Round Table Conference on Decriminalization of Politics

A Round Table Conference was organized today, April 5, 2013, by Public Interest Foundation on the subject of Decriminalization of Politics.  Public Interest Foundation has already filed a PIL before the Hon’ble Supreme Court along with Common Cause, Transparency International and Gandhian Satyagraha Brigade seeking direction by the judiciary to the Government of India to enact legislation so as to debar those charged with serious offence from contesting elections.  The PIL also seeks the establishment of fast track court to expedite criminal cases of elected members. Further, it requests the Hon’ble Supreme Court to declare section 8(4) of the Representation of the People Act, 1951, which provides a safe haven to elected representatives even after conviction in case an appeal has been preferred, as ultra vires.

The keynote addresses were delivered by Justice M N Venkatachaliah, former Chief Justice of India and Mr. Ashwani Kumar, Minister of Law & Justice.  Mr. D P Tripathi and Mr. Dinesh Trivedi, Members of Parliament also made significant remarks highlighting the exigency to formulate concrete consensus on the subject.  Chief Election Commissioner (CEC) Shri V S Sampath and the former CEC Dr. S Y Quraishi made strong case for decriminalizing Indian politics and empowering Election Commission toward conducting free and fair elections.

Justice Venkatachaliah in his keynote address emphasized the urgency in placing the parliamentary process on sound tenets of democracy.  He particularly emphasized the need for intra-party democracy in the political parties in nominating candidates with criminal antecedents.  Acknowledging major reforms being canvassed for judiciary, Justice Venkatachaliah urged that reforms with respect to decriminalization of politics should not be delayed awaiting an holistic reforms in other institutions of democracy. He was of the view that a person charged with heinous offences and in which cognizance has been taken notice of by the court should not qualify to contest elections.  He particularly disowned the idea benefitting to the election candidates till the conviction has been finally determined at level of the appellate court.  He strongly affirmed that the plentitude of the powers of the Election Commission recognized by the Supreme Court should be adequately utilized, especially to curb the role of black money in elections. Concluding his observations, Justice asserted that the disenchantment of the common man with the democratic institutions of the country could be dramatically shifted solely by educating and rigorously registering the young voters of the country encouraging them to place faith in the country’s democracy. Law Minister Mr. Ashwani Kumar, agreeing on the broad agenda for electoral reforms, assured the participants that the reforms are high on his performance radar and he hopes to deliver concrete results at the earliest.  He also conveyed that all the proposals received till now for electoral reforms have been sent to Law Commission and the Commission is expected to send concrete proposals after due consultation with the stake holders.  However, he strongly argued against altering the presumptions of innocence that could potentially disqualify a candidate charged with a criminal offence in terms of the individual’s right to participate in the democratic process.  He particularly drew the attention of the participants to the fact that unchecked authorization to institutions may be abused and the individual which is the nodal point of democracy.

The two Members of Parliament strongly argued for major structural changes and expressed strong discontent toward any attempt to tackle the problem in isolation and piecemeal manner.  They were of the view that broader socio-economic changes and awareness should be the precursor before launching any major electoral reform relating to decriminalization.  Mr. Dinesh Trivedi also drew attention to non-compliance of judicial pronouncements of Vohra Committee report which was given about 15 years back pointing out the unholy nexus between the criminals and politicians.  CEC V S Sampath reiterated Justice Venkatachaliah’s view favouring the disqualification of individuals with criminal backgrounds from contesting elections. The CEC reasserted the demand to provide constitutional authority to Election Commissioners as a necessary precedence toward ensuring independence of the ECI. The broad consensus was that reforms must be introduced before the next General Elections failing which the role of criminals and black money would go unchecked and the future of democracy would be at peril.

Citizen-centric public services

The delivery of public services in a time-bound manner at the level of States and the Centre, if implemented efficiently, could become a single most revolutionary step imparting relief at the cutting edge level. The citizens, particularly our rural brethren, are shunted from one office to other for procuring documents relating to birth, death, caste, income level and other forms of entitlements. An incognito visit to revenue offices at block and taluk level would highlight the problems and consequent harassment suffered by an average citizen in resolving issues relating to his own land record rights. Evidently, there is significant petty corruption in the delivery of services. Even opening of a bank account is almost a life time achievement. The innumerable information sought by the bank in a complicated application form is beyond an average rural person. Hand holding is the only solution where the touts flourish unchecked.

In the UK, “Putting People First” was a radical departure from the traditional top down approach of the bureaucracy. The cardinal principles were avowed standards of services with a commitment to quality, transparency, information giving, courtesy in the delivery of services and above all, an incentive to exercise a choice whenever necessary to meet the expectations of a common citizen. The objective being to suit the convenience of the user measured in terms of relief offered to the citizen.
More than a dozen states have already enacted laws guaranteeing the delivery of public services within a specified time-frame. Although the lists of public services notified under the Act are not exhaustive, it certainly sets in tune a positive beginning. Based on information given by a few States through an application moved under RTI, the Government of NCT of Delhi, Punjab, Karnataka, Rajasthan and Uttarakhand have notified 44, 67, 84, 124 and 63 services under their respective State Acts. The states of Bihar and Madhya Pradesh, who were pioneers in enacting such a law, have specific and exhaustive lists as an outcome of periodic review of implementation. Most of the State Acts have a provision for grievance redressal, imposition of fine on erring officials and provision for performance audit.

