NCPRI’s demands related to issues of
transparency and accountability
1.
Strengthen the implementation of the Right to
Information Act & drop proposed regressive amendments
Strengthen the implementation of
the RTI Act by ensuring:
a. Timely and transparent appointment of information commissioners: Information commissions have been
set up under the RTI Act at the centre and in the states to be the final
adjudicators under the RTI Act. National assessments have shown that
governments are trying to undermine commissions by not making appointments and
filling vacancies, despite large backlogs of cases. As a result, in some
commissions it takes several months or even years for appeals/complaints to be
disposed, thereby hindering peoples’ right to information. A specific executive
direction must be put in place mandating that 3 months before the occurrence of
a routine vacancy, the selection process is initiated to ensure timely
appointments of commissioners. Further, specific provisions must be adopted to
ensure transparency in appointments, including publishing advertisements in
newspapers to invite applications, making public the criteria and the
short-listed candidates and also recording the specific facts of selected
candidates to indicate how they meet the qualifications laid down in the Act.
b. Effective proactive disclosure of information: Section 4
of the RTI Act mandates each public authority to proactively disclose
information in the public domain. It is one of the most crucial provisions of
the law. However, assessments have shown that it is not being properly
implemented. A recent assessment by the CIC of proactive disclosures under
section 4 showed that most central ministries, failed to meet their obligations
under section 4. A serious and sustained effort is required to systematically
improve implementation of section 4 and to ensure that records required by law
to be publicly displayed are so displayed. A taskforce with representation of
government officials and civil society must be set up to advise and monitor
proactive disclosures. Further, the head of department of each public authority
must be made responsible for ensuring implementation of section 4 of the RTI
Act. Finally, the recommendations of the taskforce set up by the DOPT in 2011
on proactive disclosures must be implemented in a time-bound manner. All records subject to section 8
should be proactively disclosed (as also mandated/s4)
c. Transparency in political party funding: In a landmark decision in 2013,
the CIC held 6 national political parties to be public authorities under the
RTI Act. Whereas the order has not been set aside by any court, political
parties have failed to comply with it. In fact, greater secrecy in the funding
of political parties has been infused, and peoples’ fundamental right to know
who funds parties has been totally emasculated through the introduction of
electoral bonds. It is a well-known fact that funding of political parties is
inextricably linked to corruption in India and a corruption free society is not
possible unless there is complete transparency in political party funding.
Parties must comply with the directions of the CIC and the scheme of electoral
bonds must be immediately withdrawn. All sources of income of political
parties, by any means, must be publicly disclosed.
d. Transparency in the functioning of the private sector: With increasing privatisation,
including privatization of provision of essential services, there is a need to
ensure transparency of private bodies. Under section 2(f) of the RTI Act, any
citizen can access information about a private body which can be accessed by a
public authority under any other law. However, this section is seldom used. No
rules/guidelines have been put in place to operationalise it effectively.
Therefore, appropriate rules pertaining to accessing information about private
bodies under section 2(f), to specify the obligations of private bodies under
the RTI Act and to clarify the procedure to be adopted by PAs in accessing and
providing such information to the applicants, must be put in place.
e. No regressive amendments to the RTI Act, 2005:
·
The government has proposed amendments to the RTI Act
to empower the central government to decide the tenure and salaries of
information commissioners. The proposed amendments will undermine the
independence of information commissions (the final adjudicators under the Act)
by empowering the central government to decide the tenure, salaries and terms
of service of all information commissioners in the country. These amendments
must be dropped.
·
The Justice Srikrishna Committee,
tasked with drafting the Data Protection Bill, was expected to develop a
framework harmonizing the need to protect certain kinds of personal data with
the provisions of the Right to Information Act, 2005, which lays out the
statutory framework for Indian citizens to access information, including
personal information. If accepted, the amendments proposed to the RTI Act
through the DPB will severely restrict the scope of the RTI Act and adversely
impact the ability of people to access information. The amendments seek to
expand the scope of section 8(1)(j) which exempts disclosure of personal
information under the law. Further, the definition of the term “harm” which is
sought to be applied to section 8 of the RTI law, is extremely broad and would
have a chilling effect on the RTI Act. Therefore the proposed amendments must
not be accepted.
2.
