"When they arrested my neighbour I did not protest. When they arrested the men and women in the opposite house I did not protest. And when they finally came for me, there was nobody left to protest."

In Prem Shankar Shuklas’ case[1] Justice V.R. Krishna Iyer  held that  “Handcuffing is prima facie inhuman and, therefore, unreasonable, is over-harsh and at the first flush, arbitrary. Absent fair procedure and objective monitoring, to inflict 'irons' is to resort to zoological strategies repugnant to Art. 21. Thus, we must critically examine the justification offered by the State for this mode of restraint. Surely, the competing claims of securing the prisoner from fleeing and protecting his personality from barbarity has to be harmonized. To prevent the escape of an under-trial is in public interest, reasonable, just and cannot, by itself, be castigated But to bind a man hand-and- foot, fetter his limbs with hoops of steel, shuffle him along in the streets and stand him for hours in the courts is to torture him, defile his dignity, vulgarize society and foul the soul of our constitutional culture. Where then do we draw the humane line and how far do the rules err in print and praxis? Insurance against escape does not compulsorily require hand cuffing. There are other measures whereby an escort can keep safe custody of a detenu without the indignity and cruelty implicit in handcuffs or other iron contraptions. Indeed, binding together either the hands or the feet or both has not merely a preventive impact, but also a punitive hurtfulness. Manacles are mayhem on the human person and inflict humiliation on the bearer. The Encyclopedia Britannica, Vol. II (1973 Edn.) at p. 53 states

"handcuffs and fetters are instruments for securing the hands or feet of prisoners under arrest, or as a means of punishment."

The three components of 'irons' forced on the human person must be distinctly understood. Firstly, to handcuff is to hoop harshly. Further, to handcuff is to punish humiliatingly and to vulgarize the viewers also. Iron straps are insult and pain writ large , animalizing victim and keeper. Since there are other ways of ensuring security, it can be laid down as a rule that handcuffs or other fetters shall not be forced on the person of an under-trial prisoner ordinarily. The latest police instructions produced before us hearteningly reflect this view. We lay down as necessarily implicit in Arts. 14 and 19 that when there is no compulsive need to fetter a person's limbs, it is sadistic, capricious despotic and demoralizing to humble a man by manacling him. Such arbitrary conduct surely slaps Art. 14 on the face. The criminal freedom of movement which even a detainee is entitled to under Art. 19 cannot be cut down cruelly by application of handcuffs or other hoops. It will be unreasonable so to do unless the State is able to make out that no other practical way of forbidding escape is available, the prisoner being so dangerous and desperate and the circumstance so hostile to safe-keeping. Once we make it a constitutional mandate that no prisoner shall be handcuffed or fettered routinely or merely for the convenience of the custodian or escort-and we declare that to be the law-the distinction between classes of prisoners becomes constitutionally obsolete. Apart from the fact that economic and social importance cannot be the basis for classifying prisoners for purposes of handcuffs or otherwise, how can we assume that a rich criminal or under- trial is any different from a poor or pariah convict or under-trial in the matter of security risk ? An affluent in custody may be as dangerous or desperate as an indigent, if not more. He may be more prone to be rescued than an ordinary person. We hold that it is arbitrary and irrational to classify, prisoners for purposes of handcuffs, into 'B' class and ordinary class. No one shall be fettered in any form based on superior class differentia, as the law treats them equally. It is brutalizing to handcuff a person in public and so is unreasonable to do so. Of course, the police escort will find it comfortable to fetter their charges and be at ease but that is not a relevant consideration.”

This grim scenario burns into our judicial consciousness the moral emerging from the case being that if to-day freedom of one forlorn person falls to the police somewhere, tomorrow the freedom of many may fall elsewhere with none to whimper unless the court process invigilates in time and polices the police before it is too late. This futuristic thought, triggered off by a telegram from one Shukla, prisoner lodged in the Tihar Jail has prompted the present 'habeas' proceedings. The brief message he sent runs thus:

Hand-cuffing has been one of the prime field where the Supreme Court has ventured to issue guidelines to check police humiliation. Issue thereof was considered  in Prem Shankar Shuklas’ case[2]. To hand-cuff is to hoop harshly and to punish humiliatingly. The minimal freedom of movement, which even a detainee is entitled  to under  Article 19,  cannot be  cut  down by application of handcuffs,,  held the  Supreme Court.  As there are other ways  for ensuring security, handcuffs  must be the last refuge,  No prisoner shall be handcuffed or fettered routinely or merely for the convenience of the custodian or escort. Functional compulsions of security must reach that dismal degree whereon alternative will work except manacles. There must be material sufficiently stringent, to satisfy a reasonable mind that there is clear and present danger of escape of the prisoner who is being transported by breaking out of the police control and further that by adding  to the escort party or other strategy, he cannot be  kept under control. The onus of proof in this regard is on him who puts the person under irons. The belief that the prisoner is likely to break  out of custody  or play the vanishing trick must be based on antecedents  which must be recorded and proneness to violence must be authentic. Vague surmises or general averments that the under trial is a crook or desperado, rowdy or maniac cannot suffice. Even orders of superiors  are no valid justification as constitutional rights cannot be kept in suspense by superior orders, unless there is material in that regard. Even  where in extreme circumstances, handcuff have to be put on the prisoner, the escorting  authority must record contemporaneously the reasons for doing so. Not only that,  as that can be a mechanical process mindlessly made, the escorting officer, whenever he handcuffs a prisoner produced in Court,  must show the reasons  so recorded to the Presiding Judge  and get his approval. The judicial officer before whom  the prisoner is produced has to be interrogate the prisoner, as a rule, whether he has been subjected to handcuffs or other ‘irons’  treatment  and, if he has been, the official concerned shall be asked to explain  the action forthwith. Otherwise, there is no control over possible arbitrariness in applying handcuffs and fetters. And once the Court directs that handcuffs shall be off, no escorting authority can overrule judicial direction.

The Supreme Court further laid down that, merely because a person is charged with grave or serious offences the inference of escape proneness or desperate character does not follow and therefore, on that premise alone he cannot be handcuffed.  Another aspect of the matter is that all prisoners should not be placed on the same footing unless there is a rational classification  based upon health, age, academic or occupational needs or like legitimate ground and not irrelevant factors like wealth, political importance, social status and other criteria which are a hang over of the hierarchical social structure hostile to the constitutional ethos. It is arbitrary and irrational to classify prisoners, for the purpose of handcuffs, into ‘better’ class and ‘ordinary’ class. No one shall be fettered in any form based on superior class differential, as the law treats them equally.

If a police officer is vested with the power to restrain by person by handcuffing him or otherwise there is a simultaneous restraint by law on the Police officer as to the exercise of that power, an arbitrary exercise of that power infringes the fundamental rights of the person in custody and a malicious use of that power can bring Section 220 of the Indian Penal Code[3] into play. Sections 46 and 49 of the Code of Criminal Procedure[4] defines the parameters of the power envisaged by the Code in the matter of arrest and Section 49 of the Code, in particular, foreshadows the central principle controlling the power to impose restraint on the person of prisoner while in continued custody. Consistent with the fundamental rights of such person the restraint can be imposed, if at all, to a degree no greater than is necessary for preventing his escape.  To prevent his escape is the object of imposing the restraint, and that object defines at once the bounds of that power. In short, the authority responsible for the prisoners’ custody, should consider the case of each prisoner individually and decide whether the prisoner is a person who having regard to his circumstances, general conduct, behaviour and character will attempt to escape or disturb the peace by becoming violent. That is the basic criterion, and all the provisions relating to the imposition of restraint must be guided by it. In the ultimate analysis it is that guiding principle which must determine in each individual case whether a restraint should be imposed and to what degree.