The majority of citizens are yet not aware of their rights under this Act. In our analysis, it came to light that there were 12,887 cases in Government of NCT of Delhi in 2011 where penalty was leviable and citizens could rightfully claim relief. But the citizens concerned did not make any claim. To help citizens exercise choice wherever possible and raise their voice when necessary to ensure that quality of service is reasonable and timely, it is important to specify delivery standards easily understood by the public. The citizens still suffer under the impression that there is no such legal right available to them for getting high standard time-bound services. The Government of NCT of Delhi as per the information given under RTI processed 93 per cent applications of a total of 4,06,609 applications in 2011 within a specified time. The efficiency in the case of Bihar and Madhya Pradesh in terms of applications processed was 98 and 99 per cent respectively. The success rates in other states could not be evaluated as the Act has been made effective 2012 and the notification of services to be rendered is being continuously expanded. There is a degree of cynicism amongst the citizens regarding such high rate of efficiency. There is an element of disbelief. It emanates from the fact that majority of citizens are not yet aware of the provisions made under the Act regarding the type of services being rendered and the time table for delivery. The notifications are not publicly available and is mostly confined to the website of the department. The states have made very limited publicity regarding their commitment of time-bound delivery of services. Clear information widely shared about processes and procedures to access the services/benefits should be provided with particular reference to the levels at which they can be sought. Moreover, its integration with e-governance is a must. Evidently, the departments would have to provide community internet kiosks for the effective and widespread use of e-governance facility.

In response to widespread demand and mass mobilisation, the Union government tabled a Citizen’s Charter Bill, 2011. The Bill was referred to the Standing Committee which submitted its report in August, 2012.
It is now awaiting nod from the Parliament to be declared effective. The Standing Committee had recommended that the charter should clearly specify the function of a public authority, time frame for the delivery and the conditions for entitlements of the goods and services.

The Indian Institute of Public Administration had suggested an over-arching legal framework which would identify services, time-frame for delivery and procedure and avenues of public grievance redressal. The role of NGOs and civil societies at the field level is critical at the initial stage to ensure that the promises given to an average citizen are being fulfilled. In the state of Punjab, the government has constituted the Punjab Right to Services Commission whose responsibility is to ensure proper implementation of the provisions of the Act as well as to facilitate and enlarge the scope of public services within the state. It is expected from the commission that it would recommend additional notifications which would bring more government departments under the ambit of the Act. Further, the commission is required to propose changes in the procedures for service delivery to make them more transparent and citizen-friendly. The commission has over-arching powers to recommend action against the erring government officials. It also enjoys suo moto powers to take up cases of administrative failure and carry out inspections of the offices entrusted with the delivery of services as well as the offices of the appellate authorities.

Both the central and state governments are taking steps to bring about accountability, transparency and sensitivity in the administrative culture. The emphasis on developing public services as a professional, merit-based and accountable instrument of good governance — one which fulfils the promises made and bring information in the performance and delivery of services to citizens is dream yet to come true. However, it is distinctly within the realm of possibility.

By Nripendra Misra, Director, PIF

(This article was published in the New Indian Express on 3rd April, 2013)

Reality Check: Key findings of primary research studies on MPLADS and RTE

Impact- evaluation study of the Member of Parliament Local Area Development Scheme (MPLADS)

As part of our mandate of strengthening public policy, planning and governance of development issues, PIF commissioned a pilot study to look at the performance of the Scheme in the year 2009-10 and  2010-11 towards achieving its stated goal of grassroots development through the creation of durable community assets based on locally felt needs.  The Foundation outsourced a micro-level study spread across districts in the four States of Uttar Pradesh (Agency: Giri Institute of Development Studies), West Bengal (Agency: Hijli Inspiration), Maharashtra (Agency: Raman Development Consultants Pvt. Ltd) and Tamil Nadu (Agency: Raman Development Consultants Pvt. Ltd).  Total nine districts were selected based on the State-wise highest and lowest expenditure incurred under the Scheme.  A special consideration was made for those districts that have a sizeable SC/ST population in order to provide an insight into the Scheme’s impact on the development of the disadvantaged class.

The Foundation aimed at both qualitative and quantitative research analysis.  It mainly employed participatory evaluative methodology like focus group discussions to get a ground level understanding of the Scheme’s impact as well as budgetary monitoring tools to identify the structural constraints impacting the implementation of the Scheme.

As is known, the corpus of Rs. 4000 crore annually is placed at the discretion of the MPs and District Planning authorities. There are already reports from the Comptroller and Auditor General, NABARD Consultancy Services and the Parliamentary Committee on MPLADS regarding the strength and loopholes in the implementation of the Scheme.  The Scheme has already run for 20 years and it is important to evaluate the gains from the point of view of its continuity.

The discretion given to the Member of Parliament to meet the locally felt community infrastructure and development needs with emphasis on the creation of durable assets is laudable, but it was broadly experienced during study that the projects recommended and carried out were not aligned with the priorities outlined in the District Development Plan. The only exception being that of rural connectivity through roads, but the field experiences pointed to the fact that allocation of fund was broadly distributed to maximize the number of projects.  Thus, compromising on the durability of the roads constructed. MPLADS guidelines do not have any specific process of selection of particular work, synchronizing it with the locally felt needs or a platform where the expression of local community can be heard towards the final selection process.  It was also observed that the requirement of benefiting SC/ST population in quantitative terms was not clear in the guidelines and, therefore, there was a tendency to work out a proportionate advantage on the basis of their percentage population representation.  The selection of implementing agencies was heavily influenced by preferences of Members of Parliament.  In Maharashtra, the most preferred implementing agency of Labour Societies largely reflected specific segments of the community largely constituted by party workers thereby very close to the Member of Parliament.   The cost estimates and financial vetting of the proposals left much to be desired and attempts were generally made to accommodate more number of projects inadequately funded with no emphasis on maintenance.  The completion and utilization certificates were also not in accordance with the guidelines.  The information regarding completed and ongoing works were mostly not placed on the website.  Moreover, pro-active disclosure at many places was found missing, as the works executed were not displayed on a plague carrying the inscription of MPLAD Scheme details.  The inspection by the Nodal District Authorities was tardy at the senior level and the major casualty to this has been the identification of agency entrusted with the maintenance of the assets created.  There is an urgent necessity to identify agencies responsible for maintenance and earmark an annual allocation of 10% of MPLADS fund for maintenance and repairs of these assets created.

Overall, there is a need for re-visiting and revamping of MPLADS guidelines after taking into consideration the various reports both by the governmental agency and NGOs.  As the dovetailing of the projects implemented under the Scheme with the District Development Plan has not been possible, it is felt that the Government should re-look the details of the Scheme, particularly the selection process.  At present, the projects selected are mostly based on restricted local aspirations, influenced heavily by political overtones and are mostly suffering on account of inadequate maintenance provisioning.