Set up independent & empowered
institutions (Lokpal at the Centre & Lokayuktas in states) to look into
cases of corruption
a.
Set
up the Lokpal by appointing the Chair and members of the Lokpal in a
transparent manner, in keeping with the letter and spirit of the Lokpal Act.
The selection committee must include the Leader of Opposition to prevent a
preponderance of government functionaries on the committee, which would
compromise the selection process and therefore the independent functioning of
the Lokpal. Like the provision in the CVC Act, RTI Act and DPSE Act, a
provision needs to inserted in the Lokpal Act, to provide that in the absence
of a recognised leader of opposition, the leader of the single largest party in
opposition in the Lok Sabha, will be included in the selection committee.
b.
Amend the Act to address the following issues:
-Restore the original Section 44 of the Lokpal
Act, which required public disclosure of assets and liabilities of public
servants, their spouses and dependent children. This would require a rollback
of the amendments to the Lokpal law made in 2016.
-Provide for setting up Lokayuktas in all the
states of the country to look into cases of corruption against state level
functionaries, with corresponding structure, powers, independence and framework
as provided for the Lokpal in the Act.
-Remove functionaries of non-government
organisations, which are not substantially funded or owned/controlled by the
government (lakhs across the country), from the definition of public servants
covered under the Lokpal Act. The Lokpal is envisaged as a specialised agency
to look into cases of corruption by high ranking functionaries of the
government. Burdening it with complaints against NGO functionaries would dilute
the mandate of the Lokpal and render it ineffective.
-Ensure that administrative control of the
anti-corruption wing of the CBI must vest in the Lokpal. The Lokpal already has
supervisory powers over the CBI in respect of the matters referred to the CBI
by the Lokpal. The Act needs to be amended to extend this control over the
whole anti-corruption function of the CBI.
3.
Operationalise the Whistle Blowers Protection
Act and withdraw proposed regressive amendments
a.
Appropriate
rules need to be promulgated to operationalize the WBP Act. Suggested rules
proposed by the National Campaign for Peoples’ Right to Information (NCPRI) are
attached as Annex 1.
·
The WBP Amendment
Bill 2015 which is currently pending in the Rajya Sabha must be withdrawn as it
seeks to severely dilute the provisions of the law by removing safeguards
available to whistleblowers from prosecution under the Official Secrets Act and
restricting issues on which whistleblowers can file complaints.
·
Notify as nodal
agencies, those institutions that are empowered under different laws to act on
complaints of corruption, for instance the Lokpal for ministers, PM, high
ranking public servants.
·
Central and state
governments, through executive orders, must put in place a mechanism to ensure
that in cases of attacks on information seekers, the information being sought
would be immediately made public and widely disseminated (other than
information which may qualify as exempt from disclosure under the RTI Act).
Wide publicity of such information is the best way to deter attacks on
information seekers.
·
Governments must
also provide for appropriate compensation for whisteblowers/ information
seekers in cases of attacks. In cases of murders, the family must be provided
appropriate compensation.
4.
Provide a decentralised, time-bound and
effective grievance redress mechanism by enacting the Right to Grievance
Redress Bill.
a.
The
Grievance Redressal Bill, 2011 (Right of Citizens for Time Bound Delivery of
Goods and Services and Redressal of their Grievances Bill) which lapsed with
the dissolution of the previous Lok Sabha in 2014, must be re-introduced in Parliament
and passed. It provided for an accessible, decentralized, and responsive system
for time-bound redress of citizens’ grievances. The key elements of the bill
included:
-Setting up a grievance redress mechanism for
the centre and all states.
-Requiring each public authority/service
provider to put forth a clear and tangible statement of obligations, in terms
of its duties, obligations and commitments towards citizens, the services its
obligated to provide (quantitative & qualitative parameters), the roles and
responsibilities of officials, eligibility criteria, timelines etc. and develop
systems to make people aware of these.
-Defining what constitutes a
grievance/complaint in terms of any violation of the statement of obligations,
deficiency in the functioning of a public authority, or failure to provide any
service or obligation in a manner that would be reasonable to expect of the
public authority/office.
