is that of the nuclear plant located a Koodankulam in Tamil Nadu. A plant where a whopping Rs.14000 crores was spent, is at a limbo due to protests by locals fearing nuclear disaster. Let us go a few steps back and recall that the plant was conceived in 1981 and the work commenced in 1997. This means that 2011 is definitely not the time when you stall a project of this magnitude; there were various stages in which it could have been stalled. Jayalalitha, who is otherwise considered a progressive politician, is also surprisingly playing a spoil sport. We have, at one side, issues linked to rising power tariff and power cuts and on the other, when there is an effort to salvage the power situation through nuclear power – there is nothing but PROTEST.

The second most-talked about (read: protested) issue at hand is the Mullaperiyar dam crisis, an inter-state dispute on for a long time. Well, how it came to the forefront all of a sudden is still a mystery to me! What is rather worrying is the sudden politicization of the dispute resulting in bandhs, burning/ destroying of shops of the Mallu / Tamil community. The issue is quite complex (read more at http://en.wikipedia.org/wiki/Mullaperiyar_Dam)

And here’s to an ultimate paradox! ‘FDI in retail’ - an issue in which the consumer or common man was ignored in the process of protecting the interests of traders. The opposition sent the Government into a tizzy with their protests and backlash. Did the BJP go into “Ghajini-mode” and forget that FDI in retail was part of their 2004 election manifesto. And of course, the TMC and Mamata – Congress, am sure, is still not certain whether the TMC is an ally or an opposition. At least, these politicians could have debated before stalling it.

I am in no way protesting that there should not be protests. But if we take a look at year 2011, things were at a complete standstill and no progress whatsoever was made. Protests, fasts and a lot more… but an underlying, mute question always remains – Who is this protestor? Who is the instigator? What is he protesting for? Why is he protesting? To sum it up and quote from the current rage.............. why this kolaveri!

As those who wish to protest are still going strong, I choose to rest my case.....................

Happenings......

It’s been a while since I have scribbled something….not that I have a string of people yearning to see a new post every second day! Whilst there is so much happening around us across spheres, it was still difficult to zero in on a specific area to ponder and pen down thoughts. In such a case, I though the next best option (read shortcut) was to touch upon a few ‘happenings’.

Rajneeti………

The first thing that crosses our mind is Advaniji ki Rath Yatra! I wonder its relevance at this stage, especially as he is more of a ‘former future prime minister' with no bandwidth among his party men and the masses. He was on a rath yatra against corruption while one of his party’s poster boys was in jail / hospital (interchangeable when it comes to VIPs) for corruption. What’s more is a bomb that was found in Madurai on the same route as his yatra. Who in their senses, will want to disrupt a harmless rath yatra? Anyway, that’s for the security agencies to ponder.

Discussing Rajneeti without talking about Annaji and Lokpal is a non starter. A lot has occurred since his last fast and it’s no rocket science to conclude that things are not in his control anymore. His core team members like Bhushan, Kiran Bedi and Kejriwal are under fire for diverse reasons. Few of the core members have walked out from the morcha and as I speak through my blog, his blog is defunct as his blogger has a different take on the way things are happening. All said and done, let us give the man some credit for the clean notions, but it’s about time he realized that it’s not easy to control even a small group, leave aside a political party. To borrow a word from an article I came across……… “The moot question is that if Anna Hazare cannot get three or four people of integrity in his core team, what would be the fate of Lok Pal?” Read more at…… http://www.sify.com/news/bedi-and-kejriwal-not-the-perfect-role-models-news-columns-lkyxvvfbhch.html

Reports also suggest that the political stand in the Hissar bye-election was purely based on his eagerness to teach a lesson to the Congress and it had nothing to do with corruption. And yes, he always wanted everyone to respond and talk when he was on fast (including the Prime Minister), and when all these allegations against his core members surfaced, he was conveniently on mauna vrath. Despite all claims, although his last fast grabbed a lot of eyeballs, it didn’t get the desired results, thus forcing him to settle for something very inferior to what he bargained for. No Lokpal was passed nor did we see a time-line in which it will be passed. In all probability we can see one more fasting in the near future and the question is how much support the media will give him this time around.