Assessment of the implementation of the Right to Education (RTE) Act, 2009 in selected districts of Uttar Pradesh

The Right of Children to Free and Compulsory Education Act, 2009 (RTE Act), a milestone in the history of elementary education in India reflects a paradigm shift to a rights-based approach towards education. The RTE Act prescribes basic norms and standards for all schools to comply and cater to the educational and overall needs of all children in schools, irrespective of their social and economic backgrounds, gender, abilities or competencies. To gauge the level of involvement of all stakeholders and the status of implementation of the Act in schools, PIF undertook a study in three districts of Uttar Pradesh (UP), namely, Bareilly, Bahraich and Mau, on the basis of the total number of Out-of-School-Children (OoSC) falling in the eligibility age group, from the Annual Status of Education Report (ASER) 2010. The study was outsourced to Planman Consulting (I) Pvt. Ltd., New Delhi.

The categories of participants in the study include teachers, head masters, parental community, students/children, school management committee (SMC) members, and representatives at the Panchayati Raj Institutions (PRI) from all three districts. Six schools from five blocks in each district were proportionately drawn from both rural and urban areas. The data was collected through interviews of students, teachers, SMC members and other stakeholders, observations drawn from school visits and focused group discussions held with parents of enrolled students.

A key observation of the study states that majority of parents and SMC members view the RTE Act as a catalyst which facilitates the availability of schools in proximity to children belonging to weaker sections and disadvantaged groups. Even so, this viewpoint accelerates the want of desire in emphasising on the quality of education in these common schools. SMCs have been formed in all schools. They are aware of their roles and responsibilities towards the school. Yet, sensitization towards the creation of School Development Plans (SDPs) is still deficient.

There is a need to allocate additional funds to ensure implementation of multifarious aspects of the Act. The field study noted that 25 per cent reservation norm in private schools for weaker sections and disadvantaged groups residing in respective districts has been seemingly ignored from being enforced. Although, all three districts have neighbourhood schools (both primary and upper primary schools (UPS)) there is discrepancy in terms of prescribed distance. The concept of ‘neighbourhood schools’ is non-existent in few panchayats as primary schools are not located within a distance of 1km from the community as observed in Mau and Bareilly.

There is a swelling demand to thrust attention on infrastructure expansion in all the districts under consideration. Even as all weather-pucca building, boundary wall, provision for a kitchen to cook and serve Mid-Day-Meal (MDM), HM’s office room, library, playground and the  like are available in most schools, the number of classrooms in proportion to number of students has been found to be less. Crucial in this regard is the lack of access to sanitation facilities and regular potable drinking water in schools. This deficiency could adversely implicate the success of the RTE Act. Currently, multiple classes are being held together in one room, which may have major quality implications affecting the learning environment of a classroom.

Local authorities have been undertaking activities such as maintaining records of all children (who had dropped-out or never enrolled, children who belonged to the weaker sections, and children with special needs (CwSN)), participating in meetings of school management committee (SMC). Even so, these authorities are not absolutely active in their participation in school-mapping, child-mapping, holding awareness activities for sensitizing the parental community and collaboration with school and SMCs is less, in Mau district.

The admission procedures in most schools have been found to be transparent and in adherence to the State norms. There has not been any publication of records, admission registers or enrolments on any public portals by any of the stakeholders. Adequate funds have been provided by State Government under Sarva Shiksha Abhigyan (SSA) to most of the schools as per their needs and requirements. Provisions of Teacher Learning Material (TLM), free textbooks, uniform, scholarships, equipment and supplies for children with special needs (CwSN) etc. were available in all schools. Noticeably in most schools of the three districts over-aged children, those admitted late, drop outs or never enrolled children and CwSN have not been integrated into the common classroom. Special trainings for mainstreaming of OoSC and age-appropriate admission require specific attention. Adequate number of teachers is a concern in almost all schools at both primary and UP levels, especially for specific subjects. All teachers have been observed to have minimum eligibility qualification, attend trainings organized by District Institute for Education and Training (DIET), and are recruited as per rule.

Our study highlights that issues pertaining to enrolment, access, school infrastructure and other services such as quality teachers, management and monitoring system exist in the state educational system. In addition, it is relevant to bridge the gap between the rural and urban areas particularly in maintenance of records, appointment of teaching staff, infrastructural development and challenges to enrolling of children and reducing dropout rates.

Alleged criminals contribute to political stability !

At least a dozen prominent NGOs have filed Public Interest Litigation (PIL)  before the Hon’ble Supreme Court seeking intervention to shut the entry of politicians with criminal background.  These PILs are at various stages of hearing in the assigned Benches of Hon’ble Supreme Court.  The gist of  the prayer before the Hon’ble Supreme Court is as follows:-

(a) That article 326 vis-à-vis article 84/173 contains a bar both express and implicit against crime tainted persons becoming candidates or members.  Consequentially, sections 8, 9 and 11A of the Representation of People Act, 1951 (RPA)   be declared unconstitutional.

(b) Criminalisation affects the basic structure of democracy and there is a constitutional obligation to uphold free and fair elections envisaged under article 326 of the Constitution and thus ensure that the opportunity of one man one vote is neither breached directly or indirectly.

(c) That direction be issued to the Union Government for bringing legislation to disqualify persons with criminal background who have been charged with serious offences punishable for not less than five  years provided the appropriate court has taken cognizance of the offences.  Provided further that the offence was registered not within one year of the election notification.

(d) Further, the direction should require the Legislature to consider making appropriate law on the basis of recommendations by various expert commissions including the Law Commission on this subject.

(e) To fast track the cases of criminals who have entered the legislature with time bound disposal preferably in six months.

As mentioned,  Hon’ble Supreme Court is seized of this very important matter in different Benches.  It would be better to consolidate all such PILs for hearing by a common Bench so that important constitutional and legal issues raised as well as the relief sought are adjudicated and a stamp of  finality is given.

