Make full use of RTI

Make full use of RTI

Make full use of RTI

BALWINDER SINGH IN THE HINDU

The Right to Information Act (RTI) is a path-breaking law which empowers ordinary citizens to obtain the required information from the public authorities. This is also a major tool for preventing and fighting corruption. The media have been highlighting from time to time the positive work being done by RTI activists. But the experience in the last few years reveals that implementation of the Act has got distorted.

Section 4 is the cornerstone of the Act. It stipulates that “it shall be the constant endeavour of every public authority to provide as much information suo motu to the public at regular intervals through means of communication, including internet so that the public have minimum resort to the use of this Act to obtain information.” The Act goes to the extent of identifying certain specific areas of information which the authorities have to publish in the public domain within 120 days of the enactment.

This critical aspect of the RTI Act has not received the attention it deserves from the authorities, the Central and State Information Commissions or even RTI activists. This has led to the burdening of government organisations as well as the Central and State Information Commissions with a large number of individual applications seeking information and filing appeals, clogging the system. The Information Commissions will soon reach a stage where pending matters will take years for disposal, thus making the system dysfunctional. Every public authority, especially those having a large public interface, needs to take up the challenge of fully implementing Section 4 at the earliest.

Computerisation of government records is not merely a process of conversion of manual records. The challenge lies in re-engineering the business processes and then computerising the records in such a manner that it simultaneously leads to improvement in the efficiency of the organisation and maximising the availability of information in the public domain in formats which are useful to the general public or the stakeholders. While there is no explicit mention of the role of the CIC and the State Information Commissions in this regard, it is inherent in the very scheme of the Act that the Information Commissions have to play a pivotal role in ensuring that Section 4 on maximising information in the public domain is complied with. The Information Commissions can take the cue from the directions issued by the Central Vigilance Commission (CVC) in November, 2006.

This author conceptualised and drafted the relevant circular of the CVC which gave directions to all government organisations to provide complete information on their websites on the laws, procedures governing the issue of licence, permission, clearance, etc., and also make known the stage of applications from public or business entities when they are seeking such permissions, clearances, NOCs, licences, building plans and passports from the public authorities. He prepared an illustrative list of 16 areas where information is to be necessarily displayed in the public domain; three of these are as follows:

Land & building related issues

-Applications for mutation, conversion from leasehold to freehold of lands and buildings, approval of building plans by municipal authorities and the land owning regulating agencies like the MCD, the DDA, the NDMC, the L&DO and similar agencies in other Union Territories;

-Application for registration deeds by Sub-Registrars/Registrars and other applications connected with land record management;

-Application for allotment of land/flats, etc., by urban development agencies like the DDA.

Contracts & Procurement

-Applications for registration of contractors/suppliers/consultants/vendors, etc.

-Status of all bill payments to contractors/suppliers, etc.

Transport sector

Issue of driving licences, registration of vehicles, fitness certificates, release of impounded vehicles, etc. by the RTAs.

The same exercise can be carried forward by the Central as well as State Information Commissions. If the Information Commissions construe their responsibilities in a very narrow manner and take a view that they can only act on complaints, then civil society, the chambers of industries and commerce and RTI activists can lodge complaints wherever maximum possible information has not been placed in the public domain on websites or otherwise and the Information Commissions can issue directions to the public authorities in this regard.

The full potential of the RTI Act can be realised only by maximising information in the public domain. This would not only further the cause of right to information but also upgrade and modernise the working of government agencies, thus improving governance.

(The author is Special Director of the CBI and his email id is sbalwinder@yahoo.com)

http://www.thehindu.com/opinion/open-page/article2442483.ece

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Why all in one?

Parliament building in New Delhi (Sansad Bhava...

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USHA RAMANATHAN IN THE FRONTLINE

Given the experience with extraordinary powers vested in any institution, the wisdom of having a super-powerful body must be debated.

IT is axiomatic that it is the state that has the exclusive power to make law. As is true of many axioms, this too reflects reality only in part; various groups do, in fact, influence lawmaking. The Disabilities Act, 1995; the Right to Information Act, 2005; and the National Rural Employment Guarantee Act (NREGA), 2005, are obvious examples. Yet, alongside this experience is the intransigence of the state, which the Lokpal debate has thrown into sharp focus.

The government’s Lokpal Bill, 2011, was introduced in the Lok Sabha on August 4, following tough talking and hard bargaining by five members of a civil society team. Yet, this Bill manages to remain status quoist even while ceding some ground. Its ‘Lokpal’ will be a chairperson with a maximum of eight other members, half of whom are to be judicial members. The pool from which it will draw its candidates is populated with sitting and retired judges of the Supreme Court and Chief Justices of High Courts. The appointment process, too, is more of the same.

The government is, by instinct and practice, loath to dilute its control over what it creates, and the Lokpal Bill too is witness to this. The chairperson or any other member is to be removed from office on the grounds of misbehaviour on a report from the Supreme Court, on the basis of an inquiry made by it. The Supreme Court may, however, act only when the reference has been made to it “by the President”, on a petition signed by at least a hundred Members of Parliament or, again, by the President, on a petition from a citizen where the President is satisfied that such reference should be made.

Acceding to the demands of the team of five, the Bill has accepted the formula of a separate investigation wing and a prosecution wing to be constituted by and under the control of the Lokpal. There is relative fiscal autonomy where the Lokpal is to prepare its budget each year, which is to be sent to the Central government “for information”.

The sticky issue of whether the Prime Minister should be subject to the Lokpal’s scrutiny has been answered by including him – “after he has demitted the office of the Prime Minister”. Ministers, MPs and high-ranking officials are within this law, but not the lower bureaucracy.

The inclusion of any person belonging to “any association of persons or trust (whether registered under any law for the time being in force or not) in receipt of any donation from the public” is being read as a way of getting back at a public that has placed the government in this difficult spot. The notable absence of corporations from the ambit of this Bill has drawn adverse comments, especially given the role corporations are to have had in so many recent scams.

Prosecution or disciplinary proceedings, the power of search or seizure, provisional attachment of assets, and the power to recommend transfer or suspension of a public servant who is connected with allegations of corruption are all in the Bill, as are provisions providing for declaration of assets and adverse inference where assets not declared are found in the possession of or in use by a public servant.

Perhaps the most striking deviation from extant law is the change in the nature of the ‘sanction’ power. The power of the executive to withhold sanction for prosecution has been a huge hurdle to holding the corrupt guilty. The government Bill hands over to the Lokpal the power to give or withhold sanction. The Jan Lokpal Bill, too, adopts this approach. Neither, however, acknowledges the changes that have been introduced in the Torture Bill, which, carefully, does not leave the power in anybody’s discretion. It, instead, requires that where the decision is not to allow prosecution, reasons have to be given, which may, then, be subject to judicial review. That places a check on arbitrary use of power by any agency. The formula in the two Bills relocates the discretion in the Lokpal but does not change the nature of that power to exercise discretion.

The presumption of ‘good faith’ – that everything done by a public servant shall be presumed to be done “in good faith or intended to be done in the discharge of official functions or in exercise of his powers” – has been retained.

