Lokpal Not a Mere Slogan

Measures to ensure probity and integrity in public life have been at the centre stage of national consciousness, particularly during the tenure of UPA II.  Lokpal, though not a “cure for all ills”, was embraced by masses as a significant step to deal with corruption at the highest levels of Government and political machinery.  Anna Hazare’s fast at Ramlila ground in 2011 and again from December 10, 2013 has forced the Parliament to deliver the Act.  The first Lokpal bill was proposed and passed in the Fourth Lok Sabha in 1969.  However, it did not pass through the Rajya Sabha.  Subsequent Lokpal bills from 1971 to 2008 also met the same fate.  Rajya Sabha on December 17, 2013 and Lok Sabha on December 18, 2013 have passed the amended Lokpal bill.  Thus, the jinx has been broken after more than four decades.  The political strategy displayed by many political parties to sabotage the passage of the Lokpal Bill has finally met the dust.

Anna Hazare and many important political leaders recognize that the mere passage of Lokpal bill is only a first step for effectively addressing the deep rooted corruption.  It would require a very informed and committed civil society to ensure that the institution of Lokpal becomes functional.  After the assent by the President, the Government would need to declare the date of effectiveness of the Act.  Concurrently, the Government will have to frame and notify the rules for giving shape to the institution. The selection of the Chairman and the Members is a pre-requisite for finalizing the support staff and rules of business.  With the best of intentions, it may take about six months’ time to give a shape to a functioning Lokpal.  The manning of the staff positions is not an easy task as people with proven integrity would be brought initially on deputation from government followed by their absorption to ensure the autonomy and independence of the Lokpal Institution.

The Lokpal is to encompass not only the senior bureaucracy and political functionary, but would also cover up to Group A and B level officers, senior staff of public sector undertakings as well as government assisted non-governmental organizations.  Lokpal would be required to coordinate with highly decentralized administrative framework in the government.  It would be a logistical challenge for a centralized institution like the Lokpal to handle all cases from high profile scams to complaints of speed money in procurement of goods and delivery of services.  The most serious danger is the plethora of complaints which would have to be screened and then properly graded for further investigation.

The experience of the functioning of Lokayukta, Central Information Commission and the State level Information Commissions is a great lesson for the Lokpal institution.  There are a number of Lokayukta institutions who have not even published their annual reports.  There is a huge pendency of cases in terms of disposal of complaints.  In many Lokayukta offices, the institutions of new complaints have overshot the disposal and thus growing pendency.  Karnataka has one of the most effective functional Lokayukta.  The total number of pending cases upto 2012 are 15027, of which less than six months cases are 1632, six months to one year – 1360, one year to two years – 2707 and two years and above – 9328.  Other States also have similar periodicity and number of pending cases.  The Central Information Commission has a balance of 430425 appeals by the end of 2012, which makes a mockery of appeals and the citizens’ need for information has become a casualty.  It is reported that UP Information Commission has 35000 RTI applications pending with 250 applications/appeals filed everyday.

The Lokpal would need a huge organizational capacity, manpower and proven work culture.  It has to ensure that specialized intervention and focused action is not compromised with indiscriminate coverage of irregularities in the governmental organizations.  It must not become another parallel bureaucracy where the remedy would be worse than the disease itself.  It is important that the Government takes a pro-active stance in providing initial staff to the Lokpal institution.  Unless the rules of Lokpal Institution is carefully framed, proper staff recruited in a reasonable time frame and above all, effective screening of the complaints is enforced, the institution would fail to deliver the expectations and once again we will face the spectre of blame game  between the Government and the Lokpal for the failure.  Awakened civil society is the best disinfectant.

By Nripendra Misra, former Chairman of the Telecom Regulatory Authority of India

(This article was published in Dainik Bhaskar on 19th December, 2013)

The RTI Juggernaut

The unanimity of India’s political class to promulgate Right to Information (Amendment) Bill, 2013 to categorically exclude registered or recognised political party under the Representation of People Act (RPA), 1951, from being considered “public authority” under the Right to Information Act, 2005 has raised scepticism on the potential for depreciatory intent at guarding the clandestine activities of political parties. The move to counter the pronouncement of the Central Information Commission (CIC) to list political parties, which include AICC/INC, BJP, CPI(M), NCP and BSP, as public authorities under Section 2 (h) of the RTI, 2005 was perceived as a respite to scathing criticisms encountered by political parties.

Explaining the reasons for introducing the amendment bill, the statement in the bill points to the already existing provisions in the RPA, 1951 and Income-tax Act, 1961 as effective in dealing with the financial transparency of political parties. But implementation of these provisions has been a grave challenge to the Election Commission of India (ECI). Section 29C of the RPA, 1951, compulsorily directs all registered political parties to submit an annual report to the ECI on all contributions in excess of Rs 20,000, without which no political party is eligible for any tax relief provided to political parties under the RPA. The second important provision in the same context is Guidelines and Application Format for Registration of Political Parties, under Section 29A of the Representation of the People Act, 1951, issued by the ECI which, under Article VIII of Rule 3(i) and under Rule 3(xix), lays down clearly a mandatory requirement for all political parties to submit their audited annual financial statements to the ECI.  In response to RTI applications by the Public Interest Foundation (PIF), the ECI has informed that only 8% of 1196 registered political parties have submitted annual reports in 2010-11 regarding contributions above twenty thousand rupees  to the Election Commission. The Commission also revealed that that out of a total of 1196 registered political parties only 174 have actually submitted an annual audited financial statement for year 2010-11.  The efficiency of these provisions are explicitly questioned by the response of the ECI dated 20 November 2013 to an RTI application filed by Public Interest foundation on further actions undertaken by the ECI against registered political parties who failed to submit the annual audited account of the fund after issuing of letter by the ECI on 14 July 2011. The Commission responded that, “since nowhere under the Representation of the People Act, 1951 or the Conduct of Election Rules (ensuring compliance of which come under the purview of the Commission) the political parties are mandated to submit their annual audited accounts, Commission is not in a position to take any action against the parties who have not submitted their annual audited report”.