As per the existing provision in the RPA, 1951, anyone  found guilty of a criminal offence and has been convicted for a prison term of two years or more is disqualified to contest election for a period of six years.  The disqualification remains valid unless the operation of the conviction has been stayed   or suspended.  However, the RPA, 1951 provides a relief under section 8(4) to a sitting Member of Parliament or the Legislature of a State, who if convicted will not be automatically disqualified if within three months of the conviction, the elected representative prefers an appeal or revision against conviction.  Thus, the disqualification is suspended till the outcome of the appeal/revision by  a  competent court.

In a recent affidavit filed by the Ministry of Law & Justice, it has been stated that the convicted MPs/MLAs get disqualified only after exhausting all legal remedies and it is based on a legislative policy to “ensure existence and continuity” of an elected House.  The same affidavit also asserts “thus the plea about criminalization of politics based on the factual statement that a large number of sitting MPs are convicts is unsubstantiated”.

It is unfortunate that the criminalization in politics has been dealt in such a manner.  Is it not a fact that 1158 candidates contested  Lok Sabha election in 2009 who have criminal antecedents in terms of charge sheet framed?  Is it not a fact that 150 MPs have criminal record and 72 MPs are facing serious criminal charges.

Significant number of elected representatives  retain their position by maneuvering  the system in such a way that the hearing on their cases get deliberately delayed at the trial court itself.   It is evident  that such privileges are not available to any other category of citizens enjoying public office or otherwise.

One expected that the Union Ministry of Law & Justice should have recognized the menace of criminalization in Indian polity and assured the Hon’ble Supreme Court regarding measures to check the rot.  Deposing before the Committee on Law & Justice, Secretary, Legislative Department, on 25th January, 2007, had proposed a new section 8(b) to keep away from elections those persons alleged to have been having criminal background.  As per the suggestion, persons charged with heinous crimes at least six months prior to the date of nomination for election shall be disqualified unless acquitted.  It was also clarified  by the Secretary, Legislative Department that heinous offences have been identified for this purpose.  The Ethics Committee of the Parliament also in 1999 had suggested to the Government that electoral reforms should be expedited to keep criminals out of the political arena.  Both the Law Commission in its 170th Report and the National Commission to Review the Working of the Constitution (2002), had proposed a bar for entry of persons charged with any offence punishable with imprisonment  of  five years or more.  The Law Ministry, perhaps, avoided any commitment to Hon’ble Supreme Court in order to escape  any likely embarrassment in future.

The first step could have been to enact a law for the political parties which could ban the parties from giving ticket to contest elections to candidates having serious criminal antecedents.   Such heinous crimes could be listed for the purpose.   The Election Commission could be empowered to frame rules which would disqualify the candidates charged  for serious offences to contest elections.  The minimalistic agenda could be that after the election results are announced, the Election Commission may be asked to finalise a list of winning candidates who have serious criminal cases pending against them where charges have been framed by the court of law and these should be forwarded to a fast track court.    Any appeal filed by such candidates against the framing of charges or against later conviction by trial courts, should also be referred to a fast track court set up by the High Court/Supreme Court.  All such matters could be decided within six months.  The membership of the Lok Sabha  or State Assembly of such candidates should remain suspended till the pendency of the case.

The above arrangement would not disturb the stability of the Government. The suggested constitution of fast track court could be immediately implemented without waiting for an exhaustive electoral reform, which has been  evading political consensus.  This would create a level playing field for all parties and would discourage the political parties from giving ticket to criminals.  The criminals would also feel discouraged as they  may be subjected to a fast track decision which does not serve their self-interest.

By Nripendra Misra, Director, PIF

Proposal by Public Interest Foundation on Electoral Reforms in India

The electoral process was set in tune in the independent India with the institution of Election Commission of India (ECI) and the office of Chief Election Commissioner (CEC) preceding the enactment of the Representation of the People Act (RPA), 1951. The elections of 1951 captured the euphoria of India’s constitutional democracy. To Sukumar Sen, the first CEC, the elections in India were, unquestionably, ‘the biggest experiment in democracy in human history’ (Guha 2007, 147)1.

The widely contested debate on ensuring democracy to be safe for a 21st century world order evokes a critical thinking within the institutional structure of ‘the great Indian democracy’. The grandeur of the sub-continent’s electoral process is being marred by the escalation of criminals in politics, often,making laws on offences they are associated with. This, indubitably, affects the process of democratisation in the country. As the evidence of substantive democracy finds its presence in the public discourse on issues of governance deficit, there is an exigency to sustain the idea of Indian State constructed on the framework of liberal democracy.

You can read the rest of the article here.

How serious are we about the outcomes of MPLAD Scheme

Member of Parliament Local Area Development Scheme (MPLADS) was initiated in 1993.  Such involvement in grassroots projects is a policy intervention which commits public money to benefit each parliamentary constituency through allocation and spending decisions mooted by their representatives in Parliament.  The elected Members of Lok Sabha can propose developmental works in their constituencies to the respective District Collectors.  The elected Members of Rajya Sabha can recommend works in any district of their State.  A nominated Member of Rajya Sabha can suggest works in any one State of his choice.

Parliamentary involvement in grassroots projects has been accepted in both developed and developing countries, like Kenya, Pakistan, US, Bhutan, Jamaica etc.  Such schemes are popular vehicle for politically centered development that seeks to build relationships between the elected representative stake holders and ground level Government institutions, civil society etc.  It is argued as a political response to gaps in fulfilling local need which does not get picked up through top down approach of planning process.   However, it does throw a significant challenge for policy makers and administrators to devise norms, guidelines and procedures for the effective utilization of the huge funds placed at the disposal of the local legislators.  There are issues of accountability, determining development priorities, sustainability of assets and above all passing the litmus test of level playing field amongst competing political candidates.