Generally, then, the government Bill is more of the same with one significant change, some reluctant halfway measures, and much that has been left unconsidered.

The Jan Lokpal Bill has moved through many versions. In June, version 2.3 was made available on the website of India Against Corruption (IAC). Mildly put, this Bill is markedly at variance with the government Bill. This Bill envisages a Lokpal that would have “administrative, financial and functional independence from the government”. To achieve this, the Lokpal is to have its own investigating agency, which it will supervise, monitor and direct. It will appoint and dispense with the services of its investigators.

The arm of the Central Bureau of Investigation (CBI) that investigates corruption is to be excised from it and subsumed in the Lokpal. Some years ago, in an effort to give functional autonomy to the CBI from its political masters, the Supreme Court shifted control of the CBI to place it in the Central Vigilance Commission (CVC). The Jan Lokpal Bill works on the unreasoned belief that the Lokpal will not succumb to the temptations of such extensive control over the investigating agency.

Powers of the Lokpal

The powers of the Lokpal are elaborate and have been set out in two clauses in the Bill. They include the power to

“Appoint judicial officers, prosecutors and senior counsel.”

Initiate and monitor the progress of prosecution.

“Attach property and assets acquired by corrupt means and to confiscate them in certain cases.”

“Recommend cancellation or modification of a lease, licence, permission, contract or agreement if it was obtained by corrupt means, and to recommend blacklisting of a firm, company, contract or any other person involved in an act of corruption.” In this case, the public authority shall either comply with the recommendation or reject it within a month of receiving it. If rejected, the Lokpal “may approach the appropriate High Court seeking appropriate directions to be given to the public authority”.

“Ensure due compliance of its orders by imposing penalties on persons failing to comply with its orders.”

“Initiate suo motu appropriate action… on receipt of any information from any source about any corruption.”

Make recommendations to public authorities, in consultation with them, “to make changes in their work practices to reduce the scope of corruption and whistle-blower victimisation”, and the authority concerned is to send a compliance report within two months.

“Prepare a sentencing policy under the Prevention of Corruption Act and revis(e) it from time to time.” This is an extraordinary prescription by which parliamentary power to detail the policy of punishment is moved to the discretion of the Lokpal. The punishment for corruption can be set anywhere between six months and a life sentence.

“Prepare an appropriate reward scheme to encourage complaints from within and outside the government to report acts and evidence of corruption.”

Enquire into the statements of declaration of assets “filed by all successful candidates after any election to any seat in any House of Parliament”.

Punish a public servant with imprisonment up to six months or fine or both “if he fails to comply with its orders for ensuring the compliance”.

Assume competence to investigate any offence under any other law while investigating an offence under the Prevention of Corruption Act.

Interception and monitoring of various media of communication can be undertaken at the behest of the Lokpal – and a member of the core committee claimed recently that this was non-negotiable.

The breadth of the Lokpal’s interest includes within it complaints of corruption against the Prime Minister, Ministers and MPs, and the higher judiciary, and these shall be looked into by a bench of seven members if the Lokpal so decides. The Lokpal will, among its other functions, protect the whistle-blower and the Right to Information (RTI) activist; deal with grievances where there is a delay or non-performance in delivery of services; and ensure that its own staff does not practice corruption.

A complex appointment process and a complaints procedure by which anyone may complain to the Supreme Court, which will then inquire and decide whether a Lokpal is guilty as charged, are the bulwarks offered against excessive power corrupting the Lokpal.

The inadequacy of these protections has been raised and needs much discussion and reasoned debate.

A multiplicity of powers – to legislate, judge, punish and protect – are to be placed in this institution of the Lokpal. There are questions about constitutionality, separation of powers, checks and balances, and the consequence of absolute power waiting to be addressed in this Bill. It does, however, provide a useful counterpoint to the government Bill.

A postscript: although having the Lokayuktas in the Act is one of the demands, the Jan Lokpal Bill does not elaborate on this theme and stops with stating that “similar provisions for Lokayuktas… will have to be incorporated in the Bill”.

The National Campaign for People’s Right to Information (NCPRI) has proposed a “basket of measures” in place of an omnibus law that vests all the power, and responsibility, in a Lokpal. These largely draw upon Bills pending in Parliament and work at improving and strengthening them. These are the Judicial Standards and Accountability Bill, the Whistleblowers’ Bill, the Lokpal Bill and the toughening up of the Central Vigilance Commission Act, 2003. In addition, a National Grievance Redress Bill, 2011, has been drafted to cover the complaints that arise in the delivery of services.

The NCPRI position is that loading one institution with the work of dealing with corruption and inefficiency in the lower bureaucracy, protecting whistle-blowers and RTI activists, and confronting big-ticket corruption would make for an impossible agenda. As for the judiciary, the independence of the judiciary must be preserved, as must the separation of powers; and dealing with matters of standards and corruption in the judiciary would best be by a separate law. The NCPRI documents are offered as critiques and drafts meant to facilitate discussion.

Suggestions emanating from the Lok Satta and the Foundation for Democratic Reforms reflect on the proposals currently on the table and open the door for discussion. A Bahujan Lokpal Bill, 2011, sent to the Standing Committee brings into the debate the issue of representation in such a powerful body and the recognition of the diversion of funds and policy focus from the Scheduled Castes, for instance, to other purposes as happened during the Commonwealth Games.

Some of the changes that may be brought may need a constitutional amendment. Congress general secretary Rahul Gandhi made a suggestion in Parliament that the Lokpal may be made into a constitutional entity, a suggestion that has been seconded by former Chief Election Commissioner T.N. Seshan.

Given the experience with extraordinary power when vested in any institution, the wisdom of having such a super-powerful, insulated body awaits serious deliberation.

Usha Ramanathan is an independent law researcher working on the jurisprudence of law, poverty and rights.

http://www.frontline.in/stories/20110923281902400.htm

RTI a formidable tool to fight corruption: Supreme Court

SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

But impractical demands under Act will be counter-productive

The right to information is a cherished right. Information and the right to information are intended to be formidable tools in the hands of responsible citizens to fight corruption and to bring about transparency and accountability, the Supreme Court has held. A Bench of Justices R.V. Raveendran and A.K. Patnaik gave this ruling (briefly reported on August 10) while allowing disclosure of answer sheets of students in public examinations.The Bench said the RTI Act provisions should be enforced strictly and all efforts made to bring to light the necessary information under Section 4 (4) (b) which “relates to securing transparency and accountability in the working of public authorities and in discouraging corruption.”

Disposing of appeals, the Bench affirmed the Calcutta High Court order directing examining bodies to permit examinees to inspect their answer books, subject to certain clarifications on the scope of the RTI Act.Writing the judgment, Justice Raveendran, however, said: “Indiscriminate and impractical demands or directions under the RTI Act for disclosure of all and sundry information [unrelated to transparency and accountability in the functioning of the public authorities and eradication or corruption] would be counter-productive as it will adversely affect the efficiency of the administration and result in the executive getting bogged down in the non-productive work of collecting and furnishing information.”

The Bench said: “The RTI Act should not be allowed to be misused or abused to become a tool to obstruct national development and integration or to destroy peace, tranquillity and harmony among its citizens. Nor should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty. The nation does not want a scenario where75 per cent of the staff of public authorities spends 75 per cent of its time in collecting and furnishing information to applicants instead of discharging regular duties.”