The reasoning of amendment bill asserts that political parties are neither established nor constituted under the Constitution or by any law made by Parliament. This point of objection does not gain credit against the provisions under fifty second amendment to the Constitution which amended Articles 101, 102, 190 and 191 of the Constitution regarding vacation of seats and disqualification from membership of Parliament and state legislatures and added a new Tenth Schedule to the Constitution setting out certain provisions as to disqualification on grounds of defection. The political parties were vested with exceptional power to remove those elected representatives elected by the people of India. Although not created by the Constitution, but wielding of this unique authority in itself suffices the need to regulate political parties by the common citizens who have been rightfully bestowed with the Constitution of India.

Reaffirming this thought is the recommendation of the Law Commission of India in its 170th that it is necessary “to introduce internal democracy, financial transparency and accountability in the working of the political parties”. The report of the National Commission to review the working of the Constitution headed by Mr. Justice MN Venkatachaliah, Former Chief Justice of India made significant remarks on the need for legislations to encompass political parties in transparency and accountability. The report states, “There is a need for a comprehensive legislation (may be named Political Parties (Regulation) Act) regulating the functioning of political parties in India”. The amendment bill tabled before the Rajya Sabha has clearly not considered any of the recommendations proposed by the Commissions formed by the governments in the past.

The visible outrage prompted the government to refer the amendment bill to the Standing Committee on 5 September 2013 granting hope for restoration of sanity in our polity. The defence of the political parties that deserve serious consideration is regarding dangers of unrestricted disclosure possibly impeding their internal administration and strategic deliberations. The discussions and decisions of a political party on participation in the electoral process along with their political schemes could be exempted by suitably amending Section 4 of the RTI Act, 2005. Nevertheless, there is an absolute necessity for transparency in the finances and accounts of the political parties. Absence of any law for regulating finances of political parties poses a great threat to functioning of democratic institutions in India which are deeply entwined with one another. An active disclosure of their financial details would unquestionably enable an objective audit from the informed citizenry.

By Nripendra Misra, Director, PIF & Annapoorna Karthika, Research Associate, PIF.

Miles to go for Lokpal

Rajya Sabha on December 17, 2013 and Lok Sabha on December 18, 2013 passed the amended Lokpal Bill.  Thus, the jinx has been broken after more than four decades.  The first Lokpal Bill was proposed and passed in the fourth Lok Sabha in 1969.  However, it did not get passage in Rajya Sabha.  Subsequent Lokpal bills from 1971 to 2008 also met the same fate. It is undisputed that Anna Hazare’s fast at Ramlila ground in 2011 and again from December 10, 2013  had forced the Parliament to deliver the Act.  The political strategy adopted by many political parties to sabotage the passage of the Lokpal Bill has finally met the dust.  Honesty and transparency has trounced over political inconsistency.

Measures to ensure probity and integrity in public life has been at the centre stage of national consciousness, particularly the scam and the tainted politicians only accentuated the widespread demand for an Ombudsman.  Lokpal though not a ‘cure for all ills” was embraced by masses as a significant step to deal with corruption at the highest levels of Government and political machinery.  It is recognized that the mere passage of Lokpal Bill is only first step for effectively addressing the deep rooted corruption.  The issue of black money, benamitransaction of property, seizure of illegally earned wealth and electoral reforms to curb the role of criminals deserve a very high priority in terms of legislation.  It would require a very informed and committed civil society to ensure that other measures also get adopted in the Parliament without further delay.  Perhaps the assignment would now be of new Parliament to be constituted in May, 2014.

The Lokpal Act has many follow-up steps in order to be functional. First, it requires the Presidential assent. The Government would need to declare the date of the effectiveness of the Act.  Concurrently, the Government has to frame and notify the rules as envisaged under the Act.  Only then the selection of the Chairman and the Members can be finalized.  The support staff and the rules of business will be taken up after the Chairman has been sworn-in.  With the best of intention, it may take about six months  to give a shape to functional Lokpal.  The manning of the staff position is not easy task as people with proven integrity to be recruited initially on the basis of deputation from Government followed by their absorption in case found fit to ensure the autonomy and independence of the Lokpal institution.  It calls for a huge organizational capacity, manpower and proven work culture.  Care has to be taken that the office of Lokpal does not become a parallel bureaucracy where the remedy would be worse than the disease itself.  It is important that the Government takes a pro-active stance in providing initial staff and budget to the office of Lokpal.

The jurisdiction of Lokpal is not restricted to senior bureaucracy and political functionary.  The powers of the Lokpal extend to Group A and B level officers, senior staff of public sector undertakings as well as Government assisted non-governmental organizations.  Apart from coordination and supervision with CBI and CVC, the responsibilities of Lokpal would require close coordination with highly decentralized administrative framework in the Government.  It is a logistical challenge for a centralized institution like the Lokpal to handle all cases from high profile scams to complaints of speed money in procurement of goods and delivery of services.  The most serious is the plethora of complaints which would have to be screened and then properly graded for further investigation.  The experience of the functioning of Lokayukta, Central Information Commission and the State level Information Commissions is a great lesson for the office of Lokpal.  There are a number of Lokayukta institutions who have not published their annual reports in spite of clear mandate.  There is a huge pendency of cases in terms of disposal of appeals and complaints.  In many Lokayukta offices, the institutions of new complaints have overshot the disposal and thus growing pendency.  Karnataka has one of the most effective functional Lokayukta.  The total number of pending cases upto 2012 in Karnataka are 15027, of which less than six months cases are 1632, six months to one year – 1360, one year to two years – 2707 and two years and above – 9328.  Other States also have similar periodicity and number of pending cases.  The Central Information Commission has a balance of 430425 appeals by the end of 2012, which makes a mockery of appeals and the citizens’ need for information has become a casualty.  It is reported that UP Information Commission has 35000 RTI applications pending with 250 applications/appeals filed everyday.

Unless the rules of Lokpal institution are carefully framed, proper staff recruited in a reasonable time frame and effective screening of the complaints is enforced, the institution would be unable to deliver the expectations and once again the spectre of blame game would cloud our objectivity.  The Lokpal institution need to ensure that specialized intervention and focused action is not compromised due to indiscriminate accumulation of complaints from various governmental organizations.  Awakened civil society which forced the birth of Lokpal is the best disinfectant to thwart the attempts of sabotage.

