Transparency and Accountability
|Transparency and Accountability|
|RIGHT TO INFORMATION ACT 2005|
“Information is the currency of democracy” – Thomas Jefferson
- The law was passed by Parliament on 15 June 2005 and came fully into force on 12 October 2005.
- Every day, over 4800 RTI applications are filed. In the first ten years of the commencement of the act over 17,500,000 applications had been filed.
- RTI is a fundamental right for every citizen of India. This act was enacted in order to consolidate the fundamental right in the Indian constitution ‘freedom of speech’.
- Since RTI is implicit in the Right to Freedom of Speech and Expression under Article 19 of the Indian Constitution, it is an implied fundamental right.
- Information disclosure in India is restricted by the Official Secrets Act 1923and various other special laws, which the new RTI Act relaxes.
- RTI has proven to be very useful, but is counteracted by the Whistle Blowers Protection Act, 2011.
Salient Features of the RTI Act 2005:
- It provides for the appointment of an information officerin each department to provide information to the public on request.
- It fixes a 30-day deadline for providing information, the deadline is 48 hours if information concerns the life or liberty of a person.
- Information will be free for people below the poverty line. For others, the fee will be reasonable.
- The Act imposes an obligationon public agencies to disclose the information suo-moto to reduce requests for information.
- It provides for the establishment of a Central Information Commission (CIC) and State Information Commissions. They will be independent high-level bodies to act as appellate authorities and vested with the powers of a civil court.
- The jurisdiction of the Commission extends over all Central Public Authorities.
- When it comes to the RTI Act, the CIC is the only appellate authority which may declare a body as public authority if it is convinced that the organization fits into the criteria for being under the RTI Act.
- The Act overrides the Official Secrets Act, 1923.
- The information commissions can allow access to the information if public interest outweighs harm to protected persons.
- Any person who is a citizen of India can file an RTI
- All categories of exempted information to be disclosed after 20 yearsexcept cabinet deliberations and information that affects security, strategic, scientific or economic interests, relations with foreign states or leads to incitement of offence.
Important sections of RTI Act 2005:
|Section 1(2)||It extends to whole of India|
|Section 2(f)||Information means any material in any form and information relating to any private body which can be accessed by a Public Authority under any other law for the time being in force.|
|Section 2(h)||States that “Public authority” means any authority or body or institution of self-government established or constituted –
· by or under constitution;
· by any other law made by parliament or state legislature.
· by notification issued or order made by appropriate government and includes anybody:
a) owned, controlled or substantially financed by the government
b) NGO substantially financed, directly or indirectly by funds provided by the appropriate government.
|Section 4||Suo-moto disclosure of information by each public authority.|
|Section 8||Exemption to certain information:
· National security or sovereignty
· National economic interest
· Relations with foreign states
· Law enforcement and judicial process
· Cabinet and other decision making documents
· Trade secrets and commercial confidentiality
· Individual Safety
· Personal privacy
|Section 8(2)||Provides for disclosure of information exempted under Official Secrets Act 1923 if larger public interest is served.|
Importance of RTI:
- Openness: RTI act promotes openness in the government activities and allows its citizens to know what is going on in the government.
- Transparency: RTI act reduces the gap between government and all stakeholders and it keeps checks on scrupulous activities.
- Trust building: Openness and transparency in the government activities helps in building trust between government and all stakeholders. Thereby it also promotes feeling of ownership among people.
- Accountability: By knowing the activities, decisions of the government people can able to hold the government accountable.
- Low corruption: RTI has created deterrence among public officials because RTI’s reach has been improved due digital revolution, e-governance.
- Promotion of democracy: Under social contract theory, government derives powers from people, thus empowerment of people by giving access to information and helps in strengthening of democracy.
- Ethical government is established because people are made aware of the government activities.
- RTI promotes judicious use of public resources and prevents usurpation of unlimited powers.
Challenges in the implementation of the RTI Act:
- Challenges in the implementation of the RTI Act are mostly two fold-Demand Side and Supply Side.
Demand side challenges:
These challenges include challenges faced by people in filing the RTI application. These include:
- Lack of awareness about the act: The RTI Act was enacted in 2005 but only 2% Indians have filed the RTI application till 2018.
- Psychological barriers: Many people feel hesitant to approach the government to seek the information even if the information is necessary for the daily existence.
- Inability to draft the application: This may sound absurd. But it is a reality that many villagers and tribals do not have ability to draft the application. Also inability to draft the application in a manner such that Public Authority cannot deny it.
- Lack of protection: It has been observed that those who seek information on illegal construction, alleged scams in social welfare schemes and corruption in panchayats have been brutally murdered. Commonwealth Human Initiative observed that around 90 RTI activists have been killed since 2005, 7 activists committed suicide and more than 350 have either faced assault or harassment.
- Misuse of RTI: Many times RTI has been filed to harass or pressurise the public authority.
- Though RTI’s aim is not to create a grievance redressal mechanism, the notices from the Information Commissions often spur the public authorities to redress the grievances.
- The information sought by public is either voluminous or it has no public interest. Such information is requested only for publicity purpose.
Supply side challenges:
These challenges include those challenges faced by the government machinery in supplying information.
- File Maintenance: The records and documents in the government are not properly indexed and catalogued, even digital file maintenance have not been adopted in letter and spirit.
- Training: The staffs are not trained adequately to reply for RTI queries.
- Attitude of secrecy: Colonial attitude of bureaucracy to withhold the information is acting as a barrier.
- Compliance with orders: In case of award of compensation to activists by public authorities as ordered by commission, compliance cannot be secured.
- Dilution of supplementary laws like the whistle blower protection act created fear in the minds of the people.
- Section 8 of the RTI Act allows disclosure of information if the larger public interest is served. But most of the information is not disclosed by keeping it under national security clause of the act. Example-Recently central government refused to disclose the information related to Rafael deal under national security and friendly relations with foreign countries. But Supreme Court directed the government to disclose the information.
- Section 4 of the Act provides for the “Proactive Disclosure of Information” but there is little development in this direction. Thus the act has become demand driven instead of supply driven.
RTI vs Right to Privacy:
- Conceptually, RTI and Right to Privacy are both complimentary as well as in conflict to each other.
- While RTI increases access to information, the right to privacy protects it instead.
- At the same time they both function, as citizen rights safeguarding liberty against state’s overreach.
- In Justice Puttaswamy vs Union of India case, Supreme Court ruled that right to privacy is Fundamental Right under article 14, 19 and 21.
- Thus while disclosing information under RTI act government need to ensure that such information does not harm liberty and dignity of the individuals.
- Such right to privacy is already ensured in many acts such as Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act 2016, Personal Data Protection Bill 2019, DNA Technology (Use and Application) Regulation Bill 2019 etc.
- When the question of harmonising the contradictory rights arises, it should give justice to the larger public interest and advancement of public morality.
Official Secrets Act(OSA) 1923:
Context– The Government of India threatened to invoke the Official Secrets Act and initiate “criminal action” against the publications that had run reports on the Rafael deal.
- The Indian Official Secrets Act 1904 was enacted during the tenure of Viceroy Lord Curzon(from 1899 to 1905).
- The law meant for ensuring secrecy and confidentiality in governance, mostly on national security and espionage issues.
- One of the main purpose of the act was to muzzle the voice of nationalist publications.
- The Indian Official Secrets Act (Act No. XIX of 1923) replaced the earlier act and it was extended to all matters of secrecy and confidentiality in governance in the country.
RTI vs Official Secrets Act (OSA) 1923:
- Whenever there is conflict between the two laws the provisions of the RTI Act overrides those of OSA.
- Section 22 of the RTI Act states that its provisions will have effect notwithstanding anything that is inconsistent with them in the OSA.
- Under Section 8(2) of the RTI Act, a public authority may allow access to information covered under the OSA, “if the public interest in disclosure outweighs the harm to the protected interests”.
