Who is afraid of electoral offences?

As 2014 General Elections dawn on India, the purport of electoral reforms in the country finds primacy in public dialogues amongst the citizenry. One of the critical issues concerns the futurity of electoral offences in India’s jurisprudence. Analyzing the self-sworn affidavits of candidates who have contested Parliamentary and State Assembly elections since 2008, National Election Watch and Association for Democratic Reforms reports that 30 sitting MPs and 127 MLAs have declared cases related to electoral offences and corrupt practices during elections against them.

The Hon’ble Supreme Court has time and again asserted that a voter has the elementary right to be informed of full particulars of a candidate contesting election to the Parliament and State Assemblies and this right is read as an integral part of Article 19(1)(a) of the Constitution. While casting of a vote by a voter is accepted to be a manifestation of the individual’s freedom of expression, the voter’s right to know full particulars of a candidate is provided for by Section 33A of RPA, 1951. The enforcement of Form 26 emanating from Section 33A of RPA, 1951, is still being debated at various levels both in Government and judiciary while the pending electoral offences are piling up in courts. Although Section 33A was inserted in the RPA through Act 72 of 2002 providing for disclosure on specific queries concerning a candidate’s criminal antecedents, the direction of the Supreme Court judgment in Union of India (UOI) v. Association for Democratic Reforms and Anr., (2002) providing for the right of a voter to be informed of disclosures on assets and liabilities, and educational qualifications of candidates haven’t been inserted into Section 33A. Therefore, it is not possible to ensure that violation of the newly introduced requirements under Form 26 would be accounted for the punishment under Section 125A of the RPA, 1951.

The first uncertainty with respect to disclosure of information under Section 33A concerns the powers of the Returning Officer enshrined in Section 36 of RPA, 1951. The Returning Officer under Section 36(6) has the power to accept or reject the nomination while providing a brief statement of reasons in case of the rejection of the nomination paper. However, the powers of the Returning Officer have been severely curtailed by the Supreme Court judgment of 13 March 2003 in Peoples Union of Civil Liberties vs. Union of India, which stressed that the “rejection of nomination paper for furnishing wrong information or concealing of the same cannot be justified at the level of Returning Officer as it would prove arduous on the Returning Officer and then court to consider the truth or otherwise of the details furnished with reference to the documentary prove”. Complying with the judgment, the ECI order of 27 March 2003 clarifies that a nomination shall not be rejected on the ground of incomplete or wrong information furnished in the affidavit and directs Returning Officers to file complaints before a competent magistrate for prosecuting the concerned candidate in case of false statement in an affidavit under Section 177 of the Indian Penal Code and/or Section 125A of the RPA, 1951. This vacuousness of an appropriate authority was remarked by Justice Verma Committee in its report on Amendments to Criminal Law, 2013 that to “deny power to the Election Commission or the Returning Officer to verify the correctness of the information constitutes a major impediment in law”. The Committee opined that it “… makes a mockery of the entire provision contained in Section 33A”.

The Supreme Court judgment of 13 September 2013 in, Resurgence India v. Election Commission of India and Anr., opened a limited window by stating that if a candidate fails to fill the blanks in the affidavit towards furnishing required information along with the nomination paper even after the reminder of the Returning Officer, the nomination paper ought to be rejected. Effectuating this judgment of
13 September 2013 would require modifications in the circular of the ECI dated 27 March 2003 mentioned earlier. The Returning Officer should at least now be vested with the power to reject the nomination paper after due scrutiny in case the requirement under Form 26 has not been fulfilled. It is to be noted that the Returning Officer has not been empowered to reject nomination of a candidate giving false information or concealing any information

The electoral offences as a result of false information or concealed information have been dealt in Section 125A of the RPA, 1951. The Returning Officer in such cases is required to refer the matter to the concerned court for determination of offence. The long pendency of such electoral offences enables the candidate to contest election without any fear of consequences. The voter is perplexed as his/her expression manifested is effectively not determined by the information being given.

Currently, the term of punishment under section 125A of RPA, 1951 amounts to an imprisonment for a term which may extend to six months, or with fine, or with both. The period of punishment under Section 125A should at least be enhanced to a term of two years under Section 8 of the RPA, 1951. Once the sentence is raised to two years, any conviction would attract disqualification under Section 8(3) of the RPA, 1951. The period of disqualification could at least be three years as provided in section 10A of RPA, 1951 which deals with the failure to lodge account of election expenses.

There is an exigent need to restore the powers of the Returning Officer in accordance with the judgment of the Supreme Court and all complaints under section 125A of RPA, 1951, should be decided within six months from the date of the cognizance of the complaint in sync with the provisions relating to election petition in Section 86 of RPA, 1951, ascertains that “every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial”. Perhaps, there is a need to establish election tribunals for election petition and electoral offences. The electoral offences would repeat themselves unless the vigilant intervention by the courts in upholding the Constitution.