By Nripendra Misra, former Chairman of the Telecom Regulatory Authority of India & Director, Public Interest Foundation.

(This article was published in the New Indian Express on 30th December, 2013)

Bureaucracy: Thou Shall Not Speak

Bureaucracy, specifically All India Services, is in the news again.  It is being flogged for all the unjust and unfair reasons.  A young lady IAS officer of two years seniority was suspended in a northern state without proper inquiry only to be reinstated when baseless charges came in the public domain.  Fortunately, media took up the case and debated the implications of such an arbitrary action.  The actors in governance did not pause or were concerned to take stock of the impact it will have on the morale of junior civil servants.  The debate in media reached a crescendo when an important political leader stated that the State could do better without All India Services.  The latest FIR in coalgate scam involving the then Coal Secretary Mr. Parakh is alarming and painful because it raises the basic issue of advice and recommendatory role of civil servants.  Fortunately, the political master in this case has risen above the controversy to confirm the transparency, propriety and integrity of the decision. The letter sent to the then Cabinet Secretary in 2005 by Mr. Parakh highlights the political culture of trampling the system. The undercurrent message of this episode is being debated in many smaller groups in bureaucracy regarding the hazards of decision making.

The real story of retired civil servants facing investigation and charges has not been highlighted or explored by mainstream media.  Such retired officers facing charges are compelled to engage defence attorney who may charge Rs. 1-2 lakh per appearance.  The justice in most of these cases is rendered after a long trial period.  The unfortunate retired civil servant exhausts all his savings in protecting his image. There is lack of systemic mechanisms to screen the charges with reference to prevailing circumstances and the delivery expectations.

Of late, the officers are being subjected to a draconian provision, section 13(1)(d)(iii) of the Prevention of Corruption Act, 1988 for criminal misconduct.  It reads, “While holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest”.  Simply interpreted, it will invite prosecution if a decision results in pecuniary gain to any individual, corporate or any organization.  The interpretation of public interest is often ‘subjective’.  In today’s scenario, public servants take a decision for development and growth.  Private sector is invariably a partner in such endeavours.  It is difficult to imagine a decision which would not impact in terms of gain or loss to economic actors be it private, public or both.  There are any number of economic decisions which are made, reviewed, amended, depending on the circumstances and economic challenges.  Very recently, spectrum prices have been revised downward.  It could be argued that such a downward revision was too steep and helped private sector.  It is also possible to interpret that unutilized spectrum is a greater loss in terms of revenue to the country.  It also affects consumer satisfaction as the quality of service for want of adequate spectrum suffers.  This draconian provision can be applied with the benefit of hindsight without appreciating exigencies at the time of decision making.  In spite of repeated recommendations of various committees, this provision in the Prevention of Corruption Act is yet to be omitted.   Hon’ble Prime Minister promised to put in place a system and create an environment in which civil servants are encouraged to be decisive.  He further promised to protect honest and well meaning civil servants.  Unfortunately, there is a huge gap between the promise and the delivery.

The Second Administrative Reforms Commission has observed that “Governance is admittedly the weak link in our quest for prosperity and equity”.  The consistent end performance in achieving the growth targets points to poor governance.  While it may not be a feasible proposition to achieve major reforms in the civil service due to lack of consensus at the political level, a minimal agenda of reform in civil service should not be out of bounds.

It is not denied that there exists a ‘spoil’ system where transfers and postings have been described as an industry.  Political interference and pressure on civil servants has become cancerous.  More than 600 committees and commissions, according to Second Administrative Reforms Commission, have looked into different aspects of civil service reforms.  It is important to eliminate the ad-hoc and non-transparent transfers and postings which often reflect the whims and caprices of political functionaries.  There is a need to do away politicized transfers and assure officers a certain security of tenure and demand accountability.  There are States where the District Magistrates and Superintendents of Police have an average tenure of about six months.  The implications of such a decision are well-known; but little has been done to check the rot.  The transferred officer is demoralized.  Knowledge and expertise gained during short stint is wasted.    There is a huge financial burden both on the State as well as on the officer concerned.  It is common knowledge that the States with administrative instability find officers keeping two establishments – one for the work station and the other for the family.  Its negative impact on the efficiency is self-evident.  The conference of Chief Ministers has passed resolutions for the constitution of civil service boards to depoliticize the so called transfer/posting industry.  Unfortunately, these have remained on paper and no one has questioned the gross political interference in the transfer/posting and also in disciplinary matters.  A Civil Service Board properly constituted could be entrusted with the task of managing the personnel matters and advise the Chief Minister on administrative matters.  It is important that all pre-mature transfers should be accompanied with a detailed reasoned order so as to become a subject matter of scrutiny for legislature, media and civil society.  Normally, a civil servant should be given a fixed tenure of minimum three years to foster fair and objective decision along with accountability and performance.

In recent controversies, there have been references to different forms of communications including oral orders for compliance from superior to the junior. There should be a blanket ban on any communication which has not been formally recorded.  Even urgent communications not conveyed in writing should be referred for confirmation as early as possible. Once implemented, the above suggestions would positively contribute to the quality of delivery and implementation of policies and programmes and overall, ensure efficiency and transparency in governance.

By Nripendra Misra, former Chairman of the Telecom Regulatory Authority of India & Director, Public Interest Foundation

(This article was published in Dainik Jagran on 31st Oct, 2013 and The New Indian Express on 5th Nov, 2013)

Political apathy on Lokpal is shameful

Anti-corruption activist Anna Hazare has once again threatened to take to the streets for the cause of a Lokpal. In view of continued inaction with regard to promises made and the midnight resolution of Parliament, what grounds do the parliamentarians have to claim that their authority to work on their own accord is being undermined through the hanging sword of Damocles?