Recent judgements related to RTI:
RTI vs Judiciary –
- In the Central public information officer, Supreme Court of India vs Subhash Chandra Agarwal case a five-judge Constitution Bench of Supreme Court (SC) declared that the Office of the Chief Justice of India (CJI) is a ‘public authority’ under Section 2(h) of RTI Act.
|Information can be disclosed||Information cannot be disclosed|
|Information about personal assets of CJI and judges is not a violation of their right to privacy.||Reasons cited by collegium for the recommendation of judges|
|Names of judges recommended by collegium.||Information protected under Section 8 of the RTI Act.|
- The RTI Act conferred powers on the Chief justice of the Supreme Court of India and the chief justices of high courts of states for carrying out its provisions, and all these courts framed their own rules.
- However, the Supreme Court Rules undermined the RTI in four key ways. Unlike the RTI Act, the Rules do not provide for:
- Time frame for furnishing information
- An appeal mechanism
- Penalties for delays or wrongful refusal of information
- Makes disclosures to citizens contingent upon “good cause shown”
- The RTI Act does not permit any appeals to be entertained by any court under Section 23. Nevertheless, the contradiction arises from the fact that the Indian Constitution gives powers to the Supreme Court and the high courts that override any statute.
- Further, SC has said that the decision of the Registrar General of the Court will be final and not subject to any independent appeal to the Central Information Commission.
JAN SOOCHNA PORTAL
- Recently, Jan Soochana Portal was launched by the Rajasthan State Government.
- The portal has been developed by the Department of Information Technology and Communication (DoIT&C) in collaboration with civil society and other stakeholders.
- It is the first of its kind system in the country and has 48 information about 23 government schemes and services from 13 departments on a single platform.
- The initiative is inspired by the spirit of Section 4 (2) of Right to Information Act, 2005, i.e. Proactive Disclosure of Information.
RTI vs NGOs:
- In D.A.V. College Trust and Management Society Vs. Director of Public Instructions case Supreme Court ruling has brought NGOs receiving funds from the governments under the ambit of RTI Act.
What does the Supreme Court said–
- Trusts and NGOs “substantially funded” the government will be considered “public authorities” under the RTI Act.
- Whether an NGO/trust enjoys “substantial government financing” will be examined on a case by case basis.
- Substantial funding can be in both direct and indirect ways.
- Substantial funding does not necessarily have to be in the form of financial aid or be more than 50% of the funding.
- While determining substantial funding, the current value of the land also have to be evaluated.
- Currently, NGOs are regulated under the provisions of Foreign Contribution Regulation Act (FCRA) and Foreign Exchange Management Act (FEMA Act).
- This ruling would mean that NGOs will have to maintain records as provided under the RTI Act, and every citizen will have the right to get information from them.
BCCI as Public Authority:
- Central Information Commission affirms the Board of Control for Cricket in India (BCCI) is covered under the RTI Act and answerable to the people of the country.
- After going through the orders of the Supreme Court, the Law Commission of India report, submissions of the Central Public Information Officer in the Ministry of Youth Affairs and Sports, the Commission has concluded that the status, nature and functional characteristics of the BCCI fulfil required conditions to come under the ambit of RTI Act.
- Section 2(h) of the Actdefines criteria under which a body can be declared as public authority under the RTI Act.
- This represents a broader and more contemporary view of the jurisprudencebacking the application of public laws to prima facie ‘private’ bodies in sport.
RTI and Public Private Partnerships (PPP):
In 2013, Department of Personnel and Training has issued memorandum regarding projects under Public Private Partnership(PPP):
- Information regarding procurement by public authority should be made public.
- All information regarding PPP should be disclosed in public domain.
- Details of SPVs, detailed project reports, concession agreements under PPP model should be made available under RTI Act.
- Process of selection of private party should be proactively disclosed.
The Right to Information Rating is a programme founded by Access Info Europe (AIE) and the Centre for Law and Democracy (CLD) and is conducted by Transparency International.
Political Parties Under RTI Act, 2005
- The PIL was filed in the Supreme court arguing that political parties registered with Election Commission to be brought under section 29A of Representation of People Act, 1951 to be declared as ‘public authority’ under the RTI Act, 2005
- Six national parties – the BJP, the Congress, the BSP, the NCP, the CPI and the CPI(M) were brought under the ambit of the RTI Act by a full bench of the Central Information Commission in 2013. (Trinamool Congress was also recognised as the seventh national party in 2016). However, the political parties have refused to entertain the RTI applications directed at them.
- Several activists have approached the Supreme Court on the grounds of non-compliance of the CIC order and the matter is pending.
Argument in Favour:
- Need to ensure Transparency in Funding
- Sprouting and deepening of crony capitalism in political discourse.
- Black money – According to ADR, 34% of the donations have been received with no address or any other detail of the donor
- Illicit foreign contributions – National parties have been accepting foreign contributions despite The Foreign Contribution (Regulation) Act (FCRA), 1976.
- Political parties are vital organs of the State – According to CIC, critical role played by these political parties point towards their public character.
- Political parties are public authorities – The CIC held that political parties enjoy various benefits directly or indirectly like land for offices of political parties on concessional rates, allotment of free time on Doordarshan/All India Radio and supplying electoral roll copies free of cost during elections
- Larger Public Interest – The disclosure of the information is in larger public interest.
- 170th report of the Law Commission of India on reform of the electoral laws recommended to introduce internal democracy, financial transparency and accountability in the working of the political parties.
- Obstruct party functioning – Political parties cannot disclose their internal functioning and financial information under the Act as it will hamper their smooth functioning.
- RTI can be a tool of misuse – RTI can become a weak spot and rivals with malicious intentions may take advantage of RTI.
- Not ‘public authorities’ – Political parties are not established or constituted by or under the Constitution or by any other law made by Parliament. Even the registration of a political party under the 1951 Act was not the same as establishment of a government body.
- Transparency provisions for parties already exist in the Income Tax Act, 1961, and Representation of the People Act, 1951, which demand “necessary transparency regarding financial aspects of political parties.
- Information in public domain – Government holds the view that required information about a political body is already in the public domain on the website of the Election Commission.
- Not envisaged in the RTI Act – According to the Department of Personnel and Training (DoPT) when the RTI Act was enacted, it was never visualised that political parties would be brought within the ambit of the transparency law.
Considering the role played by the political parties in our democracy, it is important that their working be transparent in such a manner that induces trust in the whole election process. Given the fact that existing laws have not performed upto the mark in regulating the working of political parties, bringing them under the RTI with certain safeguards seems to be a logical step.
- Money should not be given to political parties as this creates a nexus between the funders and the political parties, thus affecting policy formulation in the country. Instead, a National Election Fund should be created for receiving donations from people.
- Eliminating the root cause of the requirement of money, i.e. banning election rallies and roadshows, but direct connect with people needs to be ensured. Replacing them by live T.V. Debates are an option.
- The ‘First Past the Post System’,in which a person with the highest votes (even with one extra vote) is declared winner, should be changed. Rather, a minimum percentage of total votes polled, should be fixed for declaring a candidate winner.
- Flow of black money into the election process needs to be taken care of.
Success stories of RTI:
- Pune Municipal Corporation has designated one day in a week when all files are put up for public inspection.
- Puroby Kotoky, widow of Madhob Kotoky, filed RTI application to Directorate of Health Services seeking information as to the status of medical bills submitted for reimbursement for her husband’s treatment. It was not answered. Finally, State Information Commission, Assam stepped in and ordered that medical bills be paid along with interest.
- Manoj, a class 5 student of Velpur of Telangana filed an RTI application to Labour Department seeking information about the reasons for not releasing his scholarship. His scholarship was released!
- Mala Buchan village in Jammu Kashmir frequently faced tank bund breach and resultant inundation. Repeated petitions by villagers did not get the tank bund repaired. Irfan Banaka filed an RTI application with Irrigation Department seeking information as to why the tank bund is not being repaired. The very night the tank bund was repaired.
- Houses under Indira Awas Yojana were sanctioned for a few APL families as well in Kendarapara district of Odisha. Sakunta Dwivedy, an aggrieved beneficiary, filed an RTI application seeking information about the list of beneficiaries and other documents. The documents were enough to prove the embezzlement.