Movie time…

Diwali season, apart from the family diplomacy, is movie time for any Tamilian and am not a rebel here. It’s just the question of which movie to see first and I picked Velayudham, a Vijay film, for the Diwali day. I came out smiling and I was entertained. I had a good time…… No claims of changing the face of Tamil film or saying something new…… it’s simple entertainment (of course, one should like Vijay and his antics to enjoy this one). As it stands, we won’t get to see a Vijay film in its true sense in the near future as reports suggest that his future projects are being directed by the likes of Shankar, Gowtham Menon and AR Murugadas. Next stop was 7 am Arivu, a Suriya film which generated lot of hype. It was a damp squib… While I appreciate the hard work and intensity of Suriya, the makers didn’t know whether to entertain or educate. This movie didn’t do both. I personally believe that liking a film is all about the mindset in which you enter the movie hall. You go with some expectations and you always judge the film against your expectations. The third one I ventured into was Ra-One, marketed to such an extent, that it became a duty of any Indian to have a dekho and by the time I decided to fulfil my responsibility, the critics had crucified the movie and SRK. From where I see it, it was the comparison that did the damage. It was an admirable attempt; it was time-pass; it was paisa vasool. Instead of appreciating SRK for a good attempt, the critics and media chose to crucify him by comparing it with Salman’s ‘cut and paste’ films which did good business. Yes, the Rajni piece was a joke.

And finally….Books…….

Revolution 2020 – that’s the title of the new book by Chetan Bhagat. A potboiler, which is a rehash of his earlier books that offers nothing new.

Is Jan Lokpal the solution to the evil called corruption?

I have, in the past, voiced my thoughts on corruption through this blog. Today what has dragged me to the same topic is the hoopla surrounding the Team Hazare protest that has gained unprecedented momentum. After my “Anna-lysis”, the views expressed below may tag me as an ‘anti-national’! The only solace, however, is the readership that the blog currently enjoys.

Pardon me for being forthright, but I can only say that the current scenario is completely flawed. The Congress Party was plain unlucky by being in power at this juncture (disclaimer – am not a Congressman). Despite tall claims of the opposition parties, they would have acted in the same way as the Congress and Congress would have done what the opposition is doing now. Like every other common man, I am all for the end of this corruption menace – an ideal situation, wishful thinking – which, I think may not change unless people also do their bit…(I am no cynic, unless putting across the reality bluntly is classified as cynicism).

While Team Hazare has created uproar, curiosity, mobilized the country through peace protests, candle light marches, revived the quintessential ‘Gandhi Topi’ and introduced fancy Anna-inspired merchandise, I have a question to ask. Will all these candle light supporters and ‘I Am Anna Crusaders’ take a public pledge that ‘they won’t pay a single paisa as bribe and stick to it’? If their answer happens to be in affirmative, then perhaps there is a possibility that the country makes some headway…

Being a democracy, India has and continues to witness upsides and pitfalls. We have all heard the hullabaloo about the strong sentiments and views expressed by Team Anna. Discussions on television, newspapers, chain e-mails on the “more-popular-than-Abhi-Ash’s-impending-parenthood-and-team-India’s-disastrous-test-performance” Lokpal Bill!! The herd mentality, coupled with insensible and over-the-top media reporting by TRP hungry visual media has led to the crusaders of corruption to hold the country for ransom for almost ten days! From sharp and shrewd CEO’s to the Six Sigma Certified Dabbawalas, from housewives to children, each one is directly or indirectly falling for a lucrative dream that is being offered through Jan Lokball bill – a miraculous end to corruption from every nook and corner of the country. What is rather ironical absurd and annoying to my partially sane mind is the support and solidarity shown to the protest by none other than some ex-chief ministers, union and state ministers who had to vacate their positions due to the very allegation of corruption.

Once again, at the cost of sounding cynical, we must accept the dreaded reality that things are certainly not going to change overnight. The way things are today, the bill may get passed (end of the day – it’s all about votes). But the question to be addressed is – what happens next? To set a parallel, the whole world knows that the once highly ambitious Terrorist and Disruptive Activities (Prevention) Act or TADA did not end terrorism and ended up being misused and abused, leading to a decision of putting it in the back burner after some time.