It was around July-August, 2011, that the agitation for the institution of Lokpal, along with the other demand for grievance redressal, seized the national conscience — with citizens coming out in full support of the India Against Corruption-led campaign. The common view was that governance deficit was glaring, political will lacking and the Government just not serious about tackling the menace of corruption manifested in the form of black money, muscle power in politics, corruption in public procurement, slow administration of justice and lack of transparency in the working of institutions entrusted with the task of investigating corruption.

Mr Hazare’s fast at Ramlila Maidan had struck a chord with the citizens and the bulging support on the streets was an expression of their frustration with the growing corruption and ineffective measures to curb it. Rattled by the public outcry, the Government and the political functionaries put up the defence that exerting pressure on the Government through unsolicited mechanisms, like protests and street shows, to get an important legislation like the Lokpal adopted, was blatant undermining of the authority of Parliament and the Constitution.

Yet no one can deny the fact that it was this public outcry which pushed both the Houses of Parliament to emerge from their extended phase of inaction and adopt the ‘Sense of the House’ resolution on three key issues — citizen’s charter, lower bureaucracy under Lokpal through an appropriate mechanism, and establishment of Lokayukta in the States.

Two years on, the urgency shown by the Government and the Members of Parliament has gradually sunk into a state of torpor. With the next general election round the corner, unceasing attempts at maligning the image of rival parties and their leaders has taken centre stage.

Important legislative Bills like Lokpal and the Lokayukta Bill, 2011, and the Right of Citizens for Time-Bound Delivery of Goods and Services and Redressal of their Grievance Bill, 2011, have again been put on the back-burner, perhaps because the parliamentarians do not see these issues as game-changers in the forthcoming poll.

The Lokpal and the Lokayukta Bill, 2011, was adopted in the Lok Sabha on December 27, 2011. It was taken up for discussion and endorsement by the Rajya Sabha on December 29, 2011. However, the Bill was suddenly referred to the Select Committee for consideration. The Committee’s report is awaiting further movement since last eight months. This clearly demonstrates the lack of interest amongst lawmakers to take action on the report. Whether the Bill will be converted to an Act remains a moot question.

The Select Committee’s recommendations and the Bill as was presented in the Rajya Sabha, have very few issues of discord. The Government has to decide on the extent of Lokpal’s supervision of Central Bureau of Investigation; nature of investigation/prosecution wing under Lokpal; functional division of responsibility between Central Vigilance Commission and Lokpal and the nature of quasi-judicial powers with Lokpal, particularly on disciplinary matters. These issues can be addressed amicably and without any significant delay as there is commonality of views.

A similar indifference was meted out to the central version of the Right of Citizens for Time-Bound Delivery of Goods and Services and Redressal of their Grievance Bill, 2011. This Bill was introduced in the Lok Sabha on December 20, 2011, and referred to a Parliamentary Committee in January 2012. It is almost a year since the representation by the Parliamentary Committee got over, but as per the information in the public domain this very important piece of legislation is languishing and awaiting adoption in Parliament.

The continuing governance crisis and political apathy towards issues of larger public concern needs to be immediately addressed. The unanimous decision of all political parties to exclude themselves from the ambit of Right to Information Act is a clear indication of the reality that the campaign to free the electoral process from the shackles of muscle and money power is not over yet.

Indian democracy can ill-afford to continue with such a degree of insensitivity towards public welfare matters. As long as crucial issues, many of which have a bearing on the nation’s socio-political well being, continue to be ignored, street protests will remain the last resort of an angry people.

(By Nripendra Misra, Director, Public Interest Foundation)

(This article was published in The Pioneer on 9th September, 2013 and Dainik Bhaskar on 11th October, 2013)

A Guarantee without Accountability Right to Public Services

As if involuntarily acting on account of pressures from civil society and various other counters, the Right of Citizens for Time Bound Delivery of Goods and Services Bill, 2011 was introduced in the Lok Sabha on December 20, 2011.  It was referred to the Parliamentary Committee in January, 2012.The Committee sent its report in August, 2012.  About a year’s time has elapsed since the representation by the Parliamentary Committee was presented, and still the final version of the Bill, in light of the recommendations of the Committee, has not been tabled in Parliament.  This very important piece of legislation like all other critical bills may not get enacted in the 15th Lok Sabha.  Perhaps, it would require another push from the civil society to impart that sense of urgency at the right quarters.

The States have been pro-active in enacting and adopting the Act, facilitating for justiciable rights- based claim of public services within a specified time bound delivery.  Till now, 17 States have enacted this Act and are in various stages of implementation.   Madhya Pradesh was the pioneer which enacted this law in the year 2010; the year 2011 saw the Act getting adopted by 10 more states (namely Bihar, Chhattisgarh, Himachal Pradesh, Jammu and Kashmir, Jharkhand, Punjab, Rajasthan, Uttar Pradesh, Uttarakhand and Delhi); in 2012 four states of Karnataka, Orissa, Kerala and Assam also enacted the Act; whereas Gujarat and Goa have enacted the law only very recently in April and May 2013 respectively and thus have not even notified the first phase of government services covered under the Act yet. And the remaining 12 states which are still to enact this legislation are Andhra Pradesh, Haryana, Maharashtra, Tamil Nadu, West Bengal, and the seven north-eastern states of Sikkim, Meghalaya, Nagaland, Arunachal Pradesh, Mizoram and Manipur.

In order to find out the ground realities of the implementation of the Act in various states, Public Interest Foundation (PIF), a NGO, filed an application under the Right to Information Act, 2005 to all 28 states, asking for basic details of whether this act had been adopted in that particular state, and in case the answer was in affirmative then the rate at which the complaints were being received and processed.  An assessment based on notification of specific services for delivery was undertaken to evaluate if the enactment meant any appreciable improvement in the delivery of services and thus bringing about relief at the cutting edge level.

Most of the replies received to the RTI query shared only the details of whether this Act had been enacted by the State Government or not, and the number of services notified under the Act till date. The number of services covered range from 153 in Rajasthan to 13 in Uttar Pradesh.  Certification on health, birth, death, SC/ST status; issuance of BPL/APL ration cards; state-aided pension provision of various kind; power department and driving licences are some of the other services which have popularly been covered by most states for time-bound delivery. Other important basic public services yet to be covered uniformly by other states are services like labour -rights guarantees and coverage of Urban Development Department for property related settlement of various kinds like property transfer certificate, no objection certificate for building construction etc.