Ways to Strengthen Information Institutions:
- Proactive Information Disclosure-Government should disclose as much information as possible proactively to the public. Putting all the acts, rules, circulars and other related issues on the website, so that people need not have to receive the same by filing an RTI application.
- Access to Files: Public files like formation of roads, schools, selection of beneficiaries and so on should be accessible to people without any hassles.
- Information Day: Dedicate a particular day in a week or month as “Information Day” and let people access these files and verify the records as per his/her wishes.
- Public Awareness: Looking at the diversity of the country government needs to formulate different strategies for different sections of the society to generate awareness. These strategies may include- include topics on RTI in school syllabus, create WhatsApp messages on RTI and share across various groups, create short movies on RTI and share it on YouTube, RTI banners in public transport, creating interesting jingles on RTI and air the same on FM.
- Dedicated RTI Section: Government should create dedicated RTI cell in the office with staff tasked with the sole responsibility of providing timely and quality responses to RTI petitions.
- e-RTI: In the world of e-governance, it is better to create a web portal wherein application of RTI and delivery of information is processed through online mode.
- Reduce Pendency: Go begin with, government should take steps to reduce pendency of cases. Nearly 2.2 lakh cases are pending at the central and state level.
- Fill the vacancies: In 2019 there were 31% State Information Commissions functioning without a Chief Information Commissioner. Even the Central Information Commission functioned without Chief Information Commissioner between April 2019 to July 2020.
- Exemption list: Section 8 of the Act lists ten various types of exemptions. But Section 24 the Act allows the Government to increase the list of exemptions through executive orders. This needs to be done through act of the legislature.
- Protect Whistle-blowers: Since 2005, 90 RTI activists have been killed and 7 committed suicide. The central government needs to enforce the Whistle-blowers Protection Act 2014 in letter and spirit.
- Constitutional Status: As RTI is safeguarding a fundamental right guaranteed under Article 19(1)(a) of the Constitution. Thus government should seriously look into the possibility of elevating the information commission to the status of constitutional authority.
- Political parties under RTI: In 2013, CIC had declared six national parties as public authorities under RTI Act and ordered them to make voluntary disclosures and respond to information requests. However all parties declined to comply with the decision, prompting the petitioners in the case to approach the Supreme Court in 2015, which is still hearing the case.
Right to Information(Amendment) Act 2019:
- The Act amends Sections 13 and 16 of the RTI Act 2005. These sections deal with term and salaries, allowances and other term of services of Chief Information Commissioner and other Information Commissioners at the central and state level respectively.
- Comparison of the provisions of the RTI Act 2005 and RTI(Amendment)Act 2019 are given below.
|Provisions||RTI Act 2005||RTI (Amendment) Act 2019|
|Term||The Chief Information Commissioner (CIC) and Information Commissioners (ICs) (at the central and state level) will hold office for a term of five years.||The Bill removes this provision and states that the central government will notify the term of office for the CIC and the ICs.|
|Salary||The salary of the CIC and ICs (at the central level) will be equivalent to the salary paid to the Chief Election Commissioner and Election Commissioners, respectively.
Similarly, the salary of the CIC and ICs (at the state level) will be equivalent to the salary paid to the Election Commissioners and the Chief Secretary to the state government, respectively.
|The Bill removes these provisions and states that the salaries, allowances, and other terms and conditions of service of the central and state CIC and ICs will be determined by the central government.
|Deductions in salary||The Act states that at the time of the appointment of the CIC and ICs (at the central and state level), if they are receiving pension or any other retirement benefits for previous government service, their salaries will be reduced by an amount equal to the pension.
Previous government service includes service under: (i) the central government, (ii) state government, (iii) corporation established under a central or state law, and (iv) company owned or controlled by the central or state government.
|The Bill removes these provisions.
Issues with the Amendment:
- These amendments will lead to the dismantling of transparency architecture as these empower the central government to unilaterally decide the tenure, salary, allowances and other terms of services of information commissioners (both at the centre and states).
- These amendments fundamentally weaken an important part of RTI architecture.
- These violate the constitutional principles of federalism, undermine the independence of Information Commissions and thereby significantly dilute the widely used framework for transparency in India.
- The commission which is vested by law with status, independence and authority will now function as a department of the government.
- Independent structures set up to regulate and monitor the government are vital to a democratic state committed to deliver justice and constitutional guarantees.
- The separation of power is a concept which underscores this independence and is vital to our democratic checks and balances.
- So when power is centralised, the freedom of expression is threatened which can lead to decline of democracy.
|CENTRAL VIGILANCE COMMISSION (CVC)|
- CVC are conceived to be the apex vigilance institution, free of control from any executive authority, monitoring all vigilance activity under the Central Government and advising various authorities in Central Government organizations in planning, executing, reviewing and reforming their vigilant work.
- The Central Vigilance Commission was set up by the Government in February,1964 by executive resolution on the recommendations of the Committee on Prevention of Corruption, headed by Shri K. Santhanam, to advise and guide Central Government agencies in the field of vigilance.
- In September 2003, the Commission was accorded the status of independent statutory authority through the Central Vigilance Commission Act, 2003.
- As the apex integrity institution, the Commission is mandated to fight corruption and to ensure integrity in public administration.
- To promote integrity in the governance processes by:
- Creation of a credible deterrence against corruption through prompt enforcement of anti-corruption laws and regulations
- Undertaking effective preventive measures to minimise the scope of corruption.
- Raising public awareness to inculcate ethical values and reduce society’s tolerance towards corruption.
- The Commission shall consist of:
- A Central Vigilance Commissioner – Chairperson;
- Not more than two Vigilance Commissioners – Members.
- The Central Vigilance Commissioner and the Vigilance Commissioners shall be appointed by the President on recommendation of a Committee consisting of the Prime Minister (Chairperson), the Minister of home affairs (Member) and the Leader of the Opposition in the House of the People.
- Hold office for a term of 4 yearsor until they attain the age of 65 years, whichever is earlier.
- Central Vigilance Commissioner and the Vigilance Commissioners are not eligible for reappointment.
- The salary, allowances and other service conditions of the Chief Vigilance Commissioner are similar to those of the Chairman of UPSC and that of the Vigilance Commissioner are similar to those of the Chairman of UPSC. However, they cannot be varied to his disadvantage during service.
- The Central Vigilance Commissioner or any Vigilance Commissioner can be removed from his office only by order of the President on the ground of proved misbehaviour or incapacity after the Supreme Court, on a reference made to it by the President, has, on inquiry, reported that the Central Vigilance Commissioner or any Vigilance Commissioner, as the case may be, ought to be removed.
- The President may suspend from office, and if deem necessary prohibit also from attending the office during inquiry, the Central Vigilance Commissioner or any Vigilance Commissioner in respect of whom a reference has been made to the Supreme Court until the President has passed orders on receipt of the report of the Supreme Court on such reference.
- The President may, by order, remove from office the Central Vigilance Commissioner or any Vigilance Commissioner if the Central Vigilance Commissioner or such Vigilance Commissioner, as the case may be:
- Adjudged an insolvent; or
- Has been convicted of an offence which, in the opinion of the Central Government, involves moral turpitude; or
- Engages during his term of office in any paid employment outside the duties of his office; or
- is, in the opinion of the President, unfit to continue in office by reason of infirmity of mind or body; or
- Has acquired such financial or other interest as is likely to affect prejudicially his functions as a Central Vigilance Commissioner or a Vigilance Commissioner.
Roles & Functions
- Exercise superintendence over the functioning of the Delhi Special Police Establishment (CBI) insofar as it relates to the investigation of offences under the Prevention of Corruption Act, 1988; or an offence under the Cr.PC for certain categories of public servants.
- Give directions to the Delhi Special Police Establishment (CBI) for superintendence insofar as it relates to the investigation of offences under the Prevention of Corruption Act, 1988.
- To inquire or cause an inquiry or investigation to be made on a reference by the Central Government .