On disclosure of answer books, the Bench said the provisions of the RTI Act would prevail over the provisions of the bylaws/rules of the examining bodies. As a result, “unless the examining body demonstrates that the answer books fall under the exempted category of information under Section 8 (1) (a) of the RTI Act, it will be bound to provide access to an examinee to inspect and take copies of his evaluated answer books, even if such inspection or taking copies is barred under the rules.”

On the contention that the examining bodies held the answer books in their fiduciary capacity, the Bench said: “Once the examiner has evaluated the answer books, he ceases to have any interest in the evaluation done by him. He does not have any copyright or proprietary right or confidentiality right in regard to the evaluation. Therefore, it cannot be said that the examining body holds the evaluated answer books in a fiduciary relationship, qua the examiner. As no other exemption under Section 8 of the RTI Act is available in respect of evaluated answer books, the examining bodies will have to permit inspection.”

Protecting identity

However, to protect the safety and identity of the examiners, those portions which contain information on examiners/coordinators/scrutinisers/head examiners or which “may disclose their identity with reference to signature or initials shall have to be removed, covered, or otherwise severed from the non-exempted part of the answer books.”

The Bench said: “The right to access information does not extend beyond the period during which the examining body is expected to retain the answer books. In the case of the CBSE, the answer books are required to be maintained for three months and thereafter they are liable to be disposed of/destroyed. Some other examining bodies are required to keep the answer books for six months.”

The Bench said :

The effect of the provisions and scheme of the RTI Act is to divide ‘information’ into the three categories. They are :

  1. Information which promotes transparency and accountability in the working of every public authority, disclosure of which may also help in containing or discouraging corruption (enumerated in clauses (b) and (c) of section 4(1) of RTI Act).
  2. Other information held by public authority (that is all information other than those falling under clauses (b) and (c) of section 4(1) of RTI Act).
  3. Information which is not held by or under the control of anypublic authority and which cannot be accessed by a public authority under any law for the time being in force.Information under the third category does not fall within the scope of RTI Act. Section 3 of RTI Act gives every citizen, the right to ‘information’ held by or under the control of a public authority, which falls either under the first or second category. In regard to the information falling under the first category, there is also a special responsibility upon public authorities to suo moto publish and disseminate such information so that they will be easily and readily accessible to the public without any need to access them by having recourse to section 6 of RTI Act. There is no such obligation to publish and disseminate the other information which falls under the second category.

 The information falling under the first category, enumerated in sections 4(1)(b) & (c) of RTI Act are extracted below :

 “4. Obligations of public authorities.-(1) Every public authority shall–

(a) xxxxxx

(b) publish within one hundred and twenty days from the enactment of this Act,–

(i) the particulars of its organisation, functions and duties;

(ii) the powers and duties of its officers and employees;

(iii) the procedure followed in the decision making process, including channels of supervision and accountability;

(iv) the norms set by it for the discharge of its functions;

(v) the rules, regulations, instructions, manuals and records, held by it or under its control or used by its employees for discharging its functions;

(vi) a statement of the categories of documents that are held by it or under its control;

(vii) the particulars of any arrangement that exists for consultation with, or representation by, the members of the public in relation to the formulation of its policy or implementation thereof;

(viii) a statement of the boards, councils, committees and other bodies consisting of two or more persons constituted as its part or for the purpose of its advice, and as to whether meetings of those boards, councils, committees and other bodies are open to the public, or the minutes of such meetings are accessible for public;

(ix) a directory of its officers and employees;

(x) the monthly remuneration received by each of its officers and employees, including the system of compensation as provided in its regulations;

(xi) the budget allocated to each of its agency, indicating the particulars of all plans, proposed expenditures and reports on disbursements made;

(xii) the manner of execution of subsidy programmes, including the amounts allocated and the details of beneficiaries of such programmes;

(xiii) particulars of recipients of concessions, permits or authorisations granted by it;

(xiv) details in respect of the information, available to or held by it, reduced in an electronic form;

(xv) the particulars of facilities available to citizens for obtaining information, including the working hours of a library or reading room, if maintained for public use;

(xvi) the names, designations and other particulars of the Public Information Officers;

(xvii) such other information as may be prescribed; and thereafter update these publications every year;

(c) publish all relevant facts while formulating important policies or announcing the decisions which affect public;

Sub-sections (2), (3) and (4) of section 4 relating to dissemination of information enumerated in sections 4(1)(b) & (c) are extracted below:

“(2) It shall be a constant endeavour of every public authority to take steps in accordance with the requirements of clause (b) of sub-section (1) to provide as much information suo motu to the public at regular intervals through various means of communications, including internet, so that the public have minimum resort to the use of this Act to obtain information.

(3) For the purposes of sub-section (1), every information shall be disseminated widely and in such form and manner which is easily accessible to the public.

(4) All materials shall be disseminated taking into consideration the cost effectiveness, local language and the most effective method of communication in that local area and the information should be easily accessible, to the extent possible in electronic format with the Central Public Information Officer or State Public Information Officer, as the case may be, available free or at such cost of the medium or the print cost price as may be prescribed.Explanation.–For the purposes of sub-sections (3) and (4), “disseminated” means making known or communicated the information to the public through notice boards, newspapers, public announcements, media broadcasts, the internet or any other means, including inspection of offices of any public authority.”

Some High Courts have held that section 8 of RTI Act is in the nature of an exception to section 3 which empowers the citizens with the right to information, which is a derivative from the freedom of speech; and that therefore section 8 should be construed strictly, literally and narrowly. This may not be the correct approach. The Act seeks to bring about a balance between two conflicting interests, as harmony between them is essential for preserving democracy. One is to bring about transparency and accountability by providing access to information under the control of public authorities. The other is to ensure that the revelation of information, in actual practice, does not conflict with other public interests which include efficient operation of the governments, optimum use of limited fiscal resources and preservation of confidentiality of sensitive information. The preamble to the Act specifically states that the object of the Act is to harmonise these two conflicting interests. While sections 3 and 4 seek to achieve the first objective, sections 8, 9, 10 and 11 seek to achieve the second objective.

Therefore when section 8 exempts certain information from being disclosed, it should not be considered to be a fetter on the right to information, but as an equally important provision protecting other public interests essential for the fulfilment and preservation of democratic ideals.

 When trying to ensure that the right to information does not conflict with several other public interests (which includes efficient operations of the governments, preservation of confidentiality of sensitive information, optimum use of limited fiscal resources, etc.), it is difficult to visualise and enumerate all types of information which require to be exempted from disclosure in public interest. The legislature has however made an attempt to do so. The enumeration of exemptions is more exhaustive than the enumeration of exemptions attempted in the earlier Act that is section 8 of Freedom to Information Act, 2002. The Courts and Information Commissions enforcing the provisions of RTI Act have to adopt a purposive construction, involving a reasonable and balanced approach which harmonises the two objects of the Act, while interpreting section 8 and the other provisions of the Act.