The social status of a person, his education and habit of life associated  with a superior mode of living seem to be intended to protect his dignity of person. But that dignity is a dignity which belongs to all, rich and poor, of high social status and low, and  illiterate. It is  abhorrent to envisage a prisoner being handcuffed merely because it is assumed that he does not belong to “a better class”,  that he does not possess the basic dignity pertaining to every individual. Whether handcuffs or other restraint should be imposed on a prisoner is primarily a matter for the decision  of the authority responsible for his custody and not of any other.  It is a judgment to be exercised with reference to each individual case. The matter is one whether  the circumstances may change from one mement  to another, and inevitably in some cases it may fall to the decision of the escorting authority midway  to decide on imposing a restraint on the prisoner. Any prior decision of external authority cannot be reasonably imposed on the exercise of the power. However, one sector of supervisory jurisdiction  could appropriately lie with the Court trying the accused, and it would be desirable for the custodial  authority to inform that Court of the circumstances in which, and  the justification for imposing a restraint  on the body of the accused. It should be for the Court concerned to work out the modalities  of the procedure requisite for the purpose of enforcing such control.

These are the guidelines issued by the Supreme Court in its judgment in Prem Shankar Shukla V.Delhi Administration. The Supreme Court had earlier considered this question in Sunil Batras’ case as well [5]. Again the Supreme Court has in Aeltemsh Rein’s Case[6] directed the Central Government to frame rules or guidelines as regards the circumstances in which handcuffing of the accused should be resorted to in conformity with the judgment  of the  Court in Prem Shankar Shukla’s case  and to circulate them amongst all the State Governments of the Union Territories.

Has this direction of the court implemented or guidelines followed?

Has it resolved the problem?

A big No!

Adv. K.C. Suresh, B.A., LL.M (Crimes), PGDHR (Human Rights)

Law and the State has come to recognize the rights of men.  Though these rights differ from country to country, some of the rights are accepted by nations all over the world regardless of their ideology or political, economic  or social conditions[1]. Termed as ‘basic’,  ‘absolute’, ‘inalienable’, ‘inherent’, or ‘involable’, these rights called as “Human Rights”, are meant for the protection of the individual, for the fulfillment of his needs and realization of his personality, and are derived from inherent  dignity and worth of the human person[2]. 

Though the Constitution of India exhaustively covers the internationally  accepted norms on human rights, the question is how far the people are enjoying these  rights in actual practice? Studies conducted  by independent  researchers,[3] non-governmental  organizations like Amnesty International[4] and many judicial decisions[5] reveal that state lawlessness and terror  are the great threats to the basic rights of the people. These  materials further  reveal that the most drastic attack  on these rights come from the  State  controlled organized forces, the Police. Police Atrocity emerges  to be the prime threat to human rights. World over, there has been an alarming increase in crimes against human dignity committed by police, especially in custody. Scientific  methods of interrogation lies  confined to police text books. Torture, is looked upon as the only method to extract a confession. In India, the Bhagalpur blinding still remain as a blemish on the collective psyche of the nation.  In that episode, over thirty suspects were blinded by pouring acid into their eyes. For quite long, media had been flooded with the infamous Raja case(1977) from Kerala, of the emergency days to the recent fake encounters  in Punjab pointing the frequent happenings of police atrocities. More recently, in a ghastly incident in Rajasthan, [6] a suspect’s penis was chopped off during the course of an interrogation. These are few of the incidents. Infact, physical torture by police consist “of beating, of  long grilling by days of interrogations under blinding lights, of locking the prisoner in a cell   without  food or water for long periods or placing him  in a cell where mosquitoes breed on him. It  may also consist of gouging the eyes, thereby creating complete blindness, causing injuries on vagina and inserting  iron rod in the anus.”[7]

Police atrocity is always a subject of discussion in the legal circle. No body can stop this cruel game of police. But what else a judiciary can do in a democracy. It can make some laws to the country and that has become the law of the land when ultimately pronounced by th state and central judicial heads. Since there is no specific statute on police atrocity, much judge-made law has crept on judicial concern. Infact, the Judiciary is much concerned over the recurrence of police atrocities and have expressed deep anxiety over the strategies to prevent police atrocity.

The very words of Justice V.R.Krishna Iyer in Raghubir Singh’s Case[8] enlightens one over the judicial anxiety on the problem, which reads:

 “We  are disturbed by the diabolical recurrence of police torture resulting in a terrible scare in the minds of common citizens that their lives and liberty are under a new peril when the guardians of the law gore human rights to death. The vulnerability of human rights assumes a traumatic, torture some poignancy (when) the violent violation is  perpetrated by the police arm of the State whose function is to protect the citizen and not to commit gruesome offences against them as has happened in this case. Police lock-up if reports in newspapers have a streak of credence, are becoming more and more awesome cells. This development is disastrous to our human rights awareness and humanist constitutional order.