However a careful reading of the replies together shows up distinctly that notification of essential services is incomplete in most of the States. Majority of the States have left out the subjects of land revenue, land record, police administration, rend control, power supply and administration in decentralized local bodies.  The farmers face maximum harassment while seeking justice from the revenue courts.  There are ways of manipulating information to suppress records of frequent adjournment and delayed justice.  The same is the story of police stations in terms of registration of FIRs, speedy police intervention in cases of atrocities towards Scheduled Castes and Scheduled Tribes.  The complaint of wrong billing and erratic power supply is endemic.

Another important feature and conclusion is that the system has not attained critical mass.  The citizens are not aware of their rights and there is no hand-holding procedure to cut the red tape.  Some of the states like Madhya Pradesh in denying information on monitoring practices went on to the extent of stating that under RTI replies it is not possible to furnish such information which is not already present with them in an collated form as a part of their usual record-keeping exercise. But a careful reading of the Rules accompanying this Act clearly states the requirement as well as provides the standardized format for record keeping of all complaints registered, time prescribed as well as taken to handle the case, and the final status of the complaint to be maintained on a regular basis separately by designated officer, first appellate authority as well as the second appellate authority. Even the pending Central legislation Right of Citizens for Time Bound Delivery of Goods and Services and Redressal of their Grievance Bill, 2011, underlining this need for strict monitoring , in its Chapter X on ‘Reporting of Grievance Redressal by Public Authority’ of the Bill under section 46 (1) clearly states that, ‘Every public authority shall ensure that every Grievance Redressal Officer keeps a record of complaints made to it or appeal therein and the decisions on such complaints and appeals.’

Out of 28 states only four states shared monitoring records on number of cases received and disposed under the Act since conception. Moreover the monitoring data reveals only a very sketchy picture with no basis for conclusive analysis. Delhi and Karnataka both despite having provisions for punishing of erring public officials in case of delays beyond sanctioned time in handling of complaints have 3.6 lakhs delayed cases with no penalty imposed on defaulting officer in case of Delhi; and around 7.4 lakh cases pending beyond the sanctioned time with merely 06 officers brought to book in case of Karnataka.

Monitoring exercise of the implementation of this Act at ground level forms an important aspect of this Act, without which there would be no built-in accountability, and thus no way of knowing whether this highly acclaimed public welfare oriented Act is actually bringing about that change in the lives of the common man, which was the most important goal and promise of this very Act.

The Central legislation if passed without any further delay can provide that reference framework for the states to emulate underlining the importance for incorporation of in-built mechanism for monitoring of the rights guaranteed under the Act. Moreover, this record regarding the smooth functioning and the delivery of the promises made under the Act should be open to public scrutiny by being placed in the public domain. Infact the truth of the matter is that this very important enactment has yet to become part of district administration in the country, which can be achieved only when e-governance is adopted both at the level of request for services as well as its final delivery. For without this in-built mechanism for monitoring and accountability, there is a pertinent danger of this Act doing nothing more than a lip service to welcome change that it had envisioned and claimed to bring to the lives of the common citizenry.

By Nripendra Misra, Director, PIF and Tannu Singh, Research Associate, PIF

(This article was published in The New Indian Express on 26th August, 2013)

Public Interest Foundation’s reactions to the recent pronouncements of the Courts and the order of the CIC

SC order on freebies in manifestos of political parties

Significantly, the Hon’ble Supreme Court in the verdict of 5 July 2013 directing the Election Commission of India (ECI) to frame guidelines for regulating the contents of election manifesto has observed that the manifestoes even if announced before the notification of election dates, should be brought within the code of conduct as an exception.  The order of the SC explicitly finds strength in Article 324 of the Constitution which entrusts the responsibility for conducting elections in a free and fair manner to the ECI.  It is a landmark decision to ensure transparency, accountability and level playing field to all the political parties. Unlike in India, all promises of financial nature during elections are subjected to serious scrutiny by the media, think tanks and the televised debate in other developing countries.  Political parties in India only compete with each other to upscale the ‘free’ products. If honestly implemented, the political parties would not resort to the divisive policies and freebies to attract the “vote bank”. The most serious challenge before the Election Commission is its capacity to enforce various rules and regulations and also model code of conduct. The efficacy of powers granted to the ECI is seriously compromised in the absence of a specific provision for imposing penalty on defaulting political parties.  The Apex Court judgement of 10 May 2002 states that the present act and rules do not empower the ECI to de-register a political party. In the absence of any regulation on parties, the nation risks an atmosphere of ruthless politics with little or no public accountability.  Therefore, the Law Ministry without further delay should at least initiate legal reforms based on ECI proposal on issues which are non-controversial.

SC order on those convicted MPs, MLAs and MLCs will be disqualified unless an appeal is pending

The path-breaking judgement of the Hon’ble Supreme Court on 10 July 2013, which strikes down Section 8(4) of the Representation of People Act, 1951 restores the intent of Section 8(3) of RPA, 1951, which disqualifies a person convicted of any offence and sentenced to imprisonment for not less than two years from contesting elections and the disqualification is for a period of six years.  However, the Bench has recognized the powers of the appellate courts to stay the convictions under Section 389(1) of the Criminal Procedure Code.  The historic role of liberating of Indian legislative bodies from the criminals is a commendable contribution of the Hon’ble Supreme Court.

The striking down of the sub-section 8(4) of the RPA, 1951 is being widely debated on all forms of communication networks.  Even so, a straightforward analysis has been caught up in the interpretations leaning toward the subject of rising criminals in politics, which is exclusive to the declaration of sub-section 8(4) of the RPA, 1951 as ultra-vires the Constitution.  The judgment has only affirmed that the Parliament has no power to enact sub-section (4) of Section 8 of the RPA, 1951 vis-a-vis Article 102(i)(e) and 191(i)(e) of the Constitution.