Let’s break this down a step further. For a bribe to materialize, it needs two parties – a giver and a taker. Now, while the fourth estate is gung-ho about the taker, how are we going to address the issue of giver? Of course, you can say that they are forced to pay and my humble submission is why these evangelists can’t say no. They won’t and that’s the psyche the taker is banking upon.

While several extended examples of the giver-taker mentality can be endlessly listed, on a concluding note I’d like to say that the Jan Lokpal Bill can be a starting point, but not a solution. Unless the media-influenced, frenzied masses gathered on the streets pledge that they would do their bit by not paying bribe and stick to it, by being vigilant and responsible citizens, we are going to have another ineffective legislation.

Team Anna and their crusade is just one side of the coin. We need to wake up (Jaago re in the truest sense) to the fact that by merely passing a bill, corruption will not vanish. Going by that philosophy, crime or criminals should have vanished from the face of the country considering the strong laws to curb that from time immemorial.

Corruption started not when someone asked for a bribe, but when someone agreed to pay!

Here are a few links which, in my opinion, add a second dimension to the as-of-now unilateral thought process.

An article from the New York Times at: http://www.nytimes.com/2011/08/18/world/asia/18iht-letter18.html?_r=1&src=tp&smid=fb-share

Thoughts of Nandan Nilekani at: http://economictimes.indiatimes.com/news/politics/nation/anna-hazares-campaign-simplistic-and-uni-dimensional-nandal-nilekani/articleshow/9681641.cms

An article from the Outlook magazine at:
http://www.outlookindia.com/article.aspx?278063#.TlD_2iIdf8M.facebook

Do we really need a Censor Board!

For those who have been following the news about Prakash Jha’s film Aarakshan, It’s an easy guess as to what prompted me to venture into this area. The film is about various aspects of the education process, the reservation policy being just one of them. The film was banned by the State of Andhra Pradesh, Uttar Pradesh and Punjab. The reason for the ban is multifold – As per the Uttar Pradesh (UP) Government - the film, if released might create law and order problem in the state. As per the Andhra Pradesh government – the film may hurt the sentiments of weaker sections. The Punjab Government which banned the film initially allowed its release after the producer agreed to make certain changes to the concerned scenes. The ban across all these states is based on representations made by the SC/ST panel.

Apparently, the film has remarks about reservation system which is allegedly anti Dalit. Who decides what is anti-Dalit is of course an issue that deserves another post itself.

The biggest joke is that the UP government is banning the film for only 2 months from the date of release. In today’s digital era, with pirated DVD’s flooding the market even before a movie releases (being an eternal movie buff who loves watching movies in cinema halls – can’t still figure out, why can’t this menace be curbed) and movies being aired on satellite channels within few days of their release, which film maker in his right senses will plan a movie re-release after 2 months.

I never gave much thought to the Censor board certificate which precedes the screening of any film. The recent developments around the movie Aarakshan – got me curious enough to dig deeper into, what this Censor Board or CBFC is all about.

In layman terms, The Central Board of Film Certification (popularly known as the Censor Board or CBFC) is set up under the provisions of The Cinematograph Act, 1952. It is a government of India regulatory body under the Ministry of Information and Broadcasting. Films can be publicly exhibited in India only after certification by the Board.

According to the Supreme Court - Film censorship becomes necessary because a film motivates thought and action and assures a high degree of attention and retention as compared to the printed word. The combination of act and speech, sight and sound in semi darkness of the theatre with elimination of all distracting ideas will have a strong impact on the minds of the viewers and can affect emotions. Therefore, it has as much potential for evil as it has for good and has an equal potential to instill or cultivate violent or good behavior. It cannot be equated with other modes of communication. Censorship by prior restraint is, therefore, not only desirable but also necessary.

Fair enough - but the only concern is if a regulatory board set up by the Government of India with 25 members give clearance to a movie, what business do these states have to ban or put an embargo on its release.