The Scheme is currently administered by the Ministry of Statistics and Programme Implementation.  In 1993, Rs. 5 lakh was allocated to each MP which has now grown to Rs. 5 crore per Member of Parliament (MP) per annum since 2011.  There are guidelines which provide an elaborate inventory of project selection criterion, accounting procedures, selection for implementing agencies, reporting system and monitoring mechanism.  It lays a special emphasis on the creation of durable community assets based on locally felt needs within the framework of national priorities, such as drinking water, education roads, sanitation and earmarked allocation for areas inhabited by Scheduled Castes and Scheduled Tribes.  The District Magistrate and local bodies are the focal authorities for implementation.  There is a distinct role for Panchayati Raj institutions and urban local bodies to carry out the implementation.  The total release of funds since inception is approximately Rs. 29000 crore up to April, 2013 with an outgo of approximately Rs. 4500 crore annually earmarked for the MPs.

The Scheme was challenged before the Hon’ble Supreme Court on grounds of constitutional validity and misuse of funds.  It was argued that the powers given to Member of Parliament for incurring expenditure is in violation of Article 282 of the Constitution of India.  Further, it was termed as contrary to the 73rd and 74thAmendments to the Constitution which entrust the local self governance to Panchayats and Municipalities.  It was stated that the said amendments do not envisage a special role for the MP in determining the projects and related expenditure.    However, 5-Member Bench of the Hon’ble Court dismissed the petition and described MPLAD Scheme as valid and intra-vires of the Constitution.

The Scheme was also examined by the Second Administrative Reforms Commission.  The recommendation of the Commission in 2007 under its 4th Report on Ethics on Governance was to abolish both MPLAD and MLALAD Schemes.  The Commission had observed that any scheme at the disposal of Legislator to select projects, or authorize expenditure, should invite disqualification on grounds of Office of Profit.

Public Interest Foundation, a NGO, commissioned a pilot study in nine districts in the four States of Uttar Pradesh, West Bengal, Tamil Nadu and Maharashtra.  The selection of the districts was made in the background of implementation status, both physical and financial for the year 2009-10.  A special criterion was made for the districts having a sizeable SC population in order to provide an insight on the impact of the Scheme on the weaker sections.  The main objective of the field level study was to identify the substantive aspects about the efficacy of the scheme in achieving its stated goal of community development through creation of durable assets and also to make a qualitative assessment regarding compliance of the guidelines.  We present below the salient findings with a view to revamping the Scheme.

Fulfilling of locally felt needs forms the backbone of this scheme.  The startling fact that came to the fore through the research study was that the guidelines do not provide an elaborate process for selection of works.  There is no prescribed platform or any mechanism where the stakeholders can express the needs of the area.  Presently, MPs recommend works based on informal information channel of local supporters and party members.  It was noted that the guidelines do not envisage adoption of works from the district plan of development and the prioritization is often narrowed to selected places preferred by interest group totally overlooking the urgency and dovetailing with the works identified in the district plan. Discussion with individual MPs in the concerned states revealed that the proposals are entertained from the local prominent personalities like the Pradhan, local agents of the MP and key opinion makers in the area.  No efforts were made to examine if the proposal formed part of the district plan.  Also, the consideration of maintenance, proper upkeep was not the criterion at the time of selection.

MPLADS guidelines have few missing links.  Detailed specifications on maintenance and transfer aspects of the projects are necessary to ensure the qualitative benchmarking of the assets created under MPLADS.   In the course of field survey it was found that after the completion of MPLADS work, the assets created are transferred to the users’ agencies and they become liable for its maintenance. But due to poor quality of asset created under the scheme, its maintenance becomes very costly and difficult. System needs to be in place to ensure sustainable management of assets created under MPLADS at the District and sub district level. An annual allocation of 10% of MPLADS fund for maintenance and repair of assets may be introduced. Another important drawback in MPLADS guidelines regarding project packaging was brought to the fore while examining the issue of work ceiling in Maharashtra.  The MPLAD scheme guidelines merely specify maximum size of projects, without outlining other equally important aspects of project bundling which optimize the project outcome such as specifications in terms of project size, coverage, spread, and appropriate technical specifications to ensure durability. The present guidelines leave room for creation of inferior, non-durable asset without any claims for long-term durability.

Regarding allocation of funds to the Scheduled Caste/Scheduled Tribe population, as is detailed in clause 2.5 of the revised MPLAD guidelines of 2005, the very basis for allocating funds with reference to under-served group was missing.  It was found that in districts of Jalna and Latur in Maharashtra, projects were chosen without any reference to the demographic features of the community.  In all the four States, there was no conscious effort for identifying projects which would address the inclusivity of Scheduled Castes and Scheduled Tribes.  There is a  strong case to revise the MPLAD guidelines to make mandatory the proportionate provision and planned spending of funds for SC/ST areas.  The earmarked endowment should be used on  projects specifically for the development of habitation concentrated by SC/ST populace only.

One of the weakest links found in this MPLADS implementation evaluation study  was  ensuring proactive disclosure for greater public awareness about the MPLADS projects. The broader experience in the sampled district of Maharashtra, Tamil Nadu and West Bengal has been that DAs do not accord due importance to public proactive disclosure.  The study reveals that in most of the cases IAs are not even aware of the rule of mandatory disclosure of information to the community at large. The study teams of all researched district uniformly informed that they did not find display of completed and ongoing works in the office of District Authorities. The MPLADS website does provide the scheme details, and sometimes irregular updating leads to misinformation. For example some schemes in the Web Portal display “not started” although in reality it has already been commissioned and nearing completion. Many of the schemes have not even been posted on the website.  To strengthen the transparency and accountability aspect of the MPLADS execution, public disclosure aspect of this scheme needs to be especially strengthened. All important information like name of the MP, total expenditure incurred, time taken in completion, department/agency responsible for upkeep should form a part of this mandatory public disclosure at the physical site of the project; and this information should also be regularly updated on the website at the district, state as well as the ministry level.

It was felt that the preference of elected representative in choosing implementing agencies largely determines the job allocation.  As per the norms, the district authority is empowered for the selection of implementing agencies (IAs).   There are basically two types of mechanisms for selection of executing agencies.  In general, after getting recommendations of the MP, beneficiary organization selects executing agencies of their choice and get the estimation done.  In certain cases, especially if the project is in the same vicinity as that of the MP’s, the choice of MP in the selection prevails, though the MPs justify that selection of IAs is based on efficiency considerations.   In the case of Maharashtra too, the majority of the works were recommended below 15 lakh so as to favour the labour societies.  And these labour societies, as per field survey, are run by sub-segments of the community or party workers connected to the MPs, thus ensuring that the vested interests are served.

