The following resolutions were passed on Day 2 of Jan Sansad:
Resolution on the Lokpal and Lokayukta
Bill 2011
We feel that the Lokpal and
Lokayuktas should be:
Adequately independent of
the government and others whom they are mandated to scrutinise, so that they
can function without interference, pressure, and conflict of interest;
Adequately empowered to
detect, investigate and prosecute cases of corruption;
With adequate jurisdiction,
so that no category of public servant is exempt from effective scrutiny; Adequately
accountable to the people of India; And, yet, practical and realistically
workable.
The selection committee
should not have a preponderance of government nominees but could well be the
Prime Minister/Chief Minster, Leader of the Opposition, and a judge of the
Supreme Court/ High Court, nominated by the Chief Justice.
All appointments, transfers
and removal of group A and B staff of the Delhi Special Police Establishment
can only be done with the concurrence of the Lokpal, and that the Chairperson
or the concerned member of the Lokpal would be the accepting authority for the
annual confidential reports of all those Group A and B officers who have
directly or indirectly been involved in any case under the jurisdiction of the
Lokpal.
Much of the corruption that
affects the common person, especially the poor and marginalised, is in state
government agencies. It would be meaningless to create an anti-corruption
agency that leaves out the majority of Indians, especially those who are most
in need of its intervention. The Lokpal Bill should therefore be applicable to
all states. However, if the government cannot persist with the original
proposal of invoking article 253, it is important that the states not be left
out altogether but that article 253 be replaced by article 252 of the
Constitution, which constitutionally mandates that states have an option on
whether they want to adopt the Act.
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1.Grievance redress mechanism for both the central government and state governments-The bill should provide for setting up a grievance redress mechanism for both the central government and state governments. Many grievances which affect the common person, especially the poor and marginalised, are in state government agencies and departments. It would be meaningless to create a grievance redress mechanism at the centre which would leave out the majority of Indians, especially those who are most in need of its intervention. Therefore, we feel that it is crucial that the same law provide for setting up Central and State Grievance Redress Commissions with similar powers, structures and functions.
2. Development of citizen charter in a participatory and transparent manner- the citizen charter which would enumerate the services, goods and obligations of a public authority must be comprehensive and include all the goods, services, entitlements and obligations of a particular public authority alongwith relevant timelines, norms and standards. The citizen charter must be developed in a participatory and consultative manner. Appropriate mechanisms for seeking feedback of the public during the process of formulating the charter must be adopted by public authorities. Further, the citizen charter must be periodically updated to reflect changes, if any.
3. Penalty- The bill must empower the district designated authority, state grievance redressal commission and central grievance redressal commission with powers to penalize GROs and other erring officials. There should be mandatory penalty on GROs and other erring officials unless the officer can show beyond reasonable doubt that the officer made all possible efforts to redress the grievance. Mandatory penalty also needs to be specified in relation to some categories of impugned administrative action such as mala fide action of the officials, repetitive violations etc.
4. Compensation- The bill must include provisions for compensating complainants incase of non-redress of grievances. the Bill should provide for mandatory compensation for certain classes of grievances and this compensation should be paid for by the public authority and then recovered from the salary of the erring officials. Compensation for entitlements delayed/denied as a reparative measure is critical to encourage people to file complaints to promote systemic accountability. Further, providing compensation to complainants should not be made conditional on imposition and recovery of penalty.
5.
Time bound grievance redress-The legislation must
provide for specific and mandatory time lines for redress of grievances and
appeals. A specific time limit for disposal of grievances by the GRO and HoD
and specific time limits for disposal of appeals by the designated authority at
the district level and the State/Central Grievance Redressal Commissions must
be included in the legislation.
6. Information and facilitation centre- In order to facilitate registration, follow-up, and tracking of grievances, the legislation must provide for Information and Facilitation centres at the block/municipal ward level. These centres should proactively provide information to citizens about the schemes and programs of the government and assist citizens in filing grievances and in tracking their applications and entitlements. These centres could be set up as a single window/common centre at the block/municipal ward level, outside any specific department.
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Resolution
on the Whistle Blower Protection Bill
We welcome the passage of the Whistle Blowers Protection Bill, 2011 by the LokSabha. We believe that this legislation is a key measure for fighting corruption and in conjuction with other anti-corruption and grievance redress legislations like the Lokpal bill and the Grievance Redress bill will ensure better governance.
This note highlights some of the deficiencies of the Whistle Blowers Protection Bill, 2011 and suggests amendments to the legislation to ensure a robust mechanism for protection of whistleblowers and to promote an environment to encourage people to blow the whistle about wrongdoings/corruption. (A note with clause-wise amendments in the bill is separately available).