The entire visual media were airing shows on these developments with the film makers justifying the film on one side and another section defending the ban – must have clocked good TRPs. The last we hear is that the producer has approached the Supreme Court for removing the stay.

I would like to borrow the words of Komal Nahata – the famed critic’s quote on the development- "It’s politically motivated and brainless with no application of mind. When Censor Board has cleared it, why should anybody have a problem with this?"

If the government cannot uphold or protect the constitutional right of freedom of expression, why do we need such rights? Is it not the right of people to judge the merit in a film once it is cleared by the Censor board?

If the Central Government feels that the Censor Board is doing its job, they should provide protection for the peaceful release of these movies.

Why not regulate Godmen!

When I was watching the theatrics of Ramdev Baba during his fast and the hoopla around it, the thought of regulating the activities of Godmen crossed my mind. Think about it….doesn’t it make sense? While technically the Baba in question may not be a Godman and a yoga teacher by vocation, he certainly passes off as one!

In a country, where laws and regulations are found and scripted by the dozen for every given situation, it is surprising how Godmen and their activities are let off the hook! There seems to be no dearth of scams in this industry (pun intended). Today, these Godmen have become bigger than God and they have achieved a larger status and share of devotion, so much so that people are willing to forgive and forget their atrocities. In the ultimate battle of blind faith versus faith, it is surprising and rather disturbing to see these so called custodians of faith getting away with their antics. This is witnessed across all religions and there is definitely unity to that extent!

So coming back to the opening thought…why not a watchdog for the activities of these Godmen? Envisage a regulation called “Godmen (Regulation and Development) Act, 2011”. It will encompass registration procedures, qualifications to get registered, penal provisions, appeal mechanisms, tribunal with retired Supreme Court or high court judges… will be fun. All religions in the country will, by all means, unite and oppose such a bill (one positive from such a move).

I am in no way suggesting that we impose such a law. However, the fact that these Godmen are moving about scot-free is something that cannot be ignored. Analyze this –‘Cash to the tune of more than Rs. 11 crores found in a politician's or an industrialist's bedroom’….the outcome? Media uproar (with animated anchors seeking sms voting in all news channels), effigies burnt, maybe an opposition boycott of few parliament sessions etc). However, when over Rs 11 crores in cash along with over 85 kg of gold and other assets were found in Satya Sai Baba’s bedroom, none of these things happened.

Have we forgotten that recently, there was a large hue and cry (incidentally led by Ramdev Baba) on unaccounted black money being stashed away by politicians and industrialists abroad?

Another recent trend that seems to be on a rise is of Godmen making political statements without any commitment or responsibility. To be fair to politicians, at least the righteous ones, it is a tough job! It is easy to make comments from outside without any commitment but the complexities of being in politics, facing elections, being accountable for their statements, keeping cadres intact etc. is no mean task. As compared to them, these self declared custodians of goodness seem to get away with anything.

To cut the long story short, while the reference to bringing out a law is an exaggeration, it is imperative that the educated, level-headed masses need to unite against the unlawful activities of these Godmen, to reinstate faith from blind faith. Yes, if acted upon - we do have enough laws in place to punish these crooked self declared messiahs.

To have a feel or idea of the kind of enterprise these so called holy men run – please visit
http://www.rediff.com/business/slide-show/slide-show-1-lifting-the-veil-on-godmen-and-their-wealth/20110620.htm

Overdose of secularism!

What is the best thing in an air travel? My answer would be – you do get to read a lot. Typically, reading while travelling denotes catching up with one of the recent best sellers and if you missed to carry one, you end up reading all kinds of newspapers (yes – it’s free)..

What I am going to dwell upon has nothing to do with the above. In one of my recent travel, I encountered a similar problem of not having a best seller and ended up reading most of the newspapers. Thats when I came across the reference to a bill drafted by the National Advisory Council (This is a council set up by Prime Minister’s office to provide policy and legislative inputs to the Government with special focus on social policy and the rights of the disadvantaged groups, with Mrs. Sonia Gandhi as the Chairperson). More out of curiosity, I chose to have a go at the proposed legislation. With my limited understanding, I would say the whole thing seemed absurd to me:

The draft bill in question is ‘Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011.’ The bill can be accessed at http://nac.nic.in/pdf/pctvb_amended.pdf

The intent appears to be laudable, i.e., preventing communal violence in the country.