 At this juncture, it is necessary to clear some misconceptions about the RTI Act. The RTI Act provides access to all information that is available and existing. This is clear from a combined reading of section 3 and the definitions of ‘information’ and ‘right to information’ under clauses (f) and (j) of section 2 of the Act. If a public authority has any information in the form of data or analysed data, or abstracts, or statistics, an applicant may access such information, subject to the exemptions in section 8 of the Act.But where the information sought is not a part of the record of a public authority, and where such information is not required to be maintained under any law or the rules or regulations of the public authority, the Act does not cast an obligation upon the public authority, to collect or collate such nonavailable information and then furnish it to an applicant. A public authority is also not required to furnish information which require drawing of inferences and/or making of assumptions. It is also not required to provide ‘advice’ or ‘opinion’ to an applicant, nor required to obtain and furnish any ‘opinion’ or ‘advice’ to an applicant. The reference to ‘opinion’ or ‘advice’ in the definition of ‘information’ in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act.

Section 19(8) of RTI Act has entrusted the Central/State Information Commissions, with the power to require any public authority to take any such steps as may be necessary to secure the compliance with the provisions of the Act. Apart from the generality of the said power, clause (a) of section 19(8) refers to six specific powers, to implement the provision of the Act. Sub-clause (i) empowers a Commission to require the public authority to provide access to information if so requested in a particular ‘form’ (that is either as a document, micro film, compact disc, pendrive, etc.). This is to secure compliance with section 7(9) of the Act. Sub-clause (ii) empowers a Commission to require the public authority to appoint a Central Public Information Officer or State Public Information Officer. This is to secure compliance with section 5 of the Act. Sub-clause (iii) empowers the Commission to require a public authority to publish certain information or categories of information. This is to secure compliance with section 4(1) and (2) of RTI Act. Sub-clause (iv) empowers a Commission to require a public authority to make necessary changes to its practices relating to the maintenance, management and destruction of the records. This is to secure compliance with clause (a) of section 4(1) of the Act. Sub-clause (v)empowers a Commission to require the public authority to increase the training for its officials on the right to information. This is to secure compliance with sections 5, 6 and 7 of the Act. Sub-clause (vi) empowers a Commission to require the public authority to provide annual reports in regard to the compliance with clause (b) of section 4(1). This is to ensure compliance with the provisions of clause (b) of section 4(1) of the Act. The power under section 19(8) of the Act however does not extend to requiring a public authority to take any steps which are not required or contemplated to secure compliance with the provisions of the Act or to issue directions beyond the provisions of the Act. The power under section 19(8) of the Act is intended to be used by the Commissions to ensure compliance with the Act, in particular ensure that every public authority maintains its records duly catalogued and indexed in the manner and in the form which facilitates the right to information and ensure that the records are computerized, as required under clause (a) of section 4(1) of the Act; and to ensure that the information enumerated in clauses (b) and (c) of sections 4(1) of the Act are published and disseminated, and are periodically updated as provided in sub-sections (3) and (4) of section 4 of the Act. If the ‘information’ enumerated in clause (b) of section 4(1) of the Act are effectively disseminated (by publications in print and on websites and other effective means), apart from providing transparency and accountability, citizens will be able to access relevant information and avoid unnecessary applications for  The right to information is a cherished right. Information and right to information are intended to be formidable tools in the hands of responsible citizens to fight corruption and to bring in transparency and accountability. The provisions of RTI Act should be enforced strictly and all efforts should be made to bring to light the necessary information under clause (b) of section 4(1) of the Act which relates to securing transparency and

accountability in the working of public authorities and in discouraging corruption. But in regard to other information,(that is information other than those enumerated in section 4(1)(b) and (c) of the Act), equal importance and emphasis are given to other public interests (like confidentiality of sensitive information, fidelity and fiduciary relationships, efficient operation of governments, etc.). Indiscriminate and impractical demands or directions under RTI Act for disclosure of all and sundry information (unrelated to transparency and accountability in the functioning of public authorities and eradication of corruption) would be counter-productive as it will adversely affect the efficiency of the administration and result in the executive getting bogged down with the non-productive work of collecting and furnishing information. The Act should not be allowed to be misused or abused, to become a tool to obstruct the national development and integration, or to destroy the peace, tranquility and harmony among its citizens. Nor should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty. The nation does not want a scenario where 75% of the staff of public authorities spends 75% of their time in collecting and furnishing information to applicants instead of discharging their regular duties. The threat of penalties under the RTI Act and the pressure of the authorities under the RTI Act should not lead to employees of a public authorities prioritising ‘information furnishing’, at the cost of their normal and regular duties.

Make CBI transparent

Central Bureau of Investigation

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The only explanation for the government’s decision to exempt the CBI from the ambit of the Right to Information Act is that the agency would not like to be accountable for its extra-Constitutional or discretionary activities.

B. R. Lall IN THE TRIBUNE

The Union Government’s decision to place the Central Bureau of Investigation (CBI) outside the ambit of the Right to Information Act has come under sharp criticism. They do not seem misplaced either.

However, bonafide protection in the field of investigation already exists under section 8 (h) of the Right to Information Act that provides “….there shall be no obligation to give any citizen information which would impede the process of investigation or apprehension or prosecution of offenders…” That applies not only to CBI or other central investigating agencies, but also to similar agencies of all the state governments as well.

The decision to exempt the CBI from the RTI Act is sought to be justified on the grounds of national security and possible impact on intelligence gathering. It must be made clear in no uncertain terms that the CBI is neither an intelligence gathering agency nor a security organisation. It is an investigative agency assigned legally the job of exposing rather than concealing.

By the very nature of its work, the CBI has to be an open organisation notwithstanding the sensitive cases that it may be dealing with. The sensitivity in the context of the CBI is when it deals with cases against the high and the mighty “…in the investigations of which one was expected to conceal more and expose less…” It is precisely for this requirement on the ground, as against the legal or operational requirement of the CBI, that such secrecy is needed.

Functionally, as against an intelligence organisation that requires total protection from transparency, investigations actually require complete transparency after a certain stage. It is only the premature disclosure of information during the investigation that usually gives undue advantage to the accused, who may cover his tracks, destroy the evidence and scuttle the investigation.

Transparent investigation

But once the charge sheet has been filed, there is no requirement for any further protection. Incidentally, all the evidence to be relied upon is communicated to the accused person so that he may prepare his defence. Once it is filed in the court of law, the charge sheet also becomes a public document.

Some of the information collected during investigations and contained in the case diaries of the agencies may not be shown in the charge sheet as that may be related to the security of the witness or of the accused and, therefore, not advisable to be brought in the public domain. Such information and documents, on which the prosecution does not rely, are already protected under the Criminal Procedure Code and the Evidence Act.

However, to meet with the ends of justice and to ensure that nothing is held back, the court trying the case has a right to look into all these documents and to use them as per its discretion.

The prevalent laws are quite adequate. Further secrecy, particularly for the CBI in corruption cases, is designed only to protect the people in high places. As such there is no necessity for any further privilege for any investigating agency in the country under the Right to Information Act. As a former CBI officer having fought the corrupt system from inside the government, I concluded that the CBI under the control of the government has to conceal more than reveal, against its lawful role of collection of facts truthfully and impartially without any fear or favour.

