Asian Human Rights Commission Statement
Orissa is one of the states in India that has failed to assimilate the spirit of the 73rd amendment of the Indian constitution, which provides a constitutional framework to the Panchayat Raj. The state has also failed to appreciate the Right to Information Act, 2005. The state’s bureaucracy behaves as if it is in war with the right to information activists, for which they use the provisions of antiquated legislations like the Orissa Grama Panchayat Act, 1964 and Orissa Grama Panchayat Election Rules 1965. (Picture: A ghost pond in Khariar, Nawapara district, Orissa; courtesy of Ms Jin Ju, Researcher AHRC)
In an incident reported by Mr Ajit Panda of Vikash working in Nuapada district of Orissa, the District Collector, Mr Janaki Ballabha Mishra, has issued a show-cause notice to an RTI activist demanding why the activist’s name should not be included in a list, which the collector is preparing, concerning “persons encouraging litigation in the Grama”. Ridiculous it may sound, but this exactly is the content of the notice dated 1 October 2011 served upon the Dalit RTI activist, Mr Khirasindhu Sagria.
Khirasindhu is a Dalit youth from Kusmal village of Khariar block in Nuapada district. In 2008, Khirasindhu exposed corruption in the construction of ponds under the Mahatma Gandhi National Rural Employment Guarantee scheme in his village. The ponds that are never constructed or works undertaken just to show on the records and to swindle money, are referred to as “ghost ponds” in the district. Khirasindhu’s RTI applications revealed that the officials in charge of the work had swindled more than Rs. 200,000 without constructing the ponds. Khirasindhu had organised the people to write about the corruption to the higher authorities.
After considerable effort, the villagers were able to force the government to take action against some of the officers involved in corruption. Two Block Development Officers, one Additional Block Development Officer and the Assistant Engineer were suspended. The Junior Engineer and the Gram Sathi (friend of the village) were disengaged. Khirasindhu and the people did not stop there. They also wanted the fulfilment of their legal entitlement, the ‘real’ construction of the ponds and demanded that the stolen money recovered from the suspended officers.
In retaliation, the Gram Sathi and her family members filed three separate complaints against Khirasindhu at the local police, including one for attempted sexual molestation. Though Khirasindhu had filed complaints of corruption against the officers including the Gram Sathi, before complaints were filed against Khirasindhu, the police had refused to register the complaints or investigate them. This did not however deter Khirasindhu.
During 2009-10, Khirasindhu filed RTI applications seeking information concerning various other works undertaken in the district. Whenever Khirasindhu received information upon his RTI applications, Khirasindhu, as a matter or principle, shared the information obtained with the villagers. Recently, Khirasindhu obtained the records of a tank renovation work undertaken at Khudpej Panchayat in Khariar block. The expenditure shown in the muster roll was Rs. 80,000. He placed the muster roll before the villagers and the villagers found that half of the signatures in the roll were fabricated. The information revealed that the officials involved in the tank renovation work had swindled Rs. 40,000.
The Palli Sabha meeting in Khirasindhu’s village held in August, discussed about the non-payment of wages in the Backward Regions Grant Fund Programme work and the non-functioning of Anganwadi pre-school. The villagers wanted to record this matter in the minutes of the Palli Sabha meeting but the Executive Officer objected. Upon Khirasindhu’s insistence, the discussion was finally recorded in the minutes.
Khirasindhu, through his example is not only fighting for his own rights as a citizen but is also helping his villagers to fight for their rights. It is natural that in the process Khirasindhu antagonises corrupt officers and elected representatives who swindle taxpayers’ money. Yet, for the District Collector, this amount to ‘encouraging litigation’ and the antiquated law, the Orissa Gram Panchayat Act, 1964 empowers the Collector to enlist Khirasindhu as a person in a list the law allows the Collector to prepare, as if Khirasindhu is a convicted criminal. Having his name in the ‘list’ disqualifies Khirasindhu from contesting in the Gram Panchayat elections as per Rule 89 of the Orissa Panchayat Election Rules 1965 and Section 25 (1) (m) of the Orissa Grama Panchayat Act 1964.
The retarded nature of this Act is further visible from Section 25 (1) (e), which also prohibits a person suffering from tuberculosis from being elected or nominated as a Sarpanch or as any other member of the Grama Panchayat. The Orissa state government admits, vide its World TB Day statement dated 23 March 2011, that tuberculosis, in many cases is a decease that affects the poor and the marginalised. The statement acknowledges, “… poverty is closely associated with TB”. That be the case, a poor person due to the poverty she/he is facing – and the tuberculosis infection that the person might acquire due to the poor, unhygienic and malnourished living condition, all of which is the responsibility of the government to address – is prevented from raising the issue of government’s apathy at the Grama Sabha by actively participating in it.
On a similar vein, the right to information is a right, so is it a right to seek remedies for the violations of rights. Often litigation is the only legitimate means to seek remedy for a right violated. Yet, that could be treated as ‘encouraging litigation’ and hence could be held against a person from participating in local body elections in Orissa.
Indeed, the Supreme Court of India has held on several occasions that it is not a fundamental right to contest an election. Yet it needs to be seen what interpretation would be provided for this ridiculous ‘qualifier clause’ in retarded legislations like the Orissa Panchayat Election Rules 1965, and the Orissa Grama Panchayat Act 1964. Challenging the constitutional vires of these provisions could prevent corrupt bureaucrats from exploiting the provisions of antiquated laws against the fundamental rights of the people to seek information and to fight for remedies.