The field study also highlighted serious operational inadequacies.  It emerged that the selection and implementation time table were mostly not observed.  The guidelines provide for selection within 90 days of the commencement of the financial year.  However, the proposals from the elected representatives are received throughout the year under the pretext that release of funds is also skewed resulting in piecemeal recommendations of the projects.  The institutional set up at the district level is inadequate to handle the MPLAD Scheme.  The checking of eligibility, technical feasibility of the projects, financial estimates and in-depth physical verification is very perfunctory and there are no uniform standards for cost calculation and financial vetting.

It is important that the guidelines of the scheme are strengthened so as to create a feasible alternative for integration of MPLADS with the District Planning, without jeopardizing the flexibility built-into the scheme. Mandatory inspection of schemes by state and Centre level officials must be adhered to ensure qualitative third party check. Moreover there is a felt need for proper appraisal of MPLADS spending and their out comes on the lines of Mid-term Appraisal of Five Year Plans. This will help make MPs more accountable towards responsibly recommending different MPLADS projects in their constituencies. Finally the scheme should get subsumed in the district and state plan after five years.

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

Why bureaucracy baulks at decisions, should omit draconian provisions in Prevention of Corruption Act

Our Prime Minister has time and again appealed to bureaucrats for taking fair and objective decisions based on sound evidence and designed to serve the national interest. Manmohan Singh exhorted civil servants to fight the tendency of not taking decisions because of the fear that things might go wrong and the civil servants might be penalised for that.

In his speech on Civil Services Day, 2012, he had observed, “It is our government’s commitment to put in place a system and create an environment in which our civil servants are encouraged to be decisive, and no one is harassed for bona-fide mistakes of errors of judgement. We stand committed to protecting honest and well-meaning civil servants who might have made genuine errors in their work. And I sincerely hope that these intentions of our government are shared by the state governments too.”

In order to appreciate the mindset of senior civil servants, both IAS and IPS, perhaps performance-tracking of both the central and the state government would be revealing. It would emerge that the central and state governments have not lived up to the commitments and the civil servants, both serving and retired, have been left to fend for themselves even where objective, fair and transparent decisions emerging from the deep analysis of the subject have been taken for the best interest of the country. More often than not, it is the political leadership that has yielded to spot expediency.

Our Prime Minister has great expectations from the civil servants in terms of contribution to the society.

There is a draconian provision, section 13(1)(D)(III) of the Prevention of Corruption Act, 1988, as one of the criminal misconduct by a public servant.

It reads, “While holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.” It could be interpreted that a public servant could be prosecuted if he has taken a decision that results in pecuniary gain to an individual without any public interest.

In today’s scenario, most public servants are required to make a decision to facilitate growth. Private sector is often the key partner in most developmental endeavours. It is difficult to imagine a scenario where the key economic actors, i.e., private, public or both, that would not gain from any decision that encourages or sets in motion an economic activity.

Whether it is tax rationalisation, amendment in the duty, fee or any other form of tax levying, disposal of public assets including disinvestment, or incentives for making a trade competitive, they all have features that impact pecuniary gain while undertaking such activities. A day may come when tax exemptions announced with good intentions may also be interpreted as criminal misconduct.

Our Prime Minister has cautioned against a “mindless atmosphere of negativity and pessimism”. There is no certainty that the honest and innocent would be spared from harassment as long as such provisions exist in the Act. There is a fair possibility that many of the economic decisions could be interpreted differently with the dynamics of the rationale taking different shades at different times.

It is now left to an investigating officer to interpret a decision as one of criminal misconduct. It is also important to note that the public servant cannot only be prosecuted during the active service but any time after the retirement till death.

It was against this background that the Committee on Civil Services Reform ( Hota Committee) in its report has strongly recommended a review of the section 13(1)(D)(III) of the Prevention of Corruption Act, 1988. The committee had observed that all the commercial decisions benefit one party or the other and it is often difficult for a public servant, even though acting in good faith and national interest, to ensure conformity with the aforesaid provision of law.

It observed that the easiest course for the civil servant is to avoid taking a decision or refer it to a larger body or committee to take a decision. This would largely explain the present atmosphere of safe play and lack of decision by pushing the file.

Unless this draconian provision is omitted, civil servants will always be inhibited from taking bona-fide commercial decisions. It is also important to note that the provision does not even require some kind of material nexus between the officer and the concerned pecuniary gainer.

(This article was published in the Economic Times on 3rd December, 2012)

Empowering poor children

The Right to Education Act, 2009, is a landmark Act, but certain crucial provisions of it for the empowerment of marginalised children have not been implemented ever for the session of 2012-‘13, three years after the Act was notified.  This is due to certain ambiguities, which could have been avoided with timely intervention and joint ownership of the revolutionary project by both Centre and States. Clearly, its execution still needs a great deal of detailed homework before we can claim its successful take-off at the ground level.

The point under examination is Section 12 of RTE Act, which mandates both public and private schools to reserve 25 per cent of their seats for children from backward backgrounds. Against this 25 per cent quota the private schools will be subsidised /reimbursed by the State at the rate of average per learner costs in the government schools. This 25 per cent reservation for underprivileged children takes into account both social and economic backwardness.

The Supreme Court recently upheld the constitutional validity of this Section which requires schools, both public and private, to give one quarter of their seats to low-income, socially underprivileged children. Two judges of the three-Bench panel ruled that the law does not violate the constitutional rights of those running private schools. The Bench however did make an exemption for private ‘minority’ institutions, saying that the Act ‘infringes on the fundamental freedom’ of such schools.

One of the arguments being offered by private schools against the implementation of the 25 per cent compulsory pro-poor quota is that children from disadvantaged groups and economically-weaker sections will face serious adjustment challenges in an elite setting. However, it is not hard to find instances of unaided private schools that have successfully addressed this problem of social integration within the classrooms. Nevertheless, the deeper-latent concerns of these private schools over economic implications as well as other ambiguities cannot be written off.