Crucial to the judgment of the SC regarding Section 8(4) of RPA, 1951 is that it solely relates to disqualification after conviction.  The stage of conviction in majority of the cases is not reached because of the heavy pendency at the court level and deliberate efforts of the accused to delay the judicial process.  It is because of this reason that Justice Verma Committee Report on Amendments to Criminal Law, 2013 had proposed amendment to Section 8(1)(a) of the RPA, 1951 with the inclusion of offences punishable under the Indian Penal Code (IPC), 1860.  This proposal needs to be urgently adopted for defining serious and heinous offences where the term of punishment amounts to an imprisonment of five years or more resulting in disqualification of candidates on charges being framed by the court.  This would require amendments to Sections 8(1), 8(2) and 8(3) of the RPA, 1951. The establishment of Special Fast Track Courts for time bound disposal of cases of the candidates charged with serious and heinous offences is a necessity that complements toward efficacious implementation of the judgement as it could act as a deterrent to those with cases of criminal offences pending against them in the court from contesting elections in order to avoid a speedy and time-bound adjudication of the case.  These Fast Track Courts should be enabled to take up the cases of elected representatives to minimize political uncertainty in Parliament/State Assemblies.

SC order that those in jail cannot contest

Although this verdict of the Hon’ble Supreme Court is in absolute sync with upholding of the Constitutional morality of India’s democratic order, the judgement requires a review of the Court in the present fractious political climate marred by mounting criminalization. It is inferred that in the reading of the Representation of People Act, 1951, the Court could have inadvertently missed the potential of the words of the judgement to be blatantly abused and misused by competing political parties during elections. For instance, the arrest of cartoonist Aseem Trivedi in 2012 on serious charges of sedition for his anti-corruption cartoon is a reflection on the umbrage the nation felt at the abuse of law, especially by the political class. Extreme caution in the use of law and its language is demanded at a volatile situation of present parliamentary order. The judgement should be urgently reviewed to examine the need for any possible amendments for clarity on the subject.

Allahabad HC order on caste-based rallies

The judgement of the Allahabad is considered widely as a profanation of the Fundamental Rights guaranteed by the Constitution to the citizens of India with respect to the right to assemble peacefully without arms under Article 19(1)(b) of the Constitution. This Fundamental Right can be restricted by law only in the interest of the sovereignty and integrity of the country. It is impossible to feign that a caste-based rally is not essentially the quintessential stroke in the wheel of social justice. It is pivotal to define a caste-based rally. Could a rally held by the nation to mark its indignation at an incident like that of Khairlanji massacre be called a caste-based rally? Those caste-based political rallies intended at demanding votes in an election are dealt under electoral offence and they don’t demand absolute ban on the rallies.

CIC order to bring political parties under the ambit of RTI

The Central Information Commission  on 2 June 2013 have given a decision that the listed political parties, i.e. AICC/INC, BJP, CPIM, CPI, NCP and BSP are public authorities under Section 2(h) of the Right to Information Act, 2005. Thus, requiring pro-active disclosure put in the public domain.  It also grants right to the citizens to seek information from the listed political parties.  This order mainly seeks disclosure of financial nature, donations, funding of election which, in some manner, is already required by the ECI.  It is expected that the parties would not be required under RTI to provide rationale for selection of candidates, internal management of the party etc.  Perhaps, there is a case for clarification regarding the nature of information to be made available under RTI.  This would soften the all-round opposition to the pro-active disclosure and the political parties ganging up to challenge the decision may be dissuaded.

By Nripendra Misra, Director, Public Interest Foundation and Annapoorna Karthika, Research Associate, PIF

(This article was published in Dainik Bhaskar on 1st August, 2013)

Election Commission empowered to enforce clean politics

The Hon’ble Supreme Court in its order dated July 5, 2013 has directed the Election Commission of India (ECI) to frame guidelines for regulating the contents of election manifesto.  Further, the Supreme Court has observed that the manifestoes even if announced before the notification of election dates, should be brought within the code of conduct as an exception.  It is evident that the order of the Hon’ble Supreme Court to ECI is under Article 324 of the Constitution which entrusts the responsibility for conducting elections in a free and fair manner to ECI.  It is a landmark decision to ensure transparency, accountability and level playing field to all the political parties.  If honestly implemented, the political parties would not resort to the divisive policies and freebies to attract the “vote bank”.  Promises on freebies by political parties have no  linkage with the financial health of the State, likely tax burden and impact on the state revenue.  In the USA, all promises of financial nature during elections are subjected to serious scrutiny by the media, think tanks and the candidates are often called upon during the televised debate to balance the implications of receipt and expenditure.  Political parties in India do not have such obligations, and they only compete with each other to upscale the ‘free’ products.  While working in a State Government, I had once advised against promise of higher cane price on grounds of poor sugar recovery and very heavy cane arrears.  The truth was that the poor farmers did not get  their cane dues for 3-4 years, because the sugar mills were unviable under the cane price dispensation.  On the other hand, the farmers were coerced to make repayment of agricultural credit.  The point being made is that the value of freebies is not really free gift voucher, but short-term gain to a political party.

Recently, Central Information Commission have given a decision that the listed political parties, i.e. AICC/INC, BJP, CPIM, CPI, NCP and BSP are public authorities under Section 2(h) of the Right to Information Act, 2005.  This order mainly seeks to ensure a pro-active disclosure of financial nature, donations, funding of election which, in some manner,  is already required by ECI.  It is expected that the parties would not be required under RTI to provide rationale for selection of candidates, internal management of the party etc.  Perhaps, there is a case for clarification regarding the nature of information to be made available under RTI.  This would soften the all-round opposition to the  pro-active disclosure and the political parties ganging up to challenge the decision may be dissuaded.