By (N. Misra is ex-Chairman, TRAI and Director, Public Interest Foundation and A. Karthika is Research Associate with the Foundation). E-mail: director@publicinterestfoundation.com

(This article was published in Amar Ujjala on 2nd April, 2014 )

No more soft options to ECI for enforcing election code of conduct

Election Commission of India (ECI) has full powers to enforce election code of conduct. 2014 elections will be remembered for hate speech, communally charged expressions, deliberate play of divisive politics and lack of political civility. There have been expressions from politicians which seek to dent the apolitical feature of our army. The support of the voter has been sought on grounds of religion and communal feelings. A candidate in UP has advocated for eschewing secularism and casting vote on communal considerations. Another candidate in Bihar has threatened that any opposition to its party would invite expulsion to other countries. Open threats have been given for demarcating residential premises based on religious belief.

The judicial pronouncements have already conferred on ECI all powers necessary for free and fair conduct of elections flowing from Article 324 of the Constitution. In Bhim Singh vs Election Commission (1996), the apex court observed that EC can exercise any power which is necessary to achieve the objective to maintain a proper atmosphere conducive to free and fair election. The judgment further clarified that the EC could exercise beyond what is conferred in the conduct of election Act and Rules. Justice VR Krishna Aiyar in Mohinder Singh Gill vs the Chief Election Commission (1978) observed that the EC being the creature of the Constitution cannot be restrictive as the Commission has to address infinite challenges that may emerge from time to time in such a large democracy as ours. Hon’ble Justice observed “the Chief Election Commission has not to fold his hands and pray to God for divine inspiration” or to look to any external authority for the grant of powers to deal with the situation.

The recent communication of ECI dated 11.4.2014 on the compliance of Election Code of Conduct is only a repeat of earlier advice given to State administration and election machinery. It is totally inadequate to curb the growing defiance of model code of conduct. The apex court disturbed with hate speech has asked in March 2014 the Law Commission to define the expression “hate speech” and make recommendations to Parliament to strengthen the ECI to curb the menace of hate speeches.

We need to pause and question if India of 2014 and beyond should permit hijacking of growth and developmental agenda in favour of social and religious hatred thus seeking mass conduct based on social and religious belief. BJP has committed “any activity which disrupts the integrity of the nation cannot be in the interest of any segment of the society or any religion of the country…” The Indian National Congress believes that economic growth and communal harmony and economic growth and social justice must always go hand in hand with assurance for equity and opportunity to all. The big question is the role of the parties in ensuring minimum decorum during the campaign period. Do the parties have any compunction to withdraw the candidates who are openly in defiance of electoral code. Why can’t the political parties withdraw the symbol given to the candidate if there is an impartial determination by the Election Commission that the candidate concerned has grossly violated the election code of conduct! “Winnability “consideration alone without caring for the criminal antecedents of the candidate or his offending behavior promoting social disharmony will endanger democracy in the long run.

Given the wide powers both defined and undefined, the Election Commission can direct political parties to withdraw candidates who vitiate the atmosphere after specific warning. It can even direct State Governments to detain such a person. Filing of FIR against any person assessed guilty of vitiating the atmosphere is grossly ineffective, as such FIRs don’t reach any conclusion in terms of penal sentencing and remain only a proforma threat. The Election Commission can also require the political party to ensure compliance of the election code of conduct from those who are allotted party symbols. Non-compliance should lead to withdrawal of symbol. Under exceptional circumstances even the countermanding of election would be justified in the larger interest of our democratic process.

ECI cannot be a passive spectator to fast spreading inflammatory and provocative speeches. Mere warning to the violator of election code or placing a ban on electoral canvassing is grossly inadequate to effect course corrections. There is a wide belief that the ECI while being successful in organizing elections has not come with heavy hand against those who are challenging the very essence of Indian democracy. India of today requires a very vigilant EC who can exercise its powers pro-actively.

By (N. Misra is retired Secretary to the Government of India
E-mail: nmisra@rediffmail.com

(This article was published in Mail Online India on 29 April, 2014 )

Aam Aadmi Party Manifesto Sans Accountability

Hon’ble Supreme Court in July 2013 observed that freebies promised by various political parties in their election manifestos shake the roots of free and fair poll. The apex court further directed that the Election Commission should frame guidelines for regulating contents of election manifestos. In compliance of the directive, the Election Commission of India (ECI) issued guidelines under Article 324 of the Constitution. ECI consulted the political parties before guidelines were issued and its highlighted “In the interest of transparency, level playing field and credibility of promises, it is expected that manifestoes also reflect the rationale for the promises and broadly indicate the ways and means to meet the financial requirements for it. Trust of voters should be sought only on those promises which are possible to be fulfilled”.