          The State, at the highest administrative and political levels, we hope will organize special strategies to prevent and punish brutality by police methodology. Otherwise, the credibility of the rule of law in our Republic vis-à-vis the people of the country will deteriorate.”

Similar concern was expressed by the Supreme Court in Kishore Singh Ravider Dev’s Case[9] in the following words:

“Even so, no police life-style which relies more on fists than on wits, on torture more than on culture can control crime because means boomerang on ends and re-fuel the vice which it seeks to extinguish. Secondly, the State must re-educate the constabulary out of their sadistic arts and inculcate a respect for the human person- a process which must begin more by example than by precept if the lower rungs are really to emulate. Thirdly, if any of these policemen are found to have misconducted themselves, no sense of police solidarity or in-service comity should induce the authorities to hide the crime. Condign action, quickly taken is surer guarantee of community credence than bruiting about that all is well with the police, the critics are always in the wrong. Nothing is more cowardly and unconscionable than a person in police custody being beaten up and nothing inflicts a deeper wound on our constitutional culture than a State official running berserk regardless of human rights. We believe the basic pathology which makes police cruelty possible will  received  Government’s serious  attention. Who will police the police?  What psychic stress and social deprivation of the constabulary’s life- style need corrective healing?  When will ‘wits, not fists’   become a police kit?  When will the roots of ‘third degree;  be plucked out and the fresh shoots of humanist respect put out? We make these observations in the humane hope that Art.21 with its profound concern for life and limb, will  become dysfunctional unless the agencies of the law in the police and prison establishments have sympathy for the humanist creed of that article.”

One thing is to be appreciated. The judicial gates on police atrocity have opened up only since the emergency days. Prior to that, no such judge-made law is seen to have been endeavoured on the topic. It is only since 1977, newer vistas of law on the topic has crept in through judicial decisions. In fact, the decisions then on, have gone to carve out the present law on the topic, pushing the statute law backwards.

ON ARREST PROVISIONS

Few decisions have also come out from the judiciary, supplementing the legislative provisions discussed in the previous chapter. So far as the mandates in Article 22 of the Constitution and Sections 56, 57 and 167 of Code of Criminal Procedure are concerned the Supreme Court had as early as in 1962 asserted these provisions to be mandatory.[10] The Supreme Court in Bhagalpur blinded prisoner’s case[11] had strongly asserted the state and its police authorities to see that constitutional and legal requirement to produce an arrested person before a Judicial Magistrate within 24 hours of the arrest are scrupulously observed. It was reiterated by the Supreme Court that this provision inhibiting detention without remand is a very healthy provision which enables the Magistrates to  keep check over the police investigation and it is necessary that the Magistrates should try to enforce this requirement and where it is found to be disobeyed, come down heavily up on the police. The Court further expressed unhappiness at the lack of concern shown by the Judicial Magistrates in that particular case, in not enquiring from the blinded prisoners, when they were first produced before the Judicial Magistrates and thereafter from time to time for the purpose of  remand, as to how they had received injuries in the eyes. A direction  was also issued  to the High Court to look into these matters closely and ensure that such remissness on the part of the judicial officers does not occur in future.  However no specific relief was granted   in the said case no any check or safeguard to enforce the law put out by the Court. It is quite disgusting to note that no safety checks have been put forth by the Court, except for a condemnation, even in the recent Ramesh Kumar Singh’s case.[12]

However, in a case where   a Member of Legislative  Assembly was arrested and detained in custody by police beyond 24 hours  without producing  him before the Magistrate, though a remand order was obtained, the  Supreme Court held that there is gross violation  of his rights under Articles 21 and 22 of the Constitution and further awarded compensation of Rs.50,000/- to him; upholding court’s jurisdiction  to grant compensation in the following words:

“When  a person comes to us with the complaint that he has been arrested and imprisoned with mischievous or malicious intent and that his constitutional and legal rights were invaded the mischief or malice and the invasion may not be washed away or washed away by his being set free. In appropriate   cases we have the jurisdiction to compensate the victim by awarding suitable  monetary compensation.[13]