- To inquire or cause an inquiry or investigation to be made into any complaint received against any official belonging to such category of officials specified.
- Review the progress of investigations conducted by the DSPE into offences alleged to have been committed under the Prevention of Corruption Act, 1988 or an offence under the Cr.PC.
- Review the progress of the applications pending with the competent authorities for sanction of prosecution under the Prevention of Corruption Act, 1988.
- Tender advice to the Central Government and its organizations on such matters as may be referred to it by them.
- Exercise superintendence over the vigilance administrations of the various Central Government Ministries, Departments and Organizations of the Central Government.
- Shall have all the powers of a Civil court while conducting any inquiry.
- Respond to Central Government on mandatory consultation with the Commission before making any rules or regulations governing the vigilance or disciplinary matters relating to the persons appointed to the public services and posts in connection with the affairs of the Union or to members of the All India Services.
- The Central Vigilance Commissioner (CVC) is the Chairperson and the Vigilance Commissioners (Members) of the Committee, on whose recommendations, the Central Government appoints the Director of Enforcement.
- The Committee concerned with the appointment of the Director of Enforcement is also empowered to recommend, after consultation with the Director of Enforcement appointment of officers to the posts of the level of Deputy Director and above in the Directorate of Enforcement.
- The Central Vigilance Commissioner (CVC) is also the Chairperson and the Vigilance Commissioners (Members) of the Committee empowered to recommend after consultation with the Director (CBI), appointment of officers to the post about the level of SP and above except Director and also recommend the extension or curtailment of tenure of such officers in the DSPE (CBI).
Santhanam Committee Report (1964) observed:
“Corruption cannot be eliminated or even significantly reduced unless preventive measures are planned and implemented in a sustained and effective manner. Preventive action must include administrative, legal, social, economic and educative measures”.
- Preventive vigilance works on the “principle of Catch them before they hatch”.
- It consists of certain practices which attempts to eliminate/reduce corruption in an organisation rather than treating it after the act has taken place.
- Thus, it follows the “aspect of Prevention”rather than “curing the disease”.
Preventive Vigilance Measures Help in Many Ways:
- It helps in detecting corruption at a nascent stage.
- Upholds the spirit of a corrupt free environment among the employees.
- Reduces pilferage of public money.
- Increases the efficiency of governance.
Major causes of corruption – The Santhanam Committee Report (1964):
- Administrative delays
- Government taking upon itself more than what it could manage by way of regulatory functions
- Scope for personal discretion in the exercise of powers vested in different categories of government servants
- Cumbersome procedures in dealing with various matters which were of importance to citizens in their day to day affairs.
Potential areas of corruption:
Though potential areas of corruption are specific to organisations/ sectors there are some broad areas common to all organisations. The Commission has identified the following broad areas of corruption:
- Allocation of resources like rights, lease, licenses, loans etc,
- Public procurement and management of contracts,
- Auction/sale of Goods,
- Recruitment, hiring etc.,
- Delivery of public services,
- Social welfare schemes,
- Determination of tax liabilities,
- Misappropriation of public assets.
Role of CVO in Preventive Vigilance:
- The Commission has worked towards taking forward the recommendations of the Santhanam Committee by emphasizing that the role of the Chief Vigilance Officers (CVOs) is predominantly preventive and therefore this aspect should get adequate attention of the CVOs.
- The Commission has also posited that preventive vigilance is a tool of management and good, ethical governance and sought the active involvement of the management in all its initiatives from systemic improvements to awareness generation.
- According to Annual Report 2018 of CVC, some of the measures to be undertaken under preventive vigilance are:
- Identification of areas vulnerable to corruption for the purpose of organizing checks, streamlining procedures, etc.
- Identification of areas involving discretion, the exercise of which is not governed by guidelines. Guidelines should be put in place to minimize/remove the scope of discretion.
- Standardisation of rules and procedures for elimination of discretion and minimising human interface to reduce corruption.
- Identification and listing of sensitive posts and effective implementation of a job rotation policy.
- Unambiguous assignment of responsibilities at the different levels of employees in order to ensure accountability.
- Technology as an enabler for fighting corruption has been effectively demonstrated. E-procurements, E-payments, use of websites for dissemination of information and creating awareness, for granting approvals and for delivery of public services, use of CCTV in places of public dealing etc.
- Regular and routine inspections, surprise inspections, reviews, internal as well as statutory audits. Assessment of organisation’s vulnerability / risk to corruption / fraud should be assessed with appropriate systemic improvements introduced.
- Development of ability to detect misconduct within a short span of time of its occurrence. Low detection rate is a major cause of corruption.
- Deterrent measures: Minimize delays in disciplinary proceedings and prosecution and ensure imposition of penalties commensurate with misconducts. An effective system of punitive vigilance sends a message that deviant behaviour does not pay and as a result preventive vigilance gets strengthened.
- An effective Whistle Blower mechanism can also reduce the instances of corruption.
- Making vigilance mechanism more visible.
- Regular follow up and pursuing of cases lodged with the Police/CBI to take them to the logical end.
- Avoiding conflict of interest by enforcing disclosure of interest .
- Preparing and regularly updating the list of officers of doubtful integrity and ensuring that such officers are not posted in sensitive posts.
- Creating awareness among all stakeholders. Public officials should be made aware of their duties and responsibilities, code of conduct, rules and regulations through regular training and awareness programs. Common public should be made aware of their rights, the rules and regulations to enable them to resist unfair treatment and arbitrary behaviour by public officials.
Limitations and issues with CVC:
- CVC is only an advisory body. Central Government Departments are free to either accept or reject CVC’s advice in corruption cases.
- CVC does not have adequate resources compared with number of complaints that it receives. It is a very small set up with a sanctioned staff strength of 299. Whereas, it is supposed to check corruption in more than 1500 central government departments and ministries.
- Nearly 60,000 complaints filed with CVC every year. But every year nearly 20,000 cases remain pending due to inadequate staff strength.
- CVC cannot direct CBIto initiate inquiries against any officer of the level of Joint Secretary and above on its own. Such a permission has to be obtained from the concerned department. However, this provision is declared unconstitutional by Supreme court in a 2014 judgement in case filed by Hon’ble Subramaniam Swamy. Supreme Court of India in its judgement stated that merely the post of a person cannot keep him above the law, stating the provision in CBI section 6 is violative of fundamental right Article 14.
- CVC does not have powers to register criminal case. It deals only with vigilance or disciplinary cases.
- CVC has supervisory powers over CBI. However, CVC does not have the power to call for any file from CBI or to direct CBI to investigate any case in a particular manner. CBI is under administrative control of Department of Personnel and Training(DoPT), which means that, the powers to appoint, transfer, suspend CBI officers lie with DoPT.
- Appointments to CVC are indirectly under the control of Government of India, though the leader of the Opposition (in Lok Sabha) is a member of the Committee to select CVC and VCs. But the Committee considers candidates put up before it. These candidates are decided by the Government.
- Executive and not Legislative Agency: The states now have opted only Vigilance Commission instead of Ombudsman to control corruption in the administration. The main problem with the Vigilance Commission mechanism is that, it is an agency of the executive and not of the legislature. It was not created by a statute but by a government resolution.
- No Authority to Sanction Criminal Prosecution: It does not have any sort of adjudicatory powers as it is not the competent authority to sanction criminal prosecutions for offences committed by the officials while discharging their duty. It will always have to wait for the sanction from the competent authority.
As a result, although CVC is relatively independent in its functioning, it has neither resources nor powers to inquire and take action on complaints of corruption that may act as an effective deterrence against corruption.
Commission’s Initiatives in Preventive Vigilance:
The Central Vigilance Commission has proactively taken forward the agenda of preventive vigilance in the last three years. According to Annual Report 2018 of CVC, Some of the significant initiatives taken in this direction include:
- Guidelines on Preventive Vigilance: The Commission has included a chapter on preventive vigilance in the Vigilance Manual – 2017, for the guidance of organisations. The Commission’s Annual Report to Parliament also highlights areas that require attention of the Government.