Before getting into an analysis or stating my views, I have to make a disclaimer and state that I belong to majority community (of course, not my choice) and I learned the meaning of the word ‘minority’ because the government chose to teach me.

Coming back to the draft bill, the proposed statute is quite complex and impractical. There are few areas which are outright disturbing and to cite a few from the definition sections;

3 (c) “communal and targeted violence” means and includes any act or series of acts, whether spontaneous or planned, resulting in injury or harm to the person and or property, knowingly directed against any person by virtue of his or her membership of any group, which destroys the secular fabric of the nation;

3 (e) “group” means a religious or linguistic minority, in any State in the Union of India, or Scheduled Castes and Scheduled Tribes within the meaning of clauses (24) and (25) of Article 366 of the Constitution of India;

3 (j) “victim” means any person belonging to a group as defined under this Act, who has suffered physical, mental, psychological or monetary harm or harm to his or her property as a result of the commission of any offence under this Act, and includes his or her relatives, legal guardian and legal heirs, wherever appropriate

The draft bill also has a definition for sexual assault under article 7 which state that ”A person is said to commit sexual assault if he or she commits any of the following acts against a person belonging to a group by virtue of that person’s membership of a group':

Not reproducing the entire definition here but would say without hesitation that the definition is sophomoric and quite hilarious, will be ripped apart by lawyers if this ever becomes a law. For the limited purpose of this article, it again refers to sexual assault against a person belonging to a Group. I always thought sexuality or sexual assault is a gender issue and not a majority/minority issue.

The Bill as a whole goes on a presumption that communal trouble is created only by members of the majority community. Whilst offences committed by majority community are punishable, offences committed by minority groups are not treated as offences.

In a nutshell, No member of the majority community can ever be a victim - How very nonsensical!

As is the case with every new law – this bill also envisages setting up a body known as National Authority for Communal Harmony, Justice and Reparation which will have seven members with a stipulation that at least four (including the chairman and vice-chairman) shall belong to a 'group' (read - the minority community). No prizes for guessing that this will be one of the high profile political appointments and a way for any incumbent government to keep those retired babus happy.

My humble questions or thoughts are:

• Do we need such legislation?
• Are we not over-doing the secularism card?
• What do they achieve by this legislation apart from political mileage and votes?
• Violence and terror has no caste, creed, religion or reasons. So, why should we attempt on a classification.
• Why do we have to invent new laws when we have enough laws if implemented well can be equally effective?
• Is this bill not taking away the ‘right to equality’ guaranteed to citizens under article 14 of the Constitution of India? The exception to this right inserted by politicians since independence can only be for the purpose of ‘advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribe’ and this bill is definitely not meant for that.

There is no paucity of laws in our country.. to the extent that no one has a clue as to how many laws we have; but what is lacking is the political will implement those. What you need is a serious and disciplined approach to mete out justice to all and not another law to add to the list.

Signature campaign against the bill can be accessed at at http://www.petitiononline.com/cvb_nac

Bye-Elections – who should pay!

The general elections in India are a mammoth exercise, with over 600 million voters, and about one million polling booths in the country.

Though the magnitude was not so much in the recently concluded assembly elections to the five states and few bye-elections, Election Commission of India has done a remarkable job of conducting a smooth election. Of course, even after their best efforts, they could not control the flow of black money entirely, which is understandable given the complexities in India.

Nonetheless, the point am attempting to touch upon is the 2 provisions of law concerning elections (cited below) which deserves a re-look,

The ability to become a minister without winning an election provided they get elected from a constituency within a period of 6 months

The legal background for this can be found in Article 164 of the Constitution of India which deals with ‘Other provisions as to Ministers’. Article 164 (4) is relevant, which reads as under:

“A minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a minister”.

Now, to cite an example from the recently concluded elections, Mamata Banerjee who has done the unthinkable of uprooting the Left from West Bengal after 34 long years, will become the Chief Minister. The repercussions are;

- There will be a vacancy in a lok sabha
- She has to get elected from an assembly constituency in the next 6 months.