To desist the police officers from resisting to informal arrests, so as to overcome the hurdle  of Article 22(2), the  Courts have  given a wider connotation to the term, ‘arrest’[14]. Thus, for purposes of Article 22(2) “arrest”  is the restraint on a man’s  personal liberty by the power or colour of lawful authority. What  label the police affixes to their act of restraint is irrelevant and the record of  the time of arrest is not an index to the actual time of arrest. The  arrest commences with the restraint placed on the liberty of the accused and not with the time of  “arrest” recorded  by the arresting officers, declared the court. This is a welcome interpretation that would be a catalyst in desisting  police atrocity in custody.  Still has the problem come to an end?  No!  That requires something more to be done.

In Joginder Kumar’s Case[15] the  Apex Court has made it obligatory upon the police to intimate the nearest relative of an arrested person of the fact of his arrest. And this has been made a fundamental right. It was asserted in the said decision that no arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person; and that it would be prudent for a Police Officer in the interest of protection of the constitutional rights of a citizen and perhaps in hs own interest that no arrest should be made without a reasonable satisfacton reached after some investigation as to the genuiness and bonafides of a complaint and a reasonable belief both as to the  person’s complicity and even so as to the need to effect arrest. It was directed by the Court that except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave station without permission would do.

In this case, the Court held that right of arrestee to have someone informed about his arrest and the right to consult privately with lawyer are fundamental rights inherent in Articles  21 and 22 of the Constitution, which require to be recognized and scrupulously protected. For effective enforcement of these fundamental rights, the court  also issued the following three requirements.

(1) that an arrested person being held in custody is entitled, if he so requests to have one friend relative or other person who is known to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where he is being detained.

(2) that the police officer shall inform the arrested person when he brought to the police station of this right; and

(3) that an entry shall be required to be made in the Diary as to who was informed of the arrest.

The Court directed that these protections from power be enforced strictly. The Magistrates were directed to satisfy themselves that these requirements have been complied with when the arrested persons are produced  before them. These requirements were directed to be followed in all cases of arrest till legal provisions are made in this behalf and these requirements were held to be in addition to  the rights of arrested persons found in the various Police Manuals. The Directors General of Police of all the States in India were directed to issue necessary instructions requiring due observance of these requirements. In addition, departmental instructions were also  directed  to be issued to effect that a police officer making an arrest should also record in the case diary, the reasons for making the arrest. These requirements of the Court are yet to be implemented in all the States. If implemented, it would be an ideal check.

ON REMAND PROVISIONS

One of the classic decisions rendered by Kerala High Court on Section 27 of the Indian  Evidence Act is quite noteworthy, wherein  the Court declined to remand the accused to police custody for getting confession for purpose  of recovery u/s 27 of the Act[16].  In that case, accused had denied knowledge  or information regarding existence or whereabouts  of the material objects sought to be recovered from them. The Court, therefore declined remand  holding that it is unlikely  that the accused would tell the police about the whereabouts of these articles  except   by adopting means of interrogation which are not approved  by law; and that the courts cannot allow themselves to be used for the purpose of enabling the investigator to use means of interrogation not approved by law.

ON INTERROGATIVE PROVISIONS

In Nandini Satpathys’ case[17]  the need of the State to fight against police atrocities was affirmed, by the Supreme Court. It was held therein that the  prohibitive sweep of Article 20(3)  extends even to police interrogation. This, no doubt, is a welcome interpretation of the law which would prevent fuel from being added to the firm of police atrocity.  In this particular decision the court has also ventured to bring out what :compelled testimony” actually means. There are expression was taken to be  read, as evidence procured  not merely by physical threats or violence but by psychic torture, atmospheric pressure, environmental coercion, tiring  interrogative police, overbearing and intimidatory methods and the like. It was held that if there is any mode of pressure, subtle or crude, mental or psysical, direct or indirect but sufficiently substantial, applied by the policeman  for obtaining information from an accused strongly suggestive of guilt, it becomes “compelled  testimony” violative of Article 20(3). In the same case, the Court also  upheld  that if an accused  person expresses the wish to have his lawyer by his side when his examination  is going on, this facility  shall not be denied, without  being  exposed to the serious reproof that involuntary self-incrimination secured in secrecy and by coercing the will, was the object. This has been approved of by the court to remove the implicit menace of a police station, with liberty to intersect where intimidatory tactics are adopted. Further, in the said case, the Court had also noted with regret, the action of a police officer at a higher level insisting on a woman to appear at the police station in flagrant contravention of the wholesome proviso to Section 160(1) of the Code of Criminal Procedure. Such deviance must be visited with prompt punishments since policemen may not be a law unto themselves expecting others to obey the law,  directed the Court.