The exemption given to the CBI is an extremely retrograde step; it is going backwards and is completely undesirable and redundant. This will only encourage criminality and corruption in the government and may not leave even the CBI untouched as more you keep things under wraps, the more liable the process is likely to be misused by everyone.

Tradition to protect the powerful

This will only create another class of privileged people who would be beyond the operation of laws. Coming to the experience of other countries, such kind of protection has never been given to any agency in those countries that boast of the Rule of Law or uphold Human Rights.

Are we going to negate the rule of law that our constitution enshrines? In India, however, such steps by the governments to protect the high and mighty have been fairly common.

I am tempted to cite two instances. First, the directive that was issued in the eighties to protect politicians and officers beyond the rank of Joint Secretary against any inquiry or investigation. The direction was quashed by the Supreme Court as discriminatory and illegal in the famous Jain Hawala case in December 1997. But lo and behold, in 1998 itself it was placed back on the statute book through an ordinance and later enacted into the CVC Act in 2003. ( Significantly, the NDA government was in power in both 1998 and 2003)

The other instance is an investigation abroad that was to be conducted against a highly placed accused. That required a Letter Rogatory from the Indian Court to the court of the country where the investigations were intended to be conducted.

Under section 166 of the Criminal Procedure Code, any officer in charge of a police station can apply for such a letter. In 1993, a VVIP was to be protected, so the government modified the procedures by an executive order that the CBI should apply to the court for the LR only after obtaining permission from the government, thereby the possibilities of investigation abroad against any influential person were virtually closed, as the government could deny and did deny such permission indefinitely.

Requests were made to the government in this case for issue of LR in May 1993, but the Government of India did not give the permission till December 1996, when this writer left the CBI. ( It was of course the Congress which was in the saddle in 1993 )

So, there could be no investigations abroad, though the VVIP was accused of receiving kickbacks, keeping huge balances in banks abroad and acquiring a number of firms, in India and abroad. So much so, that power to apply for letter rogatory, vested in the SHO under the Code of Criminal Procedure, was withdrawn from the CBI and concentrated in Government of India and that too in the PMO (as was informally learnt), leaving nothing to chance.

Though the papers were pending with the Union Government for years but still this fact could not be made public by the CBI, as that would have amounted to censuring the Government, which the CBI under the control of the government itself could not afford.

The writer is a retired DGP of Haryana and former Joint Director, CBI

What is there to hide?

Maja Daruwala & Venkatesh Nayak IN THE TRIBUNE

It is hard to understand why an agency concerned with investigating corruption should be exempted from the RTI Act. But the government has done just that: and done it against the protests of the strongest voices including people like a former Chief Information Commissioner.

The exemption is particularly disturbing because it signals the ability and the inexorable desire of the government to slowly but steadily nibble away at people’s right to know. Detractors can be forgiven for feeling that the exemption from disclosing information about its functioning now offers the government a fine convenience to protect ‘its own’: bureaucrats in high places, opponents inside and outside; disgruntled business rivals who would probe why another is the favourite of the day; politically useful friends whose messes embarrass the government all the time; the biased investigations that wax and wane in vigour.

With graft gnawing at the edifice of governance, squirreling away the CBI from the public eye adds one more excellent tool to the cause of the corrupt. It will join the already handsome protections provided to the bureaucracy through the law that say, you cannot even begin an investigation against senior officers without specific permissions, let alone prosecute them for corruption. This is in line with the protections that the seniors in the judiciary have built in for themselves. Even an FIR cannot be filed against a High Court or Supreme Court judge accused of corruption, without the sanction of the Chief Justice of India.

The CBI is a most powerful hound in the kennels of whoever has the lease of the house for the moment. So it is unlikely that the Opposition will create any great furore in defence of openness beyond making the right noises. More likely it will satisfy the obsession to always criticise every move of the government with a drizzle of tepid criticism on the mountain already being heaped on government because of its handling of the Anna-Ramdev affair.

There is no doubt that this latest attack on RTI is intended to stem the deluge of dirt that is gushing out as the public wants to know who has dirty hands, and want to be governed by only those with clean ones. But with corruption being now such a complex cloth of connections, revelations tumbling out one after the other about powerful individuals are likely to threaten not only the government of the day but the whole edifice of governance. Perhaps this is exactly the catharsis that is needed but in all likelihood may never be allowed to happen. The chaos is too hard to even contemplate, let alone prepare for controlling it.

There is no rational argument for taking the CBI out from under the RTI Act. It is not an intelligence agency nor is it guarding national security like the armed forces. It is essentially an anti-corruption watch dog and prosecutor which has, over time, been subverted into a catch-all agency governed by whoever is ruling at the Centre.

Nothing in the RTI Act hampers its working. If a particular disclosure has the possibility of adversely affecting its investigations, it can simply fall back on one of the many exemptions that are readily available in the Act. But going through that process would mean that the refusal to disclose could be challenged before the Central Information Commission and the Bureau would have to give an account of itself; its actions, its reasons for secrecy and its progression of each case.

It is this accountability that it wants to avoid perhaps because it knows a lot of its discretionary actions will not stand up to scrutiny. A blanket ban for an agency like the CBI is so useful for hiding inconvenient truths. India’s national motto –satyameva jayate- goes for a toss when dark deeds are rewarded with opaque robes of impunity. By retracting its decision to insulate the CBI, the Centre might like to give itself a fig leaf of a chance at running a decently transparent government.

Maja Daruwala is Director and Venkatesh Nayak is Programme Coordinator of Commonwealth Human Rights Initiative, New Delhi

http://www.tribuneindia.com/2011/20110704/edit.htm#6

Cyber fears

V VENKATESAN IN THE FRONTLINE

Certain provisions in the rules notified under the IT Act cause concern about the security of sensitive personal information.

ON April 11, the Union Ministry of Communications and Information Technology notified new rules under the Information Technology Act, 2000, to regulate the use of the Internet. This led to widespread apprehensions that the government and private persons might gain free access to sensitive personal information concerning Internet users.

The government, however, clarified in a press release that the intent of the rules was to protect sensitive personal information and not to give the government undue powers to access such information. The government added that wide public consultations had been held before finalising the rules and that the rules had been endorsed by the stakeholders.

As the government is empowered to make rules in order to carry out the purposes of an Act, it is necessary to examine whether the rules have a nexus with such purposes. Among the four sets of rules notified on April 11, The Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011, caused serious concern in civil society. Rule 3 in this set defines sensitive personal data or information as “such personal information which consists of information relating to password; financial information such as bank account or credit card or debit card or other payment instrument details; physical, physiological and mental health condition; sexual orientation; medical records and history; biometric information; any detail relating to the above clauses as provided to body corporate for providing service; and any of the information received under above clauses by body corporate for processing, stored or processed under lawful contract or otherwise”.

Rule 3 has an important proviso, which says that any information that is freely available or accessible in the public domain or furnished under the Right to Information Act, 2005, or any other law, shall not be regarded as sensitive personal data.

Rule 2(b) defines “biometrics” as technologies that measure and analyse human body characteristics, such as “fingerprints”, “eye retinas and irises”, “voice patterns”, “facial patterns”, “hand measurements”, and DNA for authentication purposes.