We are looking at 2 bye-elections within a period of 6 months as in terms of section 151A of The Representation of the People Act, 1951 – a bye-election to fill up a casual vacancy shall be held within a period of six months from the date of the occurrence of the vacancy. The intent of having a bye-election is noble as a constituency should not go unrepresented for a long time.

However, one should think of the money and machinery to be deployed in conducting an election, both by the state and the candidate. According to an estimate from Centre for Media Studies, political parties and candidates spent a whopping Rs. 10,000 crore (including Rs.3,000 crore by the Election Commission) in the last lok sabha elections.

For a candidate, the current ceiling of spent is Rs.40 lakhs for a lok sabha seat and Rs 16 lakhs for an assembly seat and it would be naïve to think that these limits can be met. Apart from money, the logistics of conducting an election is also a nightmare.

Ability to contest from 2 constituencies at the same time

This prerogative given to candidates has its roots in Section 33 (7) of The Representation of the People Act, 1951 which states that ‘a person cannot contest elections from more than two constituencies for a lok sabha election or an assembly election’.

This provision also results in the same scenario of bye-elections if the candidate contesting from two constituencies wins both.

It is pertinent to note that the Committee of Electoral Reforms formed by the Ministry of Law and Justice, Government of India which submitted its report to the Cabinet in December 2010 has recommended that a person should not be allowed to contest from more than one constituency at a time.

Should we not have a law to ensure that any bye-election aimed at facilitating the needs of a political party should be at their expense and not on tax payer’s money and restrict state funding for instances like death of an incumbent member etc?

Jan Lokpal Bill- With great power comes great responsibility!

I would like to begin this post by saluting Anna Hazare – who brought the entire nation together with his selfless agitation against corruption and forced the government to succumb and commit introduction of the Jan Lok Pal Bill to tackle the menace of corruption. It is a commendable effort by a 76 year old and deserves the highest accolades!

Without much discussion or debate, we can safely conclude that most of the Indian politicians are corrupt. The recent spate of scams - CWG scam, 2G scam etc. only goes to support this profoundly disturbing truth. But let's admit - it's just not the politicians, its in all walks of life.

As a citizen, are we responsible in any way for the current state of this country?. How many of us can claim that we have never paid bribe or greased palms to get our work done?. The instance may be frivolous or one we may not even remember, it could be for a traffic violation, or for a confirmed ticket in a train, it could be for a school admission, or for getting a driving license. Each one of us has contributed in our own way to growing this irrepressible menace of corruption.

According to the Prevention of Corruption Act, 1988, paying bribe and accepting bribe, both are punishable offence by law.

Recently, I came across a paper by Mr. Kaushik Basu, Chief Economic Adviser, Ministry of Finance , Government of India, titled ‘Why, for a Class of Bribes, the Act of Giving a Bribe should be Treated as Legal’, where the author talks about the concept of ‘harassment bribe’. Harassment bribe according to him, is the bribes that people often have to give to get what they are legally entitled to, he says these should be made legal. Examples of harassment bribes quoted in the study are; suppose an income tax refund is held back from a taxpayer till he pays some cash to the officer; suppose government allots subsidized land to a person but when the person goes to get his/her paperwork done and receive documents for this land, he/she is asked to pay a hefty bribe. Read more at http://finmin.nic.in/WorkingPaper/Act_Giving_Bribe_Legal.pdf

The central message of this paper by Mr.Kaushik Basu is that we should declare the act of giving a bribe in all such cases as legitimate activity. In other words the giver of a harassment bribe should have full immunity from any punitive action by the state. Of course the author suggests strong punishment for the bribe taker.

Whether this concept of harassment bribe will receive acceptance in the eyes of law is something only time will tell, but for now, both acts of giving and taking bribe are punishable by law.

To conclude, as it stands today bribe in any form, giving or taking is bad at law. Given the state of affairs, I would be considered naïve if I say that you can live in this society without ever having to pay a bribe.

But once the Jan Lokpal Bill is a reality (hopefully it will be by end of this year) – every citizen of the country should also be obligated to do his due……………..