The manifesto released by AAP unfolds the game plan of the Party at first glance. It claims that the Party has arisen from “the struggle of Ramlila Maidan and Jantar Manter”. It plans to “re-write the politics of this country”. Alas! the Anna agitation at Ramlila Maidan which is being claimed as the foundation was given up when Kejriwal decided to enter the elective politics. Anna had not approved the goal of seeking power. His vision is to work as a watchdog for enforcing high morals and curbing the evils of the political system. The party’s claim to re-write the politics of the country is also questionable. A constitutional authority resorting to dharna in front of Rail Bhawan for condoning the misdeeds of Delhi Law Minister would certainly not have the credentials for re-writing the politics, but the flavor is more of anarchy than establishment of the democratic, constitutional and law abiding framework. The litmus test of the manifesto is of the competitive populism. The Party which has not yet gained the recognition of a regional or national party is aspiring to form a national government without any commitment to accountability. It promises “Swaraj” and describes the Lokpal bill passed by the Parliament as “Toothless”. If the provisions are analysed in depth, the Act as passed by the Parliament, if implemented with honest intent, can be a very powerful instrument to curb corruption. AAP manifesto promises that “Any public official found guilty of corruption would be sentenced to prison” and his property will be confiscated. Such a draconian provision has to be tempered with the rule of law. It must also discriminate between the corruption of an ordinary postman with the corruption of public authorities plundering state assets. The manifesto promises a grievance redressal mechanism of citizens charter. It is oblivious of the fact that 19 States have already passed relevant Acts for the delivery of time bound services. The learning from the state Act has been totally ignored while promising the citizens charter.

The dream for “Swaraj” has been promised to the citizens in a very light and half-hearted manner. There is a mention for devolution of “untied” funds to gram sabha and mohalla sabha. It ignores the fact that there is already Finance Commission at the Central level and at the State level which determines the transfer of funds. The challenge is to integrate the local projects with the district development plan as a durable assets. Unplanned expenditure would only encourage corruption and favouritism. The nation is fully conversant with the misuse of local developments funds given to parliamentarians and state legislators. The ‘Swaraj’ of Kejriwal even envisages mandatory consultation of gram sabhas before legislating on specified subjects. Legislation is a complicated exercise. It is already time consuming and lengthy in processing. Given the specified tenure of Assembly and Parliament, it would bring the legislative task to a halt if implemented in the manner promised in the manifesto. Another aspect of Swaraj is setting up fast track courts at all levels of judiciary. Does it mean that there would be two sets of judicial process adjudicating on different crimes? While fast track court for specific crimes at a trial stage may be justified, it would be a negation of judicial process if such courts are encouraged at all levels of judiciary.

The manifesto of AAP also promises far reaching measures requiring constitutional amendment. The legislation to rein in political parties, proportional representation for elective success, provision of right to “reject” and right to “recall” and reduction in the age for elective positions from 25 to 21 years would require deeper examination and constitutional amendment. It only establishes that the Party had decided to promise everything to all citizens without any sense of accountability.

The manifesto has also promised minimum support prices which would be 50% more than the real input cost. Such MSPs would be announced for 25 crops with an element of direct procurement and timely market intervention. Evidently, it has overlooked the impact on cropping pattern, market surplus, warehousing and strain on government exchequer while making the promise. There are also issues of commitment given in World Trade Organisation where India has been demanding reduction in agricultural subsidy by the developed countries. Once again, it reflects a gross ignorance and an attempt to accomplish in a hurry. Another important missing link is the labour laws. While the contractualization of jobs has been banned in the manifesto, there is no consideration given to the impact on employment generation when rigid labour laws are enforced. It also affects the investment climate and the competitiveness of Indian products.

The commitment on defence and foreign policy at best is peripheral. The dream promised for Kashmir appears different than what is available to other States. How do we then declare Kashmir as “an integral part of India?’ Any decentralization and devolution of power has to be uniformly implemented within the overall framework of federal system. In the area of defence, the issues of technological modernization, self-dependency and self-sufficiency have been given a short-shift. While no one would have any trouble with the indigenous production, there is always a challenge to obtain the most advanced technology in any strategy for national security.

It is evident that the Party has released manifesto in a great hurry. While promising a national election manifesto, it has only dealt with the state of Delhi. In their vision for security and non-discrimination for Muslims, the manifesto reads “we are committed to improving the quality of education in government schools across Delhi”. Certainly, the challenge of non-discrimination for Muslims cannot be dealt by a narrow vision of educational facilities in Delhi alone. The manifesto lacks credibility, transparency and offers nothing in the name of rationale for the promises and the ways and means of financial requirement to deliver the dream. Perhaps, the Party was aware of the fact that it may not have a role in governance in May 2014.