The above two developments, i.e. order of the Hon’ble Supreme Court and the decision of the Central Information Commission, are very much in line with the various commissions constituted by the Government which have highlighted the need for regulating financial transparency and inner democracy within the political party system.  Our Constitution, except for the Schedule dealing with the disqualification of a person as a Member of either House of Parliament or the Legislative Assembly, does not make a specific mention of political parties.  The very bedrock of Indian parliamentary system was left to the evolution of healthy convention and respect for rights of the association of body of individuals to constitute a political party registered by the ECI.  Hon’ble Supreme Court in the judgment of July 5, 2013 has stated that the Parliament should frame a new law to regulate political parties in the country.  This was earlier recommended by the Law Commission of India and also by Justice Venkatachalliah Commission on the Review of the Constitution.  Former Chief Justice of India, MN Venkatachalliah  has guided the Centre for Standards in Public Life in the preparation of a draft bill on political parties.  Therefore, the Government does not have to invent a new wheel and it could initiate a dialogue amongst political parties to arrive at  least intrusive law relating to the affairs of political parties.

The most serious challenge before the Election Commission is its capacity to enforce various rules and regulations and also model code of conduct.  Few examples would highlight the point being made.  Section 29C of the Representation of People Act, 1951,  requires all registered political parties to submit an annual report to the ECI on all contributions in excess of twenty thousand rupees for being eligible for any tax relief.  In response to an RTI application, ECI has conveyed that only 8% of 1196 registered political parties have submitted annual reports in 2010-11 regarding contributions above twenty thousand rupees  to the Election Commission.    ECI  under section 29A of the RPA 1951 requires political parties to submit their audited annual financial statements within six months of the end of each financial year.  ECI has made a shocking revelation that out of a total of 1196 registered political parties only 174 have actually submitted an annual audited financial statement for year 2010-11. Further follow-up action is not known.   As the power to withdraw the eligibility of tax exemption is with the Finance Ministry, ECI has sent the list of the parties who are in non-compliance to that Ministry.

The efficacy of powers granted to the ECI is seriously compromised in the absence of a specific provision for imposing penalty on defaulting political parties.  A culture of blatant disobedience among registered political parties has taken roots.  Does the ECI have powers to de-register a political party?  The judgment of the Apex Court dated 10.05.2002 is that the present act and rules do not empower the ECI to de-register a political party.   At least 500  registered  political parties do not have authentic addresses and have never participated in  any  State or national level election.  The ECI proposal sent in 1998 to Government of India to empower ECI with de-registration is still under consideration.

In the absence of any regulation on parties, the nation risks an atmosphere of ruthless politics with little or no public accountability.  The citizen today is aghast to notice that main national political parties are even trivializing the acts of terrorism threatening the national security.  It is a pity that well-established security and investigative agencies are being debated  with half baked information ultimately causing great damage to the integrity of the institutions.  The well-established conventions have been given a go-bye and selective leak is no longer perceived as a serious breach of indiscipline.

In conclusion, three action points emerge for immediate attention.    Firstly, the ECI should frame guidelines under the model code of conduct for election manifesto of political parties; secondly, the Law Ministry without further delay should at least initiate legal reforms based on ECI proposal on issues which are non-controversial.  The power to ECI for de-registration of political parties is one such example. Thirdly, the Government should act upon the order of Hon’ble Supreme Court and also the Law Commission recommendations for major electoral reforms and regulating of the political parties.  The minimum that citizens can be promised is an authentic public information regarding defaults by political parties on binding disclosures.  Is it too much to ask in this great democracy?

(This article has been published in The New Indian Express on 15th July, 2013 and Dainik Jagran on 11th July, 2013)

Letter to the Ethics Committees of Parliament on the issue of conflict of interest by MPs

The Public Interest Foundation sent letters on 6 June 2013 to then Chairmen of Committee on Ethics of both Houses of Parliament, Mr. Sis Ram Ola and Prof. Ram Gopal Yadav, requesting their thoughtful attention toward compelling grounds to dissuade Members of Parliament from employing members of their immediate family and relatives in their personal staff.

The Foundation’s research initiatives on systemic reforms in the country to obviate the incidence of governance deficit has observed the ethical quagmire in India’s parliamentary democracy with print media reporting on Members of Parliament (MPs) employing immediate family members and relatives as personal assistants. Indubitably and evidently, the question of ethics and propriety in public office has emerged as an upshot of the report stating that 104 members of Lok Sabha and 42 members from Rajya Sabha have appointed at least 191 relatives in their personal staff.

Although a law does not exist in India preventing these appointments by MPs, but there cannot be any reasonable justification bereft of explicit conflict of interest on the part of MPs in generating income to one’s own family members at taxpayers’ expense. This should be considered as exploitation violative of rights, privileges and probity of common citizens.

An elected representative of the people is expected to maintain the highest moral and ethical standards in office. Entertaining matters raising conflict of interest by an MP is reflective of the profanation of the elected representative to the oath or affirmation made when entering the House of Parliament. The public contempt at the deterioration of the Parliament has reached the volatile juncture where immediate actions have become necessary to ameliorate and instil ethics and probity to the office of an MP.

In this regard, an understanding of House of Commons Rule in Canada would prove a benignant force in formulating any law in India to curb actions of conflict of interest by MPs. The Rule in Canada clearly states that MPs in the House of Commons are not allowed to “hire or enter into a contract for consulting and professional services with members of immediate family (spouses and their children and their spouses and children)”. The Conflict of Interest Code for Members in the Canadian House of Commons under section (8) of Rules of Conduct states that “Members shall not act in any way to further his or her private interests or those of a member of the Member’s family, or to improperly further another person’s entity or private interests”.

The good authority of Ethics Committees of both Houses are trusted in taking suo motu cognizance of this critical issue toward initiating measures to stringently rein in appointing of family members and relatives by MPs in their personal staff. Any law directive of this intention should potentially define “family members” and “relatives” along with disciplinary actions against MPs contravening any such law. The Foundation solicited their kind attention toward the exigency to curb any misconduct in the office of an MP expending public exchequer.

Letter drafted by Nripendra Misra, Director, PIF and Annapoorna Karthika, Research Associate, PIF

The jewel under wraps: Impact assessment of the 2nd ARC reports

What is the relevance of Government appointed Commissions and Committees? The perception is that it is a strategy for keeping the long pending governance issues under folds.  The Government justification is that it is a sincere effort to garner specific expertise recommendation for chartering a feasible way forward on a significant challenge at hand.  Assuming that the Government claim is genuine, then it should be mandatory and specifically mentioned in the terms of reference a concrete time line both for receiving the recommendation and also for public record on substantial actions taken by the Legislature and executive towards implementation of the relevant accepted recommendations of the Commission/Committee.