To borrow a famous quote from the Spiderman series - With great power comes great responsibility!

Independent Director - no more a time-pass activity!

Who is an independent director? To put simply, they are supposed to be custodians of the governance process and they should not be employeed or affiliated with the company in any other way. You do find various best attempt definitions in the companies act and listing agreement which focus on technicalities. And it is these technicalities which have become the basis for the appointment of the Independent Directors and also the reason for blatant exploitation of the law governing this role.

What was happening hitherto? With due respect to few Corporates who try to implement this in spirit, majority of the companies were filling this position with people known to them – Alas! They did technically qualify as independent director as many of them were truly independent of the Company to the extent that they may not even know what the business of the company was!

But the culprit here is not the companies but the Law itself, which fails to provide a clear elucidation on the roles and responsibilities of an Independent Director in a corporate set-up

When we talk about technicality, the current law governing the appointment of Independent Director in listed companies finds its place in clause 49 of the listing agreement and stipulates that an Independent director should not have any material pecuniary relationships or transactions with the company, its promoters, its directors, senior management or its holding company, subsidiaries and associates.

Yes, the lawmakers chose not to define ‘material pecuniary relationship’ – that is 3 words undefined and a decent lawyer can play havoc with such a lacunae.

In the Companies Bill 2009 it has been suggested that an independent director is allowed to have a ‘pecuniary relationship or transaction with the company, its holding, subsidiary or associate company, or its promoters, or directors amounting upto10 % of its gross turnover or total income during the two immediately preceding financial years (strange, by no stretch of imagination – a person who is interested in 10% of the turnover can be termed ‘independent’).

Interestingly, the Parliamentary Standing Committee, reviewing the Bill completely bans pecuniary relationship - material or otherwise with the company. This committee goes on to recommend that the appointment process should also be made independent of the company management by constituting a panel or a data bank to be maintained by the Ministry of Corporate Affairs, out of which companies may choose their requirement of Independent Directors. Now this whole panel concept is not just a folly – but a disaster in waiting.

In effect, there is again no consensus or clarity - which leads to further confusion.

But, all is not lost – recent spate of judicial activism in this area, where the role is being looked at more seriously offers some relief and hope.

To cite a couple of instances,

Case 1- Lawyer Peter Madhavan, a former independent director at scandal-hit air cargo firm Airocean, was sentenced to four months' jail for his part in making a misleading statement to the Singapore Exchange. He was also fined $120,000. This is believed to be the first time an independent director here has been sentenced to jail for breaking securities laws. Of course, he is on bail pending appeal.

Case-2- SEBI in an order in the Pyramid Saimira issue, restrained 3 directors from being independent directors or a member of audit committee of any listed company for a period of two years. The order stated that these independent directors overlooked numerous red flags in the trend in revenues, profits, receivables, advances, etc. which could not escape the attention of an independent director, who is also a member of the audit committee. The order went on to state that by failing to ask the right questions at the right point of time, these independent directors failed in their duty of care as an independent director. It is also pertinent to note that they were held guilty under the provisions of SEBI prohibition of fraudulent and unfair trade practices relating to securities market.

With this emerging trend of going beyond the letter of law to understand the actual intent - the current crop of independent directors who were taking their role lightly might find the going tough in the times to come.

It’s definitely a welcome change – which promises to ensure that the role of independent director will be taken more seriously and not as a mere time pass.

CSR or Tax?

can you force people to indulge in charitable activities?

the answer is yes.

at least, this is what is envisaged by way of a provision in the companies bill - which mandates that 'companies to earmark 2% of the average profit of the preceding three years for corporate social responsibility activities'.

that's lot of money - especially for big corporates.

oh yes, there is a recent dilution - which says 'companies to disclose to the shareholders what their CSR policy has been and if they have not been able to fulfill the target - why have they not done so!

the whole concept does'nt make any sense. you pay all kind of taxes (can't list down as the type and kind is huge) and there is no accountability on how these tax collections are used.

plus, how are we going to define CSR activity. who is going to certify these CSR earmarking. are we looking at a scenario where book entries are made to satisfy these requirements?

let's wait n watch!