The controversial provision is Rule 6, which deals with disclosure of information. Rule 6(1) lays down that disclosure of sensitive personal data by a body corporate to any third party shall require prior permission from the provider of such information, unless such disclosure has been agreed to in the contract between the body corporate and the provider of information, or where the disclosure is necessary for compliance of a legal obligation.

Rule 6(1) carries a key proviso, which, its critics say, can be misused. It lays down that such information shall be shared, without obtaining prior consent from the provider of information, with government agencies mandated under the law to obtain information, including sensitive personal data for the purpose of verification of identity, or for prevention, detection, investigation, including cyber incidents, prosecution, and punishment of offences. The government agency, under this proviso, shall send a request in writing to the body corporate possessing the sensitive personal data or information, stating clearly the purpose of seeking such information. The government agency shall also state that the information so obtained shall not be published or shared with any other person. Many consider Rule 6(2) to be even more draconian. It says that notwithstanding anything contained in Rule 6(1), any sensitive personal data shall be disclosed to any third party by an order under the law. The safeguards in Rule 6(3) and 6(4) that the body corporate or the third party receiving such sensitive personal data shall not publish or disclose them further are considered weak.

Rule 7 elaborates on this. As the bar on the body corporate is only against publishing sensitive personal data, it may transfer such data to any other body corporate or a person in India, or located in any other country, that ensures the same level of data protection that is adhered to by the body corporate as provided for under these rules. The rule says that the transfer of such data may be allowed only if it is necessary for the performance of the lawful contract between the body corporate or any person on its behalf and the provider of information or where such person has consented to data transfer. Critics ask whether these safeguards will be complied with absolutely, and if not, what the remedies available to a victim are.

R. Chandrashekhar, Secretary in the Department of Information Technology, said the rules were framed to fix the liability on service providers, intermediaries and bodies looking after the details of the users as the government could not allow complete insulation to anyone from any illegitimate activity that involved a body or a person. “The rules were made to define that liability and restrict that liability,” he clarified. He denied that the government intended to restrict free speech through these rules.

Concerns have been expressed over another set of rules, too. The Information Technology (Intermediaries guidelines) Rules, 2011, impose certain duties on intermediaries such as Facebook, Google and Twitter to observe due diligence. Rule 3 in this set requires that the intermediary shall publish the rules and regulations, privacy policy and user agreement for access or usage of the intermediary’s computer resource by any person.

Rule 3 (2) requires that such rules and regulations, terms and conditions or user agreement shall inform users not to host, display, upload, modify, publish, transmit, update or share any information that belongs to another person and to which the user does not have any right to, and is grossly harmful, blasphemous, defamatory, obscene, pornographic, invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever.

Powers to censor content

The loose language of this rule, critics fear, can be interpreted widely, and the intermediaries may enjoy extraordinary powers to censor content, resulting in unnecessary restrictions on freedom of expression.

Rule 3 (2) (i) requires the intermediary to ensure that the content posted by the user does not threaten the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order or cause incitement to the commission of any cognisable offence or prevent investigation of any offence or is insulting to any other nation. Again, this rule is loosely phrased, and does not explain how the intermediary can conclude that a particular post “threatens to…”.

Rule 3(4) is even more mischievous. It requires that the intermediary, upon obtaining knowledge by itself or being brought to actual knowledge by an affected person in writing or through e-mail signed with electronic signature about any such information as mentioned in Rule 3(2), shall act within 36 hours and work with the user or owner of such information to disable it. Further, the intermediary has also to preserve such information for at least 90 days for investigation.

Rule 3(11) provides the remedy for an aggrieved user. It requires the intermediary to publish on its website the name of the grievance officer and his contact details as well as the mechanism by which users or any victim who suffers as a result of access or usage of computer resource by any person in violation of Rule 3 can notify their complaints. The grievance officer has been asked to redress such complaints within one month from the date of receipt of a complaint. Ironically, the rules do not provide content writers a means to defend their work or appeal a decision by the intermediary to remove content. The absence of natural justice in the rules will make it easy for critics to challenge them legally.

Google has expressed fears that the rules could impede its operations in India as it could become liable for questionable content posted by third parties and suffer great harm in terms of huge fines or other punishment. It is reported that the Indian authorities have asked Google to remove content that speaks ill of leading politicians. The Ministry has denied that it intends to acquire regulatory jurisdiction over content posted on the Web.

http://www.frontlineonnet.com/stories/20110701281304700.htm

Engaging with Policy Makers

PRS LEGISLATIVE REVIEW

This Primer attempts to explain the process by which a citizen group can participate and become actively involved in the process of lawmaking.  A number of cases have been used to demonstrate how civil society groups have been able to engage in the process of law making.

Right to Information Act, 2005

The campaign for the right to information was started by a group of workers in a village in Rajasthan when they were not paid by the government for work done during a famine.  They formed a citizen group, Mazdoor Kisan Shakti Sangathan (MKSS).  This group was supported by several social activists and the press, and led to the formation of the National Campaign for People’s Right to Information (NCPRI) in 1996.

The NCPRI and Press Council of India formulated an initial draft of a right to information law in 1996.  The government introduced the Freedom of Information Bill in 2002. In August 2004, the NCPRI suggested a set of amendments to the Freedom of Information Act, 2002.  The National Advisory Council (NAC) endorsed many of these proposals, and the government introduced the Right to Information Bill in December 2004.  The law was enacted in 2005. 

The RTI Act is an example of how citizens groups can significantly affect government policy. This Primer explains the process by which a citizen group can participate and become actively involved in the process of lawmaking.  A number of cases have been used to demonstrate the various ways in which civil society groups have been able to engage with the legislative process. 

Who makes laws?

In India, the lawmaking bodies are Parliament at the central level and Legislative Assemblies and Councils at the state level.  Parliament consists of two Houses:  the Lok Sabha, or “House of the People,” and the Rajya Sabha, or “Council of States.”

How is a law made?

The process of enacting a new law can be broadly divided into four steps:

Step 1:   The need for a new law, or an amendment to an existing piece of legislation, is identified. This may be done either by the government or by citizen groups who can raise public awareness regarding the need for the law.

Sometimes individual Members of Parliament (MPs) can introduce Bills in Parliament, known as private member Bills, as ways to highlight the need for a law.  While such Bills are almost never passed into law, they can provide a framework or a context within which the government can introduce its own legislation on the same issue.

Step 2:   The concerned ministry drafts a text of the proposed law, which is called a ‘Bill’The Bill is circulated to other relevant ministries for inputs. Comments from the public on the proposed draft may also be invited. The draft is revised to incorporate such inputs and is then vetted by the Law Ministry.  It is then presented to the Cabinet for approval.

Step 3:   After the Cabinet approves the Bill, it is introduced in Parliament.  Under the Indian political system, Parliament is the central legislative (or law making) body.  Every Bill goes through three Readings in both Houses before it becomes an Act.

·         During the First Reading the Bill is introduced.  The introduction of a Bill may be opposed and the matter may be put to a vote in the House.  In August 2009, the Law Minister withdrew the motion to introduce the Judges (Disclosure of Assets and Liabilities) Bill as many MPs were opposed to the Bill, on grounds that it violated the Constitution.