By (N. Misra is ex-Chairman, TRAI and Director, Public Interest Foundation
Email: director@publicinterestfoundation.com)

(This article was published in Dainik Bhaskar on July, 2013)

Mired in delays: Electoral Offences & Petitions

Electoral reform is a long standing demand that the Government seems to be dragging its feet on.  There have been a number of highly valued recommendations on electoral reforms like the Law Commission’s 170th Report of 1999, recommendations from the National Commission to Review the Working of the Constitution of 2002, Election Commission’s recommendations on the electoral reforms of 2004 and the recommendations of Second Administrative Reforms Commission of 2008.

The point of reference here is the gross indifference to the compliance of the existing provisions of the Representation of the People Act, 1951 (RPA).  While giving  the benefit of doubt that adoption of any new significant steps towards electoral reforms would have to take the legislative route, how do we explain the non-compliance on significant steps  of electoral process that already form a distinct part of the RPA, 1951.  The provisions relating to election petition are detailed in RPA , 1951 [Chapter I of Part VI] section 79 to 100 and electoral offences have been dealt with in Chapter III from section 125 to 136.

Election petitions have to be expeditiously concluded within six months of filing, to be tried on a day-to-day basis until concluded.  The section also prescribes that the petition has to be filed within 45 days of the election.  The exact wording of the relevant section from RPA, 1951 is:

“Section 81: Presentation of petitions – (1) An election petition calling in question any election may be presented on one or more of the grounds specified in by any candidate at such election or any elector [within forty-five days from, but not earliest than the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates].

Section 86(6) – The trial of an election petition shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded.

(7) – Every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial.”

While the term of the present Parliament would conclude in May 2014, approximately 61 election petitions from General Election 2009 are pending at various stages of disposal despite clear laying down of norms on conclusion of trial within six months from the date the petition is presented to the High Court.  The pending petitions in the States are: Andhra (1), Assam (1), Bihar (4), Chhattisgarh (4), Gujarat (4), Karnataka (4), Kerala (3), Madhya Pradesh (5), Maharashtra (12), Punjab (2), Rajasthan (3), Tamil Nadu (1), Uttar Pradesh (13), other States (5).  Except for the petition from Assam which is pending at the level of Supreme Court, all other petitions are still under trial at the level of High Court.

The provision of election petition is to ensure compliance to set election rules as well as execute exemplary punishment for non-compliance to act as deterrent for contestants of the following elections. But if the cases are dragged for more than four years and the term of the Parliament is getting over,  then the entire objective of laying down such clear rules and laws on this very critical issue has proven to be in vain.

The trial of cases relating to offences and corrupt practices in connection with the elections also presents the same dismal picture.  The recent report of Association for Democratic Reforms (ADR) brings out that 30 sitting MPs and 129 sitting MLAs have declared in their affidavits the cases relating to “offences and corrupt practices in connection with elections”.  The list is not exhaustive as it mainly covers the states of Bihar, UP and Karnataka.  But the trend is very discernible.  The electoral offences relate to corrupt practices during election period, threat and inducement of voters, rigging attempts at the polling stations and denial of the right to vote.  These cases are still pending under the various stages of trial since 2008, and the candidates accused are not likely to incur any disqualification from contesting in future.

Public Interest Foundation, a NGO, informally ascertained the status from the Election Commission.  They do not have any record regarding the pendency of such cases in various courts.  Most of the violations are under statues/Acts attracting penal provisions and are mainly pursued by enforcement agencies like police etc.  Under these circumstances, it is a matter of great concern that the candidates with electoral offences facing charges in various courts are able to contest election as the act of committing offence has not been adjudicated within a reasonable time.

The demand for electoral reforms is premised on the fact that the compliance of legislation and rules would be automatic.  But, given the case of clear non-adherence to existing act and rules, one is not very sanguine if the new set of reforms with the backing of the statute will achieve the course correction of the Indian electoral process.

The failure on compliance of such crucial steps of electoral process like timely adjudication of election petitions and cases relating to electoral offences has important learning to offer for our future agenda on electoral reforms.  Merely laws and rules are not sufficient without any effective internal built-in checks.  It has to be ensured that the compliance of rules and laws is weaved into the system by strengthening the office of Chief Election Commissioner.  This institution has served Indian democracy well in past and it can ensure that such non-compliance does not go undetected and unchecked.

N. Misra is ex-Chairman, TRAI and Director, Public Interest Foundation & Tannu Singh is Research Associate

(This article was published in Business Standard on 11th Jan, 2014 and Dainik Jagran on 12th Jan, 2014)

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)