Adv. K.C. Suresh, B.A., LL.M (Crimes), PGDHR (Human Rights)

I would request fellow members to pass on a relinquishment deed in word formt.

Thanks,

Rajeev

THE DRAFT BROADCASTING SERVICES REGULATION BILL, 2007

Mahendra Subhash Khairnar*

“Whereas airwaves are public property and it is felt necessary to regulate the use of such airwaves in national and public interest, particularly with a view to ensuring proper dissemination of content and in the widest possible manner” are the opening words of the preamble of the present bill, which sought to achieve the objects mentioned there under.

However, it would not suffice to say that ‘quoad principi placuit legis habet vigorem’ i.e. “the sovereign’s will has the force of law” but that law can be tested on the touchstone of reasonableness.[1]

The need for public information and consultation is one aspect of the issue that has received little attention to date. Yet the primary objective of media regulation in a democracy is to preserve and protect citizens' fundamental rights to information and freedom of expression. So citizens are in fact the most important stakeholders in media policy and regulation.

Here are some of the chunk points which need to be understood to have better look toward the Bill.

1.                    Broadcast Bill and Content Code is to go beyond a power struggle between the Information and broadcasting Ministry and the Media industry. Or Regulatory Bill would shackle the industry.

2.                    Need of such Regulatory bill in the democratic state.

3.                    vesting the command and control of the electroni9c media with the Govt.

These issues will lead us to analyze the present Bill in better and informed manner.

So far as dealing with First issue following points need to be considered:

In its landmark 1995 judgment relating to the broadcast media[2] the Supreme Court of India made it very clear that the rationale for media regulation is the public interest. According to the apex court, "The airwaves or frequencies are a public property. Their use has to be controlled and regulated by a public authority in the interests of the public and to prevent the invasion of their rights."

“The Content Code[3],” Mr. Singh emphasized “already exists. It is merely being fleshed out. I feel there isn’t much fear (amongst the private players) than the fact this sector has not been regulated. In any case the code would be finalized by the Regulator in consultation with media representatives.[4]”

While discussing Second issue regarding need of such Regulatory Bill in democratic state following matter need to be highlighted-

The need has been felt to regulate the content going into public domain to ensure conformity with acceptable contemporary community standards and to protect the vulnerable sections from harmful and undesirable content on TV. The Broadcasting Services Regulation Bill has been redrafted after considering the comments of stakeholders.

Speaking at the FICCI Seminar on “Regulation in the Entertainment Sector[5]’, Ms. Asha Swarup, Secretary, Ministry of Information & Broadcasting said: “The revised Bill on the Proposed Broadcast Services Regulation which was announced to the media and put on the Ministry’s website on July 20 incorporates the comments and views of the industry received during the past several years.”

 It was incorrect, she said, to say that India was the only country that was proposing to have a content code for the broadcast sector, as such codes in different forms were in existence in other countries[6].

The Self Regulation Guidelines (Guidelines) formulated and posted on the Ministry website set out principles, guidelines and ethical practices, which shall guide the Broadcasting Service Provider (BSP) in offering their programming services in India so as to conform to the Certification Rules prescribed under the Cable Television Networks (regulations) Act 1995, irrespective of the medium/platform used for broadcasting of the programme[7]. 

India’s advertising fraternity is concerned about the overriding powers that the draft Broadcasting Services a Regulation Bill, 2007 has envisaged for regulating content of promotional campaigns despite the Advertising Standard Council of India (ASCI) having its own model code of conduct.

“We are happy that most of the recommendations made by the ASCI have been incorporated in the Bill[8]”

Third issue regarding Govt. control here tried to justify.