- Integrity Index: The Integrity Index which is being developed as a tool of preventive vigilance with an objective to motivate the organisations to focus on and nurture higher levels of transparency and integrity of all their processes, leading to efficiency and citizen centric governance.
- Training and Awareness: The Commission believes that preventive vigilance is a continuous process and there should be a culture and environment developed in organisations to nurture it. Accordingly, the Commission has requested the service training institutes like LBASNA, NPA, NACIN, Railway Service Training Institute and others as also to the PSUs and Public Sector Banks to include a module on preventive vigilance in their induction training programmes for young officers.
- Dissemination of Good Practices: For dissemination of good practices adopted by organisations in the area of preventive vigilance, the Commission has published three compilations in the form of booklets on preventive vigilance. The Commission also organised a workshop for spreading awareness about certain good initiatives taken by a few organisations.
- Portal for Better Interaction among CVOs: The Commission is developing a portal for facilitating constructive interaction among the CVOs on the problems and solutions and sharing of best practices, to ensure effective preventive vigilance.
- Inculcating Ethical Behaviour among Employees and the Public: The Commission’s VAW activities are a significant step for awareness generation among all stake holders, particularly the students and youth through outreach activities.
- Generating Awareness among young students: The Commission has also taken up with the Ministry of Human Resource Development, the issue of developing suitable course content for school children so as to inculcate ethical values among school children while at the same time educating them about the adverse effects of corruption and how it impacts our everyday lives.
- Training, capacity building and skill upgradation: The Commission has been administering training to the CVOs as well as management of the departments/ organisations through customised programmes conducted at reputed/ premier training academies.
- Advising Organisations on various Significant Measures: The Commission has been advising the management and CVOs to ensure:
- Standardisation of processes in vulnerable areas for minimum discretion and better accountability
- Automation of processes and leveraging technology for:
- More transparency in decision making process,
- Faster flow of information for better control and supervision,
- Making maximum information available to all stakeholders,
- Reducing public interface of public servants,
- Building systems and processes for optimum competition in public procurement,
- Making vigilance mechanism more visible,
- Prompt action against acts involving misconduct,
- Simplification of administrative procedures,
- Strengthening whistle-blowers.
- Integrity Pact: A written agreement between Government/Government Department/ Government Company, etc. and all the bidders agreeing to refrain themselves from bribery, collusion, etc. It is implemented by CVC and sanctions are applied on violation of the pact. It is monitored through CVC nominated IEM (Independent External Monitor).
Witness Protection Scheme:
- Recently Supreme Court asked the states to adopt Witness Protection Scheme.
- Supreme Court under 141 and 142 has provided legal sanctity to the scheme until Parliament/state legislature enacts a law on the matter.
- Although National Investigation Agency (NIA) act provides for witness protection, the scheme has extended it to the witnesses in all other cases as per the threat perception. A Witness Protection Bill is still pending.
- In Zahira sheikh vs. State of Gujarat, SC observed that witness protection is necessary for free and fair trial.
About the Witness Protection Scheme:
- The scheme aimed to enable a witness to depose fearlessly and truthfully.
- Under it, witness protection may be as simple as providing a police escort to the witness up to the courtroom or, in more complex cases involving an organised criminal group, taking extraordinary measures such as offering temporary residence in a safe house, giving a new identity, and relocation at an undisclosed place.
- It has provisions related to:
- Procedure to be followed for witness protection,
- Use of technology like in-camera trials o Witness Protection Fund etc.
- As we have seen, in the present stage the status of CVC is weak since it is not a legislative body.
- In 2010 amending the CVC Act has been suggested, which provided for including the Vice-President of India as the chairman and a nominee of the Chief Justice of India as a member of the selection committee. The suggestion looks good as there will be a check mechanism from the side of the judiciary.
- It is always essential to have a strong and an independent ombudsman system having constitutional sanction which has its own autonomy.
- The status of the Vigilance Commission should be improved by giving it a legal status and by removing it from the clutches of the executive and politics as a strong mechanism is highly essential to fight the corruption and misuse of power by holders of high officers.
|COMPTROLLER AND AUDITOR GENERAL OF INDIA (CAG)|
- Article 148 – Provides for an independent office of CAG
- CAG is head of the Indian Audit and Accounts Department
- CAG is “Guardian of Public Purse”
- Duty of the CAG is to uphold the constitution of India and laws of Parliament in the field of Finance Administration.
- CAG acts as a guide, friend and philosopher of the Public Accounts Committee of the Parliament.
- B.R. Ambedkar said that the CAG shall be the most important Officer under the Constitution of India.
- CAG is one of the bulwarks of the democratic system of government in India – the others being the Supreme Court, the Election Commission and the Union Public Service Commission – B. R. Ambedkar.
Appointment and Terms:
- CAG appointed by the President under his warrant and seal.
- Holds office for a period of 6 years or 65 years, whichever is earlier.
- Resigns by giving the resignation letter to the President.
- Removal on similar grounds as the Judge of Supreme Court – he can be removed by the President on the basis of a resolution passed to that effect by both the Houses of Parliament with special majority, either on the ground of proved misbehaviour or incapacity.
- Subscribes before the president an oath or affirmation –
- to bear true faith and allegiance to the Constitution of India;
- to uphold the sovereignty and integrity of India;
- to duly and faithfully and to the best of his ability, knowledge and judgement perform the duties of his office without fear or favour, affection or ill-will; and
- to uphold the Constitution and the laws.
- Security of tenure – Do not hold office till the pleasure of the President though appointed by him.
- Not eligible for further office
- Salary and other conditions determined by the Parliament. Salary equal to judge of SC
- Salary or rights cannot be altered to his disadvantage
- Conditions of service of persons in Indian Audit and Account service prescribed by the President after consultation with CAG
- Administrative expenses charged upon the Consolidated Fund of India.
Duties and Powers:
- Article 149 discusses the duties and powers of CAG.
- The duties are prescribed by the law made by Parliament.
- CAG Act 1971 was amended in 1976 to separate accounts from audit in the Central Government.
- Audits accounts of –
- Consolidated fund of India
- Consolidated fund of each state
- Consolidated fund of each Union Territory
- Audits expenditure of –
- Contingency fund of each state
- Public Account of each state
- Audits all the subsidiary accounts of state and central governments
- Audits receipts and expenditure of state and central government
- Audits receipts and expenditure of –
- Bodies financed by Central and State revenues
- Government companies
- Other corporation and bodies required by laws
- Advises the president to prescription of the form in which accounts of the centre and state shall be kept
- Submits audits and reports to the President who shall place them before both houses of parliament.
- Submits audits and reports to state governor
- Ascertains and certifies the net proceeds of any tax or duty.
- He compiles and maintains the accounts of state government
- Submits audit reports –
- Audit report on appropriation
- Audit report on finance
- Audit report on public undertakings
Role of CAG:
- Accountability of the executive in the sphere of financial administration.
- CAG is an agent of Parliament, conducts audits on behalf of Parliament and is responsible only to the Parliament.
- The CAG has more freedom with regard to audit of expenditure than with regard to audit of receipts, stores and stock.
- The CAG has to ascertain the legality of disbursed money.
- Does Proprietary audit (Proprietary audit is discretionary) – wisdom, faithfulness and economy of government expenditure
- The secret service expenditure is a limitation on the auditing role of the CAG.
- CAG has no control over the issue of moneyfrom consolidated funds of India.
Types of Audit:
|Compliance Audit(obligatory)||Focuses on assessing whether activities, financial transactions and information are, in with compliance laws, rules and regulations etc.|
Financial Audit (obligatory)
|Focuses on whether an entity’s financial information is presented in accordance with the applicable financial reporting and regulatory framework.|
|Performance Audit (discretionary)||Focuses on whether institutions are performing in accordance with the principles of economy, efficiency and effectiveness and whether there is room for improvement.|
CAG and Corporations:
- The role of CAG in the auditing of public corporations is limited.
- CAG’s relationship with the public corporations falls into the following three categories –
- Some corporations are audited totally anddirectly by the CAG. g.- Damodar Valley Corporation, ONGC, etc.