The Act is a central one, but for its success an important pre-requisite is that it is combined with empowering ‘Model Rules’, the formulation and promulgation of which is the state’s jurisdiction and responsibility.

While the unceasing debate over the 65:35 finance sharing between the Centre and the States towards the implementation of the Act still forms a bone of contention, the modality for the economic reimbursements to private schools due from state governments against the 25 per cent quota has still not been worked out for many states.

For the purpose of truly implementing this 25 per cent quota the model rules of the state government needs to ponder over certain very important questions that if not dealt with now, may prove to be serious impediment for the future. Questions like, will the State contribute towards other peripheral costs like commuting expenses? Will the State share the burden of remedial classes and counselling that might be a necessity given the fact that underprivileged children will start to school straight form Class I along with other economically better-off students who may already have attended 2-3 years of schooling? Will these underprivileged kids be deprived of other benefits/assistance that a State/Centre chooses to provide socially and economically backward children enrolled in government schools like scholarships, free uniforms, free textbooks, free schoolbags, writing materials, etc? How will the government ensure that these children going to private schools under the 25 per cent quota are not left out of the ambit of the mid-day meal that acts not only as an important motivation for school-coming for these poor children, but is also an important intervention tool for fighting hunger and ensuring the nutritional needs of these needy children?

So far, the experience with the state governments has not been very forth-coming. To take the example of a few economically well-off states: Andhra Pradesh has put the onus of non-implementation of this 25 per cent quota for the year 2012-’13 on the Centre, saying that it has no funds to reimburse fees for students. As per media reports, the Andhra government estimates that nearly Rs 90 crore is needed to admit the 25 per cent quota students in Class I in private schools this year, which will increase by Rs 100 crore every year in the next eight years, as the RTE promises free education till Class VIII. Therefore citing financial crunch as the reason, the Andhra government has exempted certain elite schools that are affiliated to the state board but collect high fees.

In Gujarat private schools are reportedly not admitting under-privileged children under the 25 per cent quota for 2012-’13. The State says that it is waiting for a response from the Centre regarding the required funds.

More draconian are the frequent cases of targeted social ostracisation of the children from underprivileged backgrounds who sometimes make it to private schools. As per a news report, in one of the private schools of Karnataka, four children were forced to attend school in humiliation after the private institution allegedly cut off tufts of hair on top of their heads. This was reportedly done to distinguish these children, admitted under RTE quota, from other students.

If the idea of the 25 per cent quota for children from under-privileged background in public and private schools is to further empower this section with choices of better opportunity, then it should not be at the cost of the of other benefits that they are entitled to by the government, like the mid-day meal. The states need to be more motivated to take-up the ownership of this Act only then the real spirit with which this Act was conceived will be kept alive. The long-term implementation of this Act at the ground level through the dynamic involvement of local bodies cannot be ensured without the proactive initiative and participation of the state governments.

(This article was published in the New Indian Express on 30th November, 2012)

Elections and Creative Accounting

All political parties confirm the truth that contesting elections costs big money and as a rule it is usually over and above legally prescribed limits. This electoral compulsion for enormous amount of funds has become the fountainhead of the “super structure of corruption”.

The Election Commission of India (ECI) determines the ceiling on election expenditure by candidates from time to time. Based on its 2003 notification, the current maximum limit on election expenses for contesting parliamentary constituencies is Rs. 25 lakh. This limit varies from state to state, with the smaller states such as Goa having a ceiling of Rs. 14 lakh and bigger states such as Uttar Pradesh having a limit of Rs. 25 lakh.Despite individual candidates filing an account of their election expenditure, there are no authentic estimates of election expenditure by various candidates in parliamentary elections. To understand the scale of expenditure involved, it is necessary to draw some assumptions and relate these to ECI’s election ceiling limit. For estimation purposes, there are 543 parliamentary constituencies and approximately 15 candidates contesting from each constituency. This has been determined on the basis of the total number of candidates who numbered more than 8,000 in the 2009 general election. If we take the limit of Rs. 21 lakh as the approximate median limit on election expenditure —calculated by averaging the ceilings across 28 states, which range from Rs. 14-25 lakh—the total cost of elections to the 543 parliamentary constituencies works out to around Rs. 1,710.45 crore. In other words, Rs. 1,710.45 crore would be the approximate official election estimate to the 2009 Lok Sabha elections as calculated by ECI.

To relate this official expenditure to the actual expenditure incurred by candidates would be to make a farce of ECI’s ceiling on election expenses, which is totally unrealistic when contrasted with the ground-level situation. The cost of transport alone, including fuel and hired vehicle charges, spent by candidates in each constituency will work out to be more than Rs. 20 lakh. This has been estimated on the assumption that a single candidate hires around 20 vehicles for the 45-day campaign period, covering on average of 200km per day with a fuel efficiency of 8km per litre, calculated at the rate of Rs. 70 per litre. In addition, there is the fee of hiring 20 vehicles for the campaign period of 45 days at the rate of Rs. 1,000 each per day. This, however, excludes other expenditures essential to an election campaign such as money spent on party workers, boarding, printing of pamphlets, dole for supporters, etc.

The majority of members of Parliament (MPs) informally admit that the expenditure by candidates in each constituency ranges from Rs. 1-5 crore, with some prestigious constituencies exceeding even these amounts.

When trying to relate the approximate actual election expenditure made on the modest assumption of Rs. 2 crore to the annual income of major political parties for fiscal 2010, it becomes apparent that there is an anomaly between the two. If we take, to give one example, the Bahujan Samaj Party, it contested from 500 constituencies incurring an expenditure of Rs. 105 crore based on the average ceiling limit of Rs. 21 lakh. But its annual income for that fiscal was Rs. 57 crore. This inconsistency requires further probing by the election authorities.A more detailed analysis raises the question of the relevance of imposing such a ceiling on election expenditure, one that is clearly out of sync with the actual expenditure incurred by parties and candidates at the time of elections. Even more worrisome is the fact that these expenditure ceilings apply to the candidates and do not apply to the costs borne by well-wishers, party workers, friends and relatives. In order to rationally account for this, it would be good if the law ministry immediately revises the election expenditure ceiling, raising it to a level that reflects ground realities.

