Friday, July 19, 2019

NCPRI’s demands related to issues of transparency and accountability


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.
b.The Grievance Redress Bill (which lapsed in 2014) and the report of the Parliamentary Standing Committee can be accessed here: http://164.100.47.5/committee_web/ReportFile/18/18/53_2018_10_14.pdf

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

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