-Providing institutional capacity to receive,
enquire into and redress complaints regarding any grievance by designating
officials in supervisory roles as Grievance Redress Officer (GRO) in public
authorities, setting up appropriately empowered and independent Grievance
Redress Commissions at the Centre & state levels with District Grievance Redress
Authorities under their control, to act as appellate bodies.
-Specific time-frames for disposal of
complaints and appeals.
-Setting up information and facilitation
centers to assist people in accessing information about their rights and
entitlements help file and track complaints.
-Mandatory penalties in cases of violation of
the law and compensation for complainants.
-The bill must include mechanisms to ensure transparency,
accessibility and participation in the process of grievance redress through
public hearings, publicly accessible system of tracking each complaint,
automatic escalation of complaint/appeal, mechanism to examine reports of
social audits and vigilance committees to address systemic gaps.
5.
Strengthen the Prevention of Corruption Act by
undoing the regressive amendments made to the law in 2018
The
following amendments are required to the PCA to undo the regressive changes
brought through the 2018 amendments:
a. Removing requirement of prior sanction of
government to enquire into/investigate or prosecute complaints of corruption:
Through the amendments made to the PCA, the government has effectively
reintroduced the infamous single directive, which was struck down by the
Supreme Court. The amended law requires police officers to obtain prior
sanction of government to enquire/investigate complaints of corruption. Such
provisions are most often misused by the government to prevent investigation
into cases of corruption and shield public servants. In order to ensure
independent investigation into cases of corruption, without government
interference, it is critical that investigation agencies be allowed to work
independently, without requiring prior sanction from the government. The power
of deciding whether to proceed with investigation must only vest in bodies
independent of the government, such as the Lokpal or the judiciary. Therefore,
appropriate amendments must be made to the PCA. Similarly, the power to decide
whether to proceed with prosecution must also only vest with these independent
bodies and not with the government.
b. Restoring offence of abuse of position by a
public servant to benefit any person including himself/herself, irrespective of
the element of bribery: This is crucial to deal with corruption in high places,
which may not involve the payment of a bribe as it may be done for other
considerations (pleasing political masters for rewards), or where the
gratification is difficult to trace as it may be deferred (post-retirement
benefits), paid through clandestine means (off-shore accounts), or channelised
through legitimate means (financial benefit for relatives through
contract/business opportunities). As per the amended PCA, abuse of position by
a public servant to benefit any person, would not by itself constitute an
offence unless the element of bribery is established. The omission of the
offence of abuse of position, irrespective of the element of bribery being established,
is a violation of the UNCAC, which has been ratified by India. Therefore, the
PCA must be amended to restore the offence of abuse of position, irrespective
of the element of bribery.
c. Need to provide protection to those who come
forward to report bribery: Collusive bribe giving (giving and accepting a bribe
to improperly perform a public function) is difficult to detect as neither
party comes forward to report the offence (the bribe giver is benefiting from
the improper functioning and the bribe taker has received an undue advantage).
In order to encourage reporting of incidents of bribing, immunity from criminal
prosecution should be provided to bribe givers who come forward with evidence
and cooperate with law enforcement agencies (become approvers etc.). Such
protection was provided by section 24 of the PCA, in line with the provisions
of UNCAC, but now stands deleted as per section 17 of the PC Amendment Act. There
must, however, be recovery of all proceeds obtained through corruption.
d. Restoring offence of public servant obtaining
for any person a gain without public interest: Section 13(1)(d)(iii) of the
PCA, 1988 made it an offence of criminal misconduct if a public servant
obtained a pecuniary advantage for any person without any public interest. This
clause now stands deleted as per the amended act. This particular section was
criticised as not requiring the element of criminal intent (mens rea) and thereby potentially
allowing decisions where an error of judgment may have happened, to be qualified
as a criminal offence with punishment of imprisonment. In fact, this was also
the substance of an appeal to Division
Bench of the Delhi High Court. The court upheld the validity of section
13(1)(d)(iii) and indicated a test to determine the applicability of section
13(1)(d)(iii). The court essentially laid down that a “public servant acts without public interest,
if his action or decision, is by manifestly failing to exercise reasonable
precautions to guard against injury to public interest, which he was bound, at
all times to do, resulting in injury to public interest.” The omission of section 13(1)(d)(iii), without
any alternative being provided will frustrate complaints of corruption related
to high offices, where public servants enjoy significant discretion in decision
making. Causing undue gain to a third party could be achieved by exercising
decision making powers in a manner which harms society and public interest,
without the public servant necessarily abusing his/her power. For instance,
procedures and results of competitive bidding can be easily undermined by not
giving due publicity to call for bids, not adopting any discernible criteria
for short-listing or choosing from among the bidders, tweaking tendering
criteria, all of which could be within the jurisdiction of decision making of
the public servant but would result in undue advantage to a particular party,
and also be without public interest, as the potential benefit from competitive
bids would be eliminated. Therefore, this particular provision must be brought
back by defining it as an offence if a public servant obtains a pecuniary
advantage for any person where there is no possible justification of public
interest or for malafide reasons.