- Some other corporations are audited by private professional auditors who are appointed by the Central Government in consultation with the CAG. g. – Central Warehousing Corporation, Industrial Finance Corporation, etc.
- Some other corporations are totally subjected to private audit. g. – LIC, RBI, etc.
Relation between CAG and Public Accounts Committee (PAC):
- PAC is a Parliamentary Standing Committee created under GOI Act, 1919.
- CAG audit reports are handed over to the PACs at the centre and at the state.
- Three CAG reportse. audit report on appropriation accounts, audit report on finance accounts and audit report on public sector undertakings are examined by PAC.
- At the central level, these reports are submitted by CAG to President, who makes them to be laid in Parliament.
- CAG also assists the committee in its deliberations by preparing a list of the most urgent matters which deserve the attention of the PAC.
- He also helps in making the actions of the committee clear to the witnesses and in making the action of the government clear to the committee.
- CAG position is sometimes one of interpreter and translator, explaining the officials’ views to the politicians and vice-versa.
- The responsibility of the CAG does not end here. He has to watch whether the corrective action suggested by him has been taken or not. In cases whether it has not been taken, he reports the matter to the PAC which will take up the matter.
Issues regarding Audit of Rafael Deal:
- The report comes amidst varied revelations about possible lapses and deviations in the Rafael deal.
- But the audit report is less likely to bring closure to the controversy over the deal as it does not clarify all the doubts about the deal.
- The original issue of bringing down the total acquisition from 126 to 36 aircraft was not given much attention.
- The CAG’s assessment of savings in India Specific Enhancements (ISE) to be around 17% is also not properly documented and needs deeper examinations.
- The report, in all, stresses on the fact that the defence acquisition processes in India require reforms and streamlining.
CAG Report on Rafael Deal:
- The CAG report has examined the €7.87-billion deal for 36 Rafael aircraft signed between India and France in 2016.
- The purpose is to assess if the objectives of Indo-French joint statement and the objectives set out for INT (Indian Negotiating Team) by DAC (Defence Acquisition Council) were achieved in the deal.
- The CAG had to compare the latest deal for 36 Rafael with the price bid by Dassault for 126 Rafael jets in 2007.
- It did this by converting the earlier deal into an equivalent cost for 36 aircraft in 2016.
- The question of 50% offsets in the deal, which has been at the centre of a major controversy, has not been dealt by the CAG.
- It will form part of a separate report by the CAG on offsets in all the deals.
- The CAG report concludes that the 2016 agreement is slightly better in terms of both pricing and delivery than the 2007 deal.
- Price comparison – The 2016 deal through IGA (Inter-Governmental Agreement) is 2.86% cheaper than the earlier UPA (United Progressive Alliance) regime deal.
- On the Rafael’s India Specific Enhancements (ISE), which cost more than €1.3 billion of the €7.87 billion deal, the CAG stated that there was a saving of 17.08%.
- Delivery schedule – There was an improvement of one month in the 2016 contract (71 instead of 72 months for the earlier bid).
- Absence of bank guarantee – The 2007 offer from Dassault had costs of bank guarantee embedded in its offer.
- But there is no such guarantee in the 2016 contract which is a “saving” for Dassault.
- This sum should have been passed on to the Indian government, the audit observed.
- 126 to 36 – By reducing aircrafts to be bought from 126 to 36, there is a wide gap in the operational preparedness of the IAF.
- But the CAG could not find any proposal with the Defence Ministry for filling this gap.
- Ministry of Defence had reportedly informed CAG that it had issued a fresh Request For Information (RFI) for new fighter aircraft to fill this gap.
Government claims –
- One of the government’s claims was that each basic aircraft (without enhancements) was 9% cheaper in the 2016 deal.
- But the audit concluded that there was no difference between the 2007 and the 2016 offer in this regard.
- In an audit report submitted by Comptroller & Auditor General of India (CAG) to the President (under Art. 151) of the Indian Constitution on pricing of Rafael jets, the CAG used the concept of “redactive pricing”.
- In the preface of the audit report, the CAG stated that redactive pricing was unprecedented but had to be accepted due to the Ministry’s insistence citing security concerns.
What is Redactive Audit:
- Redaction is the selection or adaptation by removing sensitive information from a document before publication
- Under the redactive pricing method, CAG withheld full commercial details and blackened the figures on the procurement deal on security concerns cited by the Ministry of Defence.
- Whether the Ministry’s insistence citing security concerns could have been accepted by the CAG can be examined only by the Supreme Court in the light of the constitutional provisions on the CAG’s duties and parliamentary privileges and prerogatives.
Implications of Redactive Audit:
- Defeats the rationale of audit – A performance audit is done to establish whether the procurement activity was executed keeping in mind economy, efficiency, effectiveness, ethics and equity.
- Lack of further scrutiny to uphold accountability – for instance, in the Rafael deal, the Parliament, its committees, the media and other stakeholders of the CAG’s reports cannot obtain complete, accurate and reliable information due to redactive pricing.
- A loophole in anti-corruption efforts – As CAG reports are often the source of further investigation by anti-corruption bodies like the Central Vigilance Commission, Central Bureau of Investigation.
Audit of PM-CARES Fund and PMNRF-
- Earlier, the Comptroller and Auditor General’s (CAG) office had clarified that it wouldn’t auditthe PM-CARES Fund as it is ‘a charitable organisation’ and is also based on donations from individuals and organisations.
- The PMNRF too is not audited by CAG but it is audited by an independent auditor outside of the government.
Criticism of CAG:
- Its report is post-facto – i.e. after the expenditure is incurred and has only prospective value in improving systems and procedures.
- Limitation of auditing roler.t secret services expenditure. Moreover CAG cannot call for particulars.
- The government has increased its participation with the private sector through the PPT (public-private-transfer) and BOT (build-own-transfer) model. CAG does not have the power to auditPPP (Public Private Partnership) investments.
- No provision for auditing of funds that are given to an NGO and elected local bodies. Today NGOs have become a conduit for a multitude of government schemes.
- CAG presently does not have the full authority to audit the PRIs and ULBs. In most states, the Examiners functioning under the Finance Department audit the accounts of local bodies.
- DRDAs (District Rural Development Authority) today are managing large sums of money for rural development yet they also are outside the purview of CAG audits.
- High spread of auditing regime with limited human resources.
- CAG is not always appointed from Revenue, financial stream.
- Conflict of interest – many instances of appointing former Secretary (IAS) appointed as CAG
- CAG in India is not a member of Parliament unlike in Britain.
- No specified criteria and procedure for appointment of CAG – CAG is appointed by the President on recommendations of the PM.
- Reports not submitted timely in legislature – reduces effectiveness of an institution
- No power of contempt or summoning.
- Timely submission of reports in legislature
- Power of appointment should be kept outside the exclusive power of executive– recommended by NCRWC
- CAG is part of the Public Account Committee (PAC) in the UK – exploring this possibility in Indian context.
- Endowing summoning and contempt powers to the CAG
- Amendment to the CAG Act to keep pace with changes in governance – Vinod Rai (Former CAG)
- Coverage of Government funded societies, Panchayats and PPP projects
- Incorporating British model in India – Previous approval systemfor expenditure.
- Technological upgradation – data analytics, Big data, AI, Machine learning
- Prior consultation with PAC chairperson and collegium type mechanism to choose CAG on line with CVC.
- In 2016, CAG opted for Big Data Management Policy to meet new challenges.
- Auditors should be provided access to records on priority basis within limited time, failing which, heads of departments should give explanation for delay.
- CAG plays a vital role to help deter, detect, and take remedial and preventive action to provide good governance. While performing the mandated duties, the CAG highlights deficiencies in internal controls, segregation of powers, defective planning, implementation and inadequate monitoring.
Reforms Suggested By Vinod Rai
- Bring all Private-Public Partnerships (PPPs), Panchayati Raj Institutions and government-funded societies, within the ambit of the CAG.
- CAG Act of 1971 should be amended to keep pace with the changes in governance.