There is plethora of recommendations received from various Commissions/Committees which for want of any effective action become irrelevant with the passage of time.  The specific case under the scanner here is that of the Second Administrative Reforms Commission (2nd ARC) which was set up in August, 2005 as a Commission of Inquiry for preparing a detailed blueprint to revamp the public administrative system under the chairmanship of Shri M. Veerappa Moily.  The Commission was set up with a clear mandate to suggest measures to achieve a pro-active, responsive, accountable, sustainable and efficient administration for the country at all levels of the Government.  The first Report of this Commission on the Right to Information was submitted in 2006.  14 more Reports have been submitted since, the last being the 15th Report submitted in the year 2009.

Starting with a bang on Right to Information (RTI) with laudable promises of addressing the major deficit in “good governance’, it is close to eight years since its commencement and exactly four years since the last Report submitted in April, 2009, still there is no ‘Action Taken Report’ in public domain as regards the major recommendations of the 2nd ARC.  As per the reply to an application under RTI moved by Public Interest Foundation (PIF), the Department of Administrative Reforms and Public Grievances, has disclosed that the total expenditure incurred in the working of the Commission till January 2013 amounts to approximately Rs. 11.90 crore.

Subjects dealt by the 2nd ARC are key agendas of contemporary relevance like ethics in governance, steps to ensure effective administration at the state level, district administration, local self government/Panchayati Raj institutions, participative and transparent delivery of public services, citizen-centric administration, promoting e-governance, crisis management, public order and police reforms, judicial accountability, ombudsman/Lokpal etc.  It is no body’s case that these important issues of governance should be addressed through a single reformative step forward.  Given the federal character and also accountability to the Legislature, the initiatives of course correction would emanate from multiple points leading to upgradation of the present system of governance which is the widely recognized as incapable of meeting the nation’s expectations.  The present polity is facing multiple challenges and ineffective redressal is causing the threat of multiple organ failure.  Sincere adoption of relevant recommendations of the 2nd ARC would have certainly guided in the positive direction leading to resolution of the various important deadlocks that our nation is grappling with on a day to day basis, it only points to the sorry state of affairs that the recommendations of the 2nd ARC are still wanting effective actions in terms of ground level execution.

Thanks to Right of Information Act, which certainly draws its strength from 2nd ARC itself, efforts to probe deeper by PIF on the fate of relatively more important reports on the 2nd ARC from the perspective of advocacy towards good governance, was rendered futile.  The specific reports explored for outcomes were the 4th Report on Ethics in Governance and the 5th Report on Public Order.

The careful reading of the 4Th Report on the Ethics in Governance shows the pivotal impact that could have been made through the serious consideration and adoption of its recommendations. Commission gave wide-ranging recommendations on electoral reforms which included partial state funding for elections, amendment to section 8 of RPA, 1951 to disqualify persons facing charges of grave and heinous offences, collegiums of bipartisan nature for the appointment of Chief Election Commissioner etc.  As per the information, the recommendations relating to electoral reforms have been forwarded to the Ministry of Law & Justice.  Also, recommendations on integrity of public servants, seizure of illegally acquired assets and measures to curb black money are now with the respective Ministries.  The Commission had also highlighted the delay in trials under the Prevention of Corruption Act.  It had recommended a time limit for various stages of trial and the Apex Court was to lay down guidelines to preclude unwarranted adjournments and avoidable delays.  The vital recommendations to cleanse the system and introduce integrity and efficiency has been put on a snail pace action.

On the first RTI application filed in December 2012, to know the status of adoption of all recommendations under the Fourth Report on 2nd ARC, the Department of Administrative Reforms & Public Grievances (DoARPG) informed that out of a total of 134 recommendations 79 recommendations were accepted by the Government and 21 were referred to other fora, remaining 34 were not accepted by the Government. Out of the 79 accepted recommendations actions on 53 have been completed and 26 accepted recommendations are pending for implementation by the Government. Not completely satisfied with the nature of the answer which seemed to be concealing more than revealing by refusing to divulge any details on subject matters towards which recommendations got accepted or rejected, PIF again filed another RTI application. This time the RTI application inquired to know the status of acceptance of specific recommendations on issues of grave importance like institution of Lokpal and Lokayukta, Political Funding, Anti-Defection Law, Disqualification of the MPs under Section 8 of the RPA, Coalition & Ethics, Fate of MPLADS & MLALADS, Ethical Framework for Judiciary, Speedy trial under Prevention of Corruption Act, Confiscation of Illegally acquired property through corrupt means. But the answer again was evasive in terms of the fact that rather than giving concrete actions on the status of the action taken on these specific agendas, PIF was redirected to various Government Departments. This only shows that there is no concrete movement on the central issues as per various Reports submitted on the 2nd ARC.

Similar fate was met out to PIF’s inquiry on the Fifth Report on 2nd ARC which deals in the area of Public Order. This particular Report deals with recommendations on the much-debated grey areas of present day Governance like Police Reforms and Repealing of the Armed Forces (Special Powers) Act, 1958.  Department of Administrative Reforms & Public Grievances (DoARPG) simply informed PIF that this Fifth Report which was submitted in 2007, is still under the consideration of the Government.

Given the fact that the issues covered under the purview of the 2nd ARC are critical to extricate from the morass of governance paralysis that India faces today, it is indefensible that the recommendations are being subjected to routine procedures and formalities and no attempt has been made to fast track the execution.  The term of the present Parliament would be over by May, 2014 and perhaps there may be yet another proposal to constitute a 3rd Commission for administrative reforms to placate various position seekers.  It is necessary that the Action Taken Report in a time bound manner is placed in the public domain so that the accountability increases and the propensity towards using Committees/Commissions as a procrastination strategy is effectively checked.

By Nripendra Misra, Director, PIF & Tannu Singh, Research Associate, PIF

(This article was published in the Dainik Jagran on 16th June, 2013)