6.
Provide an institutional framework to ensure transparency
and participation of people in the process of drafting and enacting
legislations by passing an appropriate law for Pre-Legislative Consultation
An appropriate legislation defining
the procedure, responsibilities, and mechanisms to provide an effective
framework to ensure transparency and
participation of people in legislative processes needs to be enacted.
The key elements of such a legislation must include:
a.
Requirement of
publishing in the public domain (internet & other means) any proposed legislation
including the rationale, financial implications, social impact etc. for a
pre-defined period.
b.
Mechanism for
holding consultations and receiving comments/feedback which is subsequently
examined, summarised and responded to and made available in the public domain.
c.
Public disclosure
of the revised legislation prior to being sent to the cabinet and public
disclosure of the bill as introduced in Parliament.
d.
Minimal, clearly
defined exemptions, if any, for certain types of legislation to be exempt from
the pre-legislative consultation process
7.
Strengthen independence of institutions of
oversight by appropriately amending the relevant laws to ensure: a balanced
selection committee; transparency in short-listing and selection process; and
mandatory cooling off period post-retirement, including debarment from holding
any government office
Following specific amendments are required for
each of these institutions:
a.
Central Vigilance Commission
-
Amendment of
composition of selection committee to prevent pre-ponderance of government or
its representatives. The selection committee should consist of only the PM,
Leader of Opposition and the CJI (or a nominee thereof).
-
Amendment to the
selection process to include provisions to provide for search committee and
transparency in the process of appointment by publicly disclosing short-listed
candidates etc.
b.
Delhi Special Police Establishment Act (CBI)
-
The anti-corruption
part of the CBI should be exclusively under the superintendence and
administrative control of the Lokpal
-
Greater
insulation, especially for the Director, from the government. Recent events at
the CBI have shown, that despite safeguards against removal and transfer, the
government has used a lacunae to force the CBI Director to proceed on leave.
Any such action must only be with the consent of the selection committee
responsible for selecting the CBI Director.
-
Amendment to the
selection process to include provisions to provide for search committee and
transparency in the process of appointment by publicly disclosing short-listed
candidates etc.
c.
Election Commission of India
-
The Election
Commissioners should be appointed by the President based on recommendations
made by the PM, LOP and CJI (or nominee thereof). Currently the election
commissioners are appointed by the President based on recommendations made only
by the PM
8.
Need for a central Social Audit legislation
a. A Central Social Audit Law should include all
social sector programmes in urban and rural areas within its jurisdiction.
b. Social Audits must be conducted in every State,
through the State Social Audit Unit, in line with the Auditing Standards of
Social Audit laid down by the Office of the Comptroller and Auditor General of
India.
c. Social Audits of
programmes must be completed as per a pre-determined annual calendar such that
citizens and local communities are in the know of when the social audit is
supposed to take place in their respective villages/wards.
d. Social Audits must result in legally sanctioned and
time bound redress of findings and grievances that emanate from social audits
conducted.
e. Social Audit Reports and their corresponding Action
Taken Reports should be submitted to the State Legislature and Comptroller and
Auditor General of India
f.
There
must be an independent organization at the National level to supervise and
mentor the social audit process at the State level, to ensure that social
audits are conducted in an independent manner. The independent organization can
ensure that social audits across programmes are adhering to minimum standards
of audit. The organization is essential as social audits conducted across
programmes exceed the jurisdiction of any one Ministry. Such an organization
can also serve as a Resource Centre to support government, citizens and CSOs in
conducting social audits.
Prepared by NCPRI Team