While ECI has made serious efforts to track election expenditure by strengthening the disclosure requirements by candidates and parties, it seems that a huge amount of funds expended remain undisclosed and unaccounted for in official records. Along with a thorough scrutiny of election expenditure, ECI needs to play a more proactive role in enforcing a bare minimum of financial discipline among political parties. This must include full compliance to its operational guidelines on financial reporting on voluntary contributions received and income and expenditure statements.

Based on the information made available by ECI, more than 80% of registered political parties had not submitted both their annual audited account statements and their annual contribution reports. Without the basic maintenance of party accounts including their audit by auditors empanelled with the Comptroller and Auditor General of India, public accountability and transparency in the election expenditure of political parties will remain a pipe dream. After all, as former prime minister Atal Bihari Vajpayee observed, why should an MP begin his/her career in Parliament by embracing an untruth.

(This article was published in Mint on 11th June, 2012)

Get cracking on corruption!

The issue of ending endemic corruption, including combating the menace of black money, needs to be addressed with both sincerity and speed. The government claims to have taken a series of measures to meeting the challenges posed by corruption in public life. However, the impression remains that it is ineffective in tackling the scourge of corruption, which is affecting all walks of our life and making the common citizen, who has no ‘Mai Baap’ (money or influence), its victim.

The United Progressive Alliance chairperson Sonia Gandhi in December 2010 outlined a concrete 5-point agenda before the 83rd Congress plenary session that included fast-tracking of all corruption cases to restore people’s faith in the political system; full transparency in public procurement and contracts through a clear legislation and procedures; relinquishing discretionary quota by all Congress ministers at the Centre and in the states; and formulating an open and competitive system of exploiting natural resources.

A review of the status of implementation of these action-points reveals that much more needs to be done. The new system of fast-track courts to handle corruption cases is yet to take shape and court proceedings continue as before. Even the demand for fixing a time-frame for deciding pending criminal cases against elected representatives has not materialised, with a number of public interest litigations being filed on the subject. There is a popular demand for electoral reforms, specifically to prohibiting criminals from contesting elections. The new public procurement law is facing stiff opposition from vested interests in the government. The issue of complete withdrawal of discretionary powers has happened sporadically at certain levels of government functioning but this is not being practised uniformly throughout the government set-up.

An open and competitive system of exploiting natural resources is still at the examination stage. The Chawla Committee has submitted its recommendations but this remains a complicated subject, requiring time and expertise to give shape to it completely. Even the simplest of the 5-point programme that requires an austere, simple lifestyle and refraining from indulging in a vulgar display of wealth has not been converted into an action programme. It is because of this slow pace of implementation that the Centre has received flak from the public.

Along with this, the Union government has addressed socio-political challenges of combating corruption as a law and order issue. Having been responsible for maintaining law and order during my career, I can say with some conviction that the police forces can handle the challenges of law and order effectively, if there is clarity of the mission to be accomplished. Socio-political challenges should have been addressed through good governance made possible by effective and timely processes of government decision-making. Unfortunately, law and order issues and socio-economic challenges intermingled in the government’s response to public agitations by Baba Ramdev and Anna Hazare creating confusion.

The Lokpal Bill has been finally introduced in Parliament and is currently awaiting the nod of the Rajya Sabha. Perhaps, it may not see the light of the day in its present form. One fails to understand the political attempts to complicate matters that can be kept simple. The institutions of the Lokpal and Lokayukta need not be set-up under an overarching law. Even if it is legally and constitutionally tenable, one needs to respect the federal character of the Indian polity, particularly when many states already have a state-level Lokayukta and only require upgrading their powers.

There is no need for the apex anti-corruption body of the Lokpal to have an organic link with the Citizens’ Right to Grievance Bill, whose objective is to reform the state of public service delivery by giving every citizen the right to time-bound public services. Why have an overarching Citizens’ Right to Grievance Bill, when many states have already enacted their own public services guarantee acts? At best, the government could have enacted a model Lokayukta and right to public services law for the states to adopt and emulate. Perhaps, the imperative to meet the challenges from Team Anna led to the series of measures which have not been examined thoroughly either in terms of its acceptability by states, or its administrative and financial feasibility and its effective implementation.

Now certain individuals from Team Anna have made unwelcome remarks on the proceedings and MPs. The issue is that Parliament need not take cognisance of every utterance made by a few organised groups. To protect the sanctity of Parliament, members could have passed a law similar to those uploading key national symbols like the national flag, protecting them from the onslaught of public outrage. By debating Team Anna’s utterances, Parliament has given undue recognition to a select group of social activists, enabling them to garner more political mileage than is due. Individuals and groups trying to weaken parliamentary institutions are no doubt hurting the cause of democracy. The institutions responsible for running the wheels of democracy have to respond with greater care. Let them not give undue recognition to those who are not mindful of propriety.

The real answer to Team Anna is through concrete actions taken on key demands made at different points of time, be it on electoral reforms or on curbing the role of black money in the economy. The government need not reinvent the wheel on these issues; instead it should refer to the useful suggestions and legislations made by various government-appointed committees like the Law Commission and Administrative Reforms Commission that lie in the public domain.

Parliament members would do well to debate these recommendations than to discuss the conduct of a few activists. With so many important Bills pending before Parliament including The Judicial Standards and Accountability Bill, The Electronic Services Delivery Bill, The National Food Security Bill, Citizens’ Right to Grievance Redress Bill, The Lokpal and Lokayuktas Bill, etc, the time to act for the central government is now. With the clock ticking before the next public outburst on corruption erupts, Parliament cannot afford to delay the passage of the Lokpal Bill for want of time. As the old adage goes, action, not words, is the most effective tool to silence critics.

(This article was published in the New Indian Express on 9th June, 2012)