After a Bill has been introduced, the Presiding Officer of the concerned House (Speaker in case of the Lok Sabha, Chairman in case of Rajya Sabha) may refer the Bill to the concerned Departmentally Related Standing Committee for examination.  The Standing Committee considers the broad objectives and the specific clauses of the Bill referred to it and may invite public comments on a Bill.

On rare occasions, Bills which come under the ambit of a number of different ministries, may be referred to a Joint Committee.

The Committee then submits its recommendations in the form of a report to Parliament.

In the Second Reading (Consideration), the Bill is scrutinized thoroughly.  Each clause of the Bill is discussed and may be accepted, amended or rejected.

During the Third Reading (Passing), the House votes on the redrafted Bill.

If the Bill is passed in one House, it is then sent to the other House, where it goes through the second and third readings.

During the second reading, the government, or any MP, may introduce amendments to the Bill, some of which may be based on recommendations of the Standing Committee.  However, the government is not bound to accept the Committee’s recommendations.

 Step 4:   After both Houses of Parliament pass a Bill, it is presented to the President for assent.  She has the right to seek information and clarification about the Bill, and may return it to Parliament for reconsideration.  (This may be done only once.  If both Houses pass the Bill again, the President has to assent.)

Step 5:   After the President gives assent, the Bill is notified as an Act.  Subsequently, the Bill is brought into force and rules and regulations to implement the Act are framed by the concerned ministry, and tabled in Parliament.  In some cases, if the provisions in the Bill permit, the ministry may bring the Act into force over a period of time rather than all at once.  For instance, various sections of the Food Safety and Standards Act, 2006 were brought into force in three different stages between August, 2006 and August, 2008.  A number of sections of the Act have not yet been brought into force as of date.

Is the above process always followed?

This process is almost always followed.  However some Bills may not be referred to a Standing Committee. Bills such as the SEZ Bill, 2005 and the National Investigation Agency Bill, 2008 were not sent to a Standing Committee.

How is public participation possible during the process of lawmaking?

Step 1:   The role which can be played by citizen groups before and while the Bill is being drafted.

The case of the Right to Information Act cited on Page 1 is an example of citizen groups coming forward to participate in legislative the process of lawmaking.  Beginning with a movement started by a group of citizens, the law eventually became operational in October 2005.

Step 2:   When the government asks for public feedback on a Bill

Even before a Bill has been drafted, the relevant ministry might choose to advertise and seek inputs from experts and citizens.  This, though, is a rare occurrencen some cases, the concerned ministry drafts a new legislation and seeks public feedback before sending it for Cabinet approval.

A New Police ActThe current Police Act dates back to 1861.  The government felt the need to update this Act.  The Ministry of Home Affairs had invited suggestions from individuals and citizen groups which may be incorporated into a new Bill.

Draft Protection of Women against Sexual Harassment at Workplace Bill, 2007

The Ministry of Women and Child Development had prepared a Bill intended to provide for the protection of women against sexual harassment in the workplace. The ministry had put up a draft of the Bill on its website and had invited comments.

Step 3:   Engaging with Standing Committees.

After a Bill has been introduced, it is usually referred to the concerned Standing Committee which invites various stakeholders and experts for their suggestions.

This provides another opportunity for civil society and the public to get involved in legislation. Fifteen witnesses deposed before the Standing Committee on Rural Development while it was preparing the report on the National Rural Employment Guarantee Bill.  All Standing Committee meetings are closed door sessions which are not open to the general public or the media.  Citizens groups can approach the relevant Committee to ask to be allowed to depose before it.

The Scheduled Tribes (Recognition of Forest Rights) Bill, 2005

The Bill sought to recognise the rights of forest dwellers to land occupied by them.  The Bill was referred to a joint committee of Parliament, since it involved issues relevant to a number of ministries such as tribal affairs and environment.  The committee received 109 written submissions from organisations and individuals. In addition, 44 witnesses deposed before it.

The Food Safety and Standards Bill, 2005

The Food Safety and Standards Bill, 2005 seeks to consolidate several laws governing the food sector and establish a single reference point for all matters relating to food safety and standards.  The Standing Committee heard the views of a number of stakeholders including citizen groups such as VOICE, New Delhi, and Gandhi Peace Foundation, Kottayam.

The Maintenance and Welfare of Parents and Senior Citizens Bill, 2007

The Maintenance and Welfare of Parents and Senior Citizens Bill, 2007 seeks to make it a legal obligation for children and heirs to provide maintenance to senior citizens.

The Standing Committee had received written submissions and oral testimony from several groups as it discussed the Bill between May and July, 2007.  Such groups included the All India Senior Citizens Confederation, the Senior Citizens Service Forum and Age Care India, etc.  The Standing Committee submitted its report in August 2007.  The Bill was finally passed and enacted into law in December, 2007.

The government is not bound to accept the recommendations made by the Standing Committee.  In the case of the Food Safety and Standards Act, 2006, the government did not accept any of the Committee’s recommendations.

Even after the Standing Committee has finalised its recommendations, there is scope to reach out to Members of Parliament and political parties.  There are a number of instances in which political parties – allies in the ruling coalition or the opposition parties – have been able to prevent a Bill from being passed in Parliament or by forcing the government to make amendments to the Bill before being passed.

The Pension Fund Regulatory and Development Authority Bill, 2005

The Pension Fund Regulatory and Development Authority (PFRDA) Bill was introduced in Lok Sabha in March 2005.  The Bill proposes a framework for the development and regulation of pension funds in India in order to promote old age income security.  The Standing Committee presented its report in July 2005.  The Committee was in agreement with most of the provisions of the Bill.  However, the Bill was criticized by a number of trade unions and the Left Parties.

Following the opposition to the Bill, the government deferred the discussion and vote on the Bill. Subsequently, the PFRDA Bill lapsed with the dissolution of the 14th Lok Sabha.

Step 4:   After the Bill is passed by both the Houses and goes to the President.

In some rare cases, the President may ask Parliament to reconsider a Bill.

The Parliament (Prevention of Disqualification) Bill, 2006

Article 102 of the Constitution prohibits MPs from holding any office of profit, except that of a Minister or any office specifically exempted.  The Parliament (Prevention of Disqualification) Act, 1959 lists offices which are exempted.

In 2006, several petitions were filed with the Election Commission that a number of MPs were holding offices of profit.  The government introduced a Bill in May 2006 exempting a number of posts (including those held by some sitting MPs) from the definition of office of profit.  The Bill was passed by both Houses and sent to the President for his assent.

The President returned the Bill, seeking clarification on a number of issues, and asked Parliament to reconsider it.  Parliament passed the Bill again without any changes, following which the President gave his assent.  However, a Joint Parliamentary Committee was set up to go into the issues relating to the holding of offices of profit by MPs.

Step 5:   After the President of India has assented to a Bill and it is notified as an Act.

After an Act is passed by Parliament, it can still be challenged in the courts on grounds that it violates the provisions of the Constitution of India.