- A collegium type mechanism to choose a new CAG on the lines of selecting a Chief Vigilance Commissioner (CVC).
“The countrymen should not lose this spirit, this is our fight against corruption” – Anna Hazare
- In 1809, the institution of ombudsman was inaugurated officially in Sweden.
- In India, the concept of constitutional ombudsman was first proposed by the then law minister Ashok Kumar Sen in parliament in the early The term Lokpal and Lokayukta were coined by Dr. L. M. Singhvi.
- In 1966, the First Administrative Reforms Commission recommended the setting up of two independent authorities- at the central and state level, to look into complaints against public functionaries, including MPs.
- In 2005, the Second Administrative Reforms Commission chaired by Veerappa Moilyrecommended that the office of Lokpal should be established without delay.
- “India Against Corruption movement” led by Anna Hazare put pressure on the UPA govt. at the Centre and resulted in the passing of the Lokpal and Lokayuktas Bill, 2013, in both the Houses of Parliament.
- It received assent from President on 1 January 2014 and came into force on 16 January 2014.
- The institution of ombudsman is based on the “Doctrine of Administrative Accountability to Legislature”.
- The success of democracy and the realisation of socio-economic development depends on the extent to which the citizens’ grievances are redressed.
- Therefore, the following institutional devices have been created in different parts of the world to deal with the redressal of these grievances.
- The earliest democratic institution created in the world for the redressal of citizens’ grievance is the Scandinavian institution of Ombudsman.
- The institution of Ombudsman was first created in Sweden in 1809. ‘Ombud’ is a Swedish term and refers to a person who acts as the representative or spokesman of another person.
- The Swedish Ombudsman deals with the citizens’ grievances in the following matters:
- Abuse of administrative discretion, that is, misuse of official power and authority
- Maladministration, that is, inefficiency in achieving the targets
- Administrative corruption, that is, demanding bribery for doing things
- Nepotism, that is supporting one’s own kith and kin in matters like providing employment
- Discourtesy, that is, misbehaviour of various kinds, for instance, use of abusive language.
- The Swedish Ombudsman is appointed by the Parliament for a term of four years and can be removed only by the Parliament on ground of its loss of confidence in him.
- The Ombudsman is a constitutional authority and enjoys the powers to supervise the compliance of laws and regulations by the public officials, and see that they discharge their duties properly.
- Overall, the characteristics of the Swedish institution of Ombudsman are as follows:
- Independence of action from the executive
- Impartial and objective investigation of complaints
- Suo moto power to start investigations
- Uninterrupted access to all the files of administration
- Right to report to the Parliament as opposed to the executive;
- Wide publicity given to its working in press and other media
- Direct, simple, informal, cheap and speedy method of handling complaints
- From Sweden, the institution of Ombudsman spread to other Scandinavian countries– Finland (1919), Denmark (1955) and Norway (1962).
- New Zealand is the first Commonwealth Country to adopt Ombudsman in 1962.
- Later UK adopted the ombudsman in 1967
- Since then, more than 40 counties of the world have adopted Ombudsman-like institutions with different nomenclature and functions.
OMBUDSMAN IN INDIA: LOKPAL
Composition and Tenure:
- Lokpal is a multi-member bodythat consists of one chairperson and a maximum of 8 members (1+8).
- Chairperson of the Lokpal should be either the former Chief Justice of India or the former Judge of Supreme Court or an eminent personwith impeccable integrity and outstanding ability, having special knowledge and expertise of minimum 25 years in the matters relating to anti-corruption policy, public administration, vigilance, finance including insurance and banking, law and management.
- Out of the maximum eight members, half will be judicial members and minimum 50% of the Members will be from SC/ ST/ OBC/ Minorities and women.
- The judicial member of the Lokpal either a former Judge of the Supreme Court or a former Chief Justice of a High Court.
- The term of office for Lokpal Chairman and Members is 5 years or till the age of 70 years.
- Appointment Process
- Search committee
- Selection Committee
- A search committee which recommends a panel of names to the high-power selection committee.
- The members are appointed by the president on the recommendation of a Selection Committee.
- President will appointthe recommended names.
|1||Prime Minister who is the Chairperson;|
|2||Speaker of Lok Sabha|
|3||Leader of Opposition in Lok Sabha|
|4||Chief Justice of India or a Judge nominated by him/her|
|5||One eminent jurist|
First Lokpal Of India:
- FormerSupreme Court judge and a member of the National Human Rights Commission (NHRC), Pinaki Chandra Ghose, is India’s first anti-corruption ombudsman, or Lokpal, after his name was cleared and recommended by the high-level selection committee chaired by Prime Minister.
Conditions of Office:
|· The Salary allowances and other conditions of service of the chairperson and members are equivalent to that of Chief Justice of India and Judge of the Supreme Court respectively.
· They are not eligible for reappointment, cannot hold any constitutional or governmental office.
· They cannot contest any elections for a period of 5 years.
|Exception for Prime Minister
|· It does not allow a Lokpal inquiry if the allegation against the PM relates to international relations, external and internal security, public order, atomic energy and space.
· Complaints against the PM are not to be probed unless the full Lokpal bench considers the initiation of inquiry and at least 2/3rds of the members approve it.
· Such an inquiry against the PM (if conducted) is to be held in camera and if the Lokpal comes to the conclusion that the complaint deserves to be dismissed, the records of the inquiry are not to be published or made available to anyone.
|· Jurisdiction of the Lokpal included the Prime Minister except on allegations of corruption relating to international relations, security, the public order, atomic energy and space.
· Its jurisdiction also includes any person who is or has been in charge (director/ manager/ secretary) of anybody/ society set up by central act or any other body financed/ controlled by central government and any other person involved in act of abetting, bribe giving or bribe taking.
· It has the powers to superintendence over, and to give direction to CBI.
|Lokpal does not have jurisdiction||· The Lokpal does not have jurisdiction over Ministers and MPs in the matter of anything said in Parliament or a vote given there.|
- A complaint can be made to the Lokpal for an offence under the Prevention of Corruption Act.
- The Lokpal may order a preliminary inquiry by its Inquiry Wing or refer it any investigation agency like CBI.
- However, the Lokpal should establish that a prima facie case exists after seeking an explanation from the public servant as well as his competent authority.
- With respect to Central Government Servants, it may refer cases to the Central Vigilance Commission.
- Preliminary Enquiry report should be done within 60 days. The preliminary investigation should be normally completed within 90 days.
- A Lokpal bench of not less than 3 members considers it and after giving an opportunity to the public servant, decides on a further investigation – it may dismiss, initiate a full investigation or start departmental proceedings.
- The trials will be held in special courts, which must complete them within one year.
- Extensions can be made but the total period cannot exceed two years.
Basics and Background:
- Even much before the enactment of the Lokpal and Lokayuktas Act (2013) itself, many states had already set up the institution of Lokayuktas.
- The institution of Lokayukta was established first in Maharashtra in 1971
- Till 2013, 21 states and 1 Union Territory (Delhi) have established the institution of Lokyuktas.
Variation across states
- The structure of the lokayukta is not uniform in all the states.
- Some States like Rajasthan, Karnataka, Andhra Pradesh and Maharashtra have created the lokayukta as well as upa-lokayukta, while some others like Bihar, Uttar Pradesh and Himachal Pradesh have created only the lokayukta.
The lokayukta and upa-lokayukta are appointed by the Governor of the state after consulting Chief Justice of High Court and leader of the opposition party.
States like Uttar Pradesh, Himachal Pradesh, Andhra Pradesh, Gujarat, Orissa, Karnataka and Assam prescribed for judicial qualifications, while Bihar, Maharashtra and Rajasthan have no such qualifications.
- There is no uniformityregarding the jurisdiction of lokayukta in all the states.
- The chief minister is included within the jurisdiction of Lokayukta in the states of Himachal Pradesh, Andhra Pradesh, Madhya Pradesh and Gujarat, while he is excluded from the purview of lokayukta in the states of Maharashtra, Uttar Pradesh, Rajasthan, Bihar and Orissa.