Whereas Government has issued guidelines from time to time for regulating the Broadcasting Services and it is felt necessary to give a statutory effect to these guidelines and provide for a comprehensive legislation[9].

The Bill need to be read along with Chapter 5 and Section 51particularly sections 45-47. These provisions provides for the legislative, executive and adjudicatory functions of the Authorities.[10]

For example, the document is peppered with references to the central government and its powers. In addition, with both the proposed Broadcasting Regulatory Authority of India (BRAI) and its regional offices to be headed by government officers, and various Licensing Authorities and Authorised Officers also to be drawn from the bureaucracy, the proposed regulatory infrastructure appears indistinguishable from the government. Further, several provisions convey the impression that BRAI is meant to merely implement policy determined by the government.[11]

If the tussle between the Ministry and the broadcast industry over the Bill and Code is to really benefit the public, the breather provided by the delay in tabling the legislation in Parliament must be used to generate an authentic, informed public debate on the many complex issues involved in media regulation, ranging from professional norms and ethical practice to ownership and accountability.[12]

CONCLUSION

Due to the emergence of the welfare state and due to active effort on its part to bring out a just social order. State now undertakes to provide social security and social welfare for the common man, regulates the industrial relations. However the private initiative in many matters cannot be excluded. But private enterprises even in the US is subject to heavy state regulation and control. In India also, where mixed economy adopted,  the private enterprises are bound to be subject to extensive state regulation and control. While the extent of such control and regulation depends upon the need of the economy and the nature of the social and political challenges.

The present Bill which sought to done away with redundant laws and regulations and to establish a new socio-eco friendly regulatory bodies with certain elasticity and control, therefore this is a good piece of legislative work. However as said by Robert McChesney, a media scholar , “the act should be made of public concern rather than that of business”. The breather provided by the delay in tabling the legislation in the parliament must be used to generate an authentic, informed public debate.

The analysis of the Bill shows a strong will and mechanism, sought for, by the Central govt. to control broadcasting network and the industry through rational, legal provision which will definitely be interpreted in just, fair and reasonable manner by the apex court whenever the question came before it. The Bill also recognized and protect the ‘private communication[13]’ which never ever recognized by existing law.

How to bring transparency in Administration

through the use of RTI?

MAHENDRA SUBHASH KHAIRNAR*

The State is seen as the legal creation of an individual will. People undertake to obey a Govt. which they themselves have chosen. Freedom and Equality of men are the basis of their happiness. The State and the State Laws thus remain subject to the general will which creates the State for the better protection of Freedom and Equality.

                                                                                  -Rousseau

The major chunk of this paper is on :

1. Why transparency is needed,

2. Who will bring transparency in Administration?

3. How transparency will come in the Administration,

        -what is Right and RTI

        -Constitution and RTI provisions,

4. Administrative Authority should know-,

5. Significance and Conclusion.

                        As it is well-known in the democracy that, the State is accountable to people because people because people surrendered their right to the institution of state. Thus the State is such an institution which comes into existence on the consent of the people .So State and its wings should act in such a way that to satisfy people and show the transparency in each transaction, in each sphere of Govt./State and made themselves accountable to people. Ultimately administration and legal system and State is for the people1.

*LL.M.1^st, Dept. of Law, University of Pune, Pune

1. Locke imagined an actual social contract between individuals and the state at the setting up of civil society in which citizens, in order to secure the protection of their right, handed over certain powers to the Govt in return for the guarantee of certain rights to live, liberties and estates.

                                                                    -Locke, The Second Treaties Of Govt.,(1698)

               Certain recent developments might suggests that a significant movement towards more open Govt. has been taking place over the last few years and is gradually gaining strength brought about acceptance of the principle of access rights in some areas including local governments.

RIGHTS-

Citizens can never be fully assured of the safety of their liberties, until they are removed out of the reach of Govt by identifying and enshrining them in a Bill of Rights2. It is thought that Govt. cannot expected to keep a satisfactory check on itself, only some source of power independent of Govt. can do so.

               If it is claimed that ‘x’ has a right proper, or claim to ‘A’, this means that persons generally or specific p