The AIIMS (Amendment) Act, 2007

In 2007, Parliament passed the AIIMS (Amendment) Act, 2007, which provided for the retirement of the director of AIIMS at the age of 65.

The Act was challenged in the Supreme Court by the then director of AIIMS, P. Venugopal on grounds that the Act was discriminatory and was introduced specifically to superannuate him.

The Supreme Court upheld this petition and struck down the Act.  It also ordered the reinstatement of Dr. Venugopal as director of the institution.

Step 6:   When the rules and regulations to the Act are being drafted.

The government may ask the public for comments and suggestions before framing rules and regulations under the Act

The Food Safety and Standards Act, 2006The Food Safety and Standards Authority of India has been set up under the Food Safety and Standards Act, 2006 to regulate safety and hygiene standards for different foods.

The regulator recently called for public comments on guidelines drafted by it.  The guidelines were put up by the regulator on its website.

During the process of drafting and the Bill being considered in Parliament, a variety of stakeholders may be involved.  The final Act is usually a compromise between competing interests.  Despite this, there is every reason for concerned citizens and groups to make every effort possible to engage with the process and ensure that they are able to make their voices heard. 

http://www.prsindia.org/parliamenttrack/primers/engaging-with-policy-makers-183/

TIME TO MAKE A START

Thirteen ways to cleanse the system

RAMACHANDRA GUHA IN THE TELEGRAPH

In an article published 50 years ago, the great Indian democrat, Chakravarthi Rajagopalachari, deplored “the unconscionable and grievous expenditure on elections, which gives overwhelming advantage to money-power.” Rajaji argued that “elections now are largely, so to say, private enterprise, whereas this is the one thing that should be first nationalized.” Towards this end, he recommended that the government issue voter cards, take votes not at fixed destinations but at mobile booths that went from home to home and hamlet to hamlet, and provide State funding to parties and contestants.

In the decades since Rajaji wrote, money-power has become even more pervasive and influential. A candidate for Parliament requires crores of rupees to fight an election. These costs are obtained through party funds, which rest not (as they should) on membership fees and small voluntary donations, but on commissions creamed off government contracts, and on bribes given by industrialists to whom the parties have granted favours. The funds provided to (or gathered by) contestants are then used to seek to bribe voters. The money spent in fighting elections is recovered many-fold in case the party or contestant wins.

In Rajaji’s time, a minority of politicians (perhaps 20 per cent or so) were corrupt. And virtually none were criminals. Now, certainly less than 20 per cent of politicians in power are completely honest; and somewhat more than 20 per cent have criminal records. That said, the electoral system itself is relatively transparent. Sterling work by successive election commissioners — such as T.N. Seshan, J.M. Lyngdoh, N. Gopalaswami and S.Y. Quraishi — have largely put an end to the practice, widespread in the 1970s and 1980s, of capturing booths, doctoring ballot papers and ensuring that those who were not likely to vote in your favour were kept away from the electoral process. Also on the positive side, voter turnout remains high, far higher, in fact, than in older and otherwise more mature democracies. Besides, the poor vote in larger numbers than the middle-class and the rich.

Indian elections, then, are by no means a farce; but they are surely in need of reform. They need to be made independent of money-power, and less captive to the interests of crooks and criminals. Recognizing this, the ministry of law and the Election Commission have been holding a series of meetings in different parts of India, soliciting views on how best to reform the electoral system. Asked to speak at the meeting in Bangalore, I took as my manifesto (the word is inescapable) a submission prepared by the Association for Democratic Reforms, a remarkable organization that has single-handedly made electoral malpractice and the criminalization of politics topics of national debate. (It was a public interest litigation filed by the founding members of the ADR that resulted in a Supreme Court judgment making mandatory the declaration of assets and criminal records of all those seeking to contest assembly and parliamentary elections.)

The note submitted by the ADR to the ministry of law and the Election Commission makes 27 recommendations in all. These are listed in detail on the ADR website. I will here highlight 13 recommendations, which I shall divide into two categories — those that are immediately practicable, and can be put in place at once; and those that are highly desirable, and can perhaps be tested first in the Lok Sabha elections of 2014 and then implemented in subsequent parliamentary and assembly elections.

The seven proposals made by the ADR that can be implemented with immediate effect are:

1. Barring criminals from politics: A person charged with serious offences like murder, rape, kidnapping, or extortion, against whom charges have been framed by the police or the courts and which are punishable by sentences exceeding two years’ imprisonment should be prohibited from contesting elections. To prevent vendetta by political opponents, the law can specify that such action will be taken only if the case and charges were filed six or perhaps even nine months before the date of the election which the person wishes to contest;

2. Sources of income: Along with the declaration of assets and liabilities (now mandatory), candidates for state and national elections should also make public their yearly income and its sources;

3. Appointments of election commissioners: At the national level, this should be done by a multi-party committee consisting of the prime minister, the leader of the Opposition in the Lok Sabha, the Speaker of the Lok Sabha, and the Chief Justice of the Supreme Court of India. Likewise, state election commissioners should be chosen by a committee comprising the chief minister, the leader of the Opposition, the assembly Speaker, and the chief justice of the relevant high court. Further, to obviate bias and harassment, the chief election commissioner of the state should be a person from outside the state cadre;

4. Provision for negative voting: The electronic voting machines, while listing the names and affiliations of candidates, should have, as a final option, ‘None of the above’;

5. Bar on post-retirement jobs: All election commissioners should be barred from accepting government posts of any kind for a period of five years after their retirement, and from joining a political party for a further five years;

6. Financial transparency: It should be made mandatory for political parties to declare accounts annually, indicating their sources of funding, patterns of expenditure, etc;

7. Curbs on publicity at public expense: Six months prior to the expiry of the House, the government should be forbidden from taking out advertisements in the media trumpeting their achievements (real or imagined);

Six further proposals made by the ADR, which can be made operational in the next few years are:

1. The winning margin of candidates should be at least one vote more than 50 per cent of those cast. If no candidate gets a majority of votes, then the two top candidates in a constituency can ‘run-off’ against one another;

2. Elections should be funded by the state. The mechanics of this process have to be carefully worked out, to establish how much money is allocated to state parties, how much to national parties, how much to independent candidates, etc. But surely a committee composed of a selection of India’s many world-class economists can work out a formula that is both efficient and equitable;

3. The internal reform of political parties such that they have (a) regular elections (based on secret ballots); (b) term limits for office bearers;

4. The classification of political parties as public authorities, so that their finances and other activities come under the provision of the Right to Information Act;

5. The prompt detection of those who bribe voters with gifts of alcohol, televisions, etc., and their punishment by having their candidacy set aside;

6. The provision of annual reports to constituents by MPs and MLAs.

In recent months, the issue of political corruption has dominated the headlines — from the Commonwealth Games through the 2G scandal and the mining and real estate scams on to the controversy over the lok pal bill. Public discussion has been high on indignation and low on constructive proposals for reform. The document prepared by the ADR is an excellent starting point to move the debate from rhetoric to substance, from talk to action. For, to cleanse the election system is to cleanse the political class, and, thereby, the process of governance itself.

ramachandraguha@yahoo.in

http://www.telegraphindia.com/1110604/jsp/opinion/story_14054369.jsp