- Ministers and higher civil servants are included in the purview of lokayukta in almost all the states. Maharashtra has also included former ministers and civil servants.
- Members of state legislatures are included in the purview of lokayukta in the States of Andhra Pradesh, Himachal Pradesh, Gujarat, Uttar Pradesh and Assam.
- The authorities of the local bodies, corporations, companies and societies are included in the jurisdiction of the lokayukta in most of the states.
Other Feature of Lokayukta
- The lokayukta presents, annually, to the governor of the state a consolidated report on his performance
- He takes the help of the state investigating agencies for conducting inquiries.
- He can call for relevant files and documents from the state government departments.
- The recommendations made by the lokayukta are only advisory and not binding on the state government.
The Lokpal and Lokayuktas (Amendment) Act, 2016
- The Bill amends the Lokpal and Lokayuktas Act, 2013 in relation to the declaration of assets and liabilities by public servants.
- The Lokpal Act requires a public servant to declare his assets and liabilities, and that of his spouse and dependent children. Such declarations must be made to the competent authority within 30 days of entering the office.
- The Bill replaces these provisions to state that a public servant will be required to declare his assets and liabilities. However, the form and manner of making such a declaration will be prescribed by the central government.
Positive Features of The Act:
- It has a wide jurisdiction including Prime Minister of the country.
- It empowers citizens to complain to the Lokpal against corruption by public officials, thus Lokpal is a powerful tool for citizens to hold authorities accountable.
- It is applicable to public servants in and outside India. This indicates that Act has extraterritorial operation.
- Special courts and clear timelines at each stage can ensure that investigation is completed in time bound manner.
- Provisions for prosecution and punishment for filing false and frivolous or vexatious complaint will ensure that Lokpal is not misused for political gains or to settle other scores.
- Lokpal can issue directions to agencies in India like CBI, CVC while investigating, and prosecuting cases under the direction of Lokpal. This ensures independent functioning free from government interference.
Issues with the Act
- Requirement of Government Approval: The Act does not vest power of prior sanction with Lokpal for enquiry and investigation of government officials.
- Timeframe limitation: The Act envisages that the Lokpal shall not inquire into any complaint, made after seven years from the date on which the offence has been committed. This restricts the scope, especially in relation to some of the large and complex scams that are exposed from time to time.
- No Suo Moto power with Lokpal: The Lokpal has been deprived of the authority of taking suo moto cognizance of the cases of corruption and maladministration.
- Constitution of Lokayukta: The Act mandates establishment of the Lokayukta in every state within a period of one year from the date of commencement of this Act. However, there are many states who have not taken action in this regard.
- Power and Jurisdiction of the Lokayuktas in States: State legislatures are free to determine the powers and jurisdictions of the Lokayukta which may establish weak Lokayuktas.
Challenges to the institution of Lokpal
- There are loopholes in the law which needs betterment.
- There was an unjustified delay of 5 years in appointing Lokpal, which shows the lack of political will.
- Lokpal is not free from political influence as the appointing committee itself consists of members from political parties.
- There are vague terms like ‘eminent jurist’ or ‘a person of integrity’ which are not properly defined and can be manipulated.
- The Judiciary is excluded from the ambit of Lokpal.
- The Lokpal has not been given any constitutional backing.
- The complaint against corruption cannot be registered after a period of seven years from the date on which the offence mentioned in such complaint is alleged to have been committed.
- They should be demonstratively independent and impartial.
- Their investigations and proceedings should be conducted in private and should be informal in character.
- Their appointment should be, as far as possible, non-political.
- Their status should compare with the highest judicial functionaries in the country.
- They should deal with matters in the discretionary field involving acts of injustice, corruption or favouritism.
- Their proceedings should not be subject to judicial interference.
- They should have the maximum latitude and powers in obtaining information relevant to their duties.
- They should not look forward to any benefit or pecuniary advantage from the executive government.
- Lokpal can be given constitutional status to make it truly independent of political intervention.
- Some changes need to be made, such as ‘leader of opposition’ criteria.
- Delays in appointments should be avoided. Also, the Lokayuktas in States should also be appointed without any delay.
- Implementation of the law needs to be foolproof, which will ultimately determine the success of the institution.
How Whistleblowing defined in India:
- According to the Companies Act, 2013, whistleblowing is an action aimed at drawing the attention of stakeholders to instances of unethical practices in an organization.
- Under central law concerning allegations against public servants, it is a mechanism to receive complaints relating to alleged corruption or wilful misuse of power or discretion.
- A whistle-blower can be anyone who chooses to expose wrong practices and has evidence to support the allegations. They can be either from within or outside the organization—such as current and former employees, shareholders, external auditors, and lawyers.
- Whistleblowing may sometimes be used to settle personal vendettas or manipulate the stock market. To prevent this from occurring, the audit committee that investigates the allegations will examine them for their merit. If a complaint is proven to be frivolous, the complainant can face a jail term of up to two years.
Provisions related to SEBI:
- India has a poor track record in dealing with insider trading.
- To improve success rates, the market regulator recently introduced a tipping mechanism. SEBI will award up to ₹1 crore for information and successful action against insider traders.
- It has also created a “cooperate and confidentiality” mechanism. This means that if someone guilty of violating securities law is willing to assist in the larger probe, the person will be given exemption from penal action and their identity will be kept confidential.
Law dealing with whistleblowing in India:
- Laws relating to whistleblowing and protection of whistle-blowers are inadequate in India.
- However, the Companies Act, 2013 lays down provisions for whistleblowing and corporate governance in India and the elimination of fraud by establishing adequate vigil mechanism.
- Sections 206 to 229 of the Companies Act, 2013 lay down laws relating to Inspection, Inquiry, and Investigation incorporate.
- Section 208 of the Act empowers an Inspector to inspect company records and furnish any recommendations to conduct investigations. Section 210 states that the Central Government may order an investigation into the affairs of the company in the following cases:
- On receipt of a report by Registrar or Inspector of the company.
- On intimation of a Special Resolution passed by a company that the affairs of the company must be investigated.
- To uphold the public interest.
The Serious Fraud Investigation Office (SFIO), a statutory body is created under Section 211 of the Act which has the power to arrest any person for fraud in the company. The auditors have the responsibility to report to the Central Government if they have reason to believe a fraud committed or being committed to the company.
Whistle-blower Protection Amendment Bill 2015:
- The Bill amends the Whistle-blowers Protection Act, 2014.
- The Act provides a mechanism for receiving and inquiring into public interest disclosures against acts of corruption, wilful misuse of power or discretion, or criminal offences by public servants.
- The Bill prohibits the reporting of a corruption related disclosure if it falls under any 10 categories of information.
- These categories include information related to:
- Economic, scientific interests and the security of India;
- Cabinet proceedings,
- Intellectual property;
- That received in a fiduciary capacity, etc.
- The Act permits disclosures that are prohibited under the Official Secrets Act (OSA), 1923. The Bill reverses this to disallow disclosures that are covered by the OSA.
- Any public interest disclosure received by a Competent Authority will be referred to a government authorised authority if it falls under any of the above 10 prohibited categories. This authority will take a decision on the matter, which will be binding.
Key Issues and Analysis:
- The Statement of Objects and Reasons of the Bill states that the 10 prohibited categories are modelled on those under the RTI Act, 2005. However, this comparison may not be appropriate. Unlike the RTI Act, disclosures under the Bill are not made public but in confidence to a high level constitutional or statutory authority.
- With regard to the 10 prohibited categories, the RTI Act allows:
- The public authority to disclose information if he considers it to be in public interest; and
- A two stage appeal process if information is not made available. The Bill does not contain such provisions.
- A Competent Authority is required to refer a prohibited disclosure to a government authority for a final decision. However, the Bill does not specify the minimum qualifications required or the process of appointment of this authority.
- Whistle-blower laws in other countries also prohibit the disclosure of certain types of information. These include information related to national security and intelligence, received in a fiduciary capacity, and any disclosure specifically prohibited by a law.