1. Jurisdiction of the Act- the whistleblower protection bill must extend to all public servants and functionaries of a public authority in the centre and the states, corporate bodies, firms or other association of individuals. No arbitrary exemptions should be extended to any organization or public authority such as the armed forces, security forces, the Prime Minister, Chief Ministers or the judiciary etc. In case any public authority is exempt from the Act, alternative mechanisms to protect whistle blowers, which meet the standard of this Act, must be implemented in the authority.
2. Identity of the complainant- there should be adequate provisions in the act to protect the identity of the whistle blower and any other person who provides any material, information or document relevant to the complaint. The competent authority and any persons who get to know the identity of the complainant (or any associated person)should be obligated by law to protect the identity of the complainant (and any associated person).
3. Penalty for malafide revelation of identity of whistle blower- The bill should provide for imprisonment and penalty of any person who reveals the identity of the complainant. Further, where the revelation is malafide, the person shall also be charged with abetment if the revelation of identity resulted in the commission of a crime.
4. Dismissal of complaint-the act should not empower the competent authority to dismiss/reject/close a complaint on the grounds that it is found to be frivolous or vexatious. The terms frivolous or vexatious are impossible to define objectively and would likely to be misused. It may lead to a situation where most complaints would be routinely rejected as being frivolous or vexatious.
5. Time limit for complaints- there should be no time limit (like 7 years) for making complaints regarding offences. Many corruption cases/scams are complex and large and take many years to unravel.
6. Scope of offences- The bill should cover not just offences related to corruption, criminal actions and/or misuse of powers or discretion etc. but also to other actions which have an impact on society (for example environmental destruction, threats to public safety or health).
7. Anonymous complaints- The bill should provide for acting upon anonymous complaints if it is accompanied with adequate supporting documents which reveal a prima facie case.The competent authority should not reject the complaint merely on the basis that it is anonymous. Further, a website which encrypts the data and the identity of the person uploading the data should be provided for people to securely make disclosures without fear of the data being intercepted or the identity of the person being reveals (if the person seeks to remain anonymous).
8.
Victimisation of complainant- the bill must
clearly define what constitutes victimization/harassment of the complainant and
must provide for protection against victimization/harassment of the
complainant. Further, the bill must provide for punitive action against any
person who victimizes/harasses the complainant.
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Resolution on the RTI Act
The following resolutions were adopted to strengthen the RTI Act without making any amendments to the Act:
1. To deal with the increasing pendency in Information Commissions, norms and standards of functioning should be adopted and a time-bound mechanism for disposal of appeals and complaints should be evolved. There must be norms for disposal of cases by individual Commissioners also, with accountability for failures to meet norms and standards. The number of Commissioners appointed in the Commission should be determined in relation to pendency levels so that cases may be disposed of in a timely manner. Commissioners must be given adequate and competent support staff.
2. We welcome the Government’s move to seek a review of the Supreme Court judgement of September 13, 2012 in the Namit Sharma case since:
i.
the judgement requires the Commissions to function in two member benches
thereby effectively halving the number of benches in each Commission. We
believe that two-member benches will only slow down the work of Information
Commissions and are not necessary. This requirement will greatly increase the
already unacceptable levels of pendency in the Commissions and render the RTI
Act ineffective and impede peoples’ fundamental right to information.
ii.
the judgement will, in
our opinion, reduce the diversity in the information commissions. It was
Parliament’s intent to keep the Commissions multidisciplinary and have
Information Commissioners from diverse backgrounds and experience. We believe
that diversity in the composition of Information Commissions is key for
ensuring effective realisation of peoples’ fundamental right to information.
iii.
the judgement will reduce the informality and people friendliness of procedure
of disposal of cases in the Information Commissions. It must be ensured that
the procedure of submitting appeals and complaints to the commissions is simple
and people friendly and there is no insistence on lawyers for arguing on behalf
of the appellant. The RTI Act is most widely used by common people for
accessing their fundamental rights and entitlements from the government and any
formalization/complexities in the procedures of the information commission
would hinder peoples’ abilities to use the RTI Act.
iv. the judgement is ambiguous on the status of existing Information
Commissions and whether these can continue to function till such time that the
stipulated number of judicial members are appointed as Information
Commissioners. The result is that several Information Commissions are not
functioning since the judgment thereby totally impeding people’s right to
information.
v. there is no justification in restricting the position of Chief
Information Commissioners
to only a person who is, or has been, a Chief Justice of the High Court
or a judge of the Supreme Court of India, as laid down in the SC judgement. We
feel that the eligibility
criteria for the Chief Information Commissioners should be widened, as provided for in the
RTI Act.
3.
We urge all Information Commissions to evolve
mechanisms for ensuring compliance with Section 4 of the RTI Act. All
Information Commissions must evolve a template/model for section 4 disclosures,
through their websites and also through other means of communication and adopt
these at the earliest. We urge the Information Commissions to become model
public authorities and adopt the highest standards of transparency in keeping
with the letter and spirit of the RTI Act 2005.
A proper system for displaying the list
of appeals and complaints made in Commissions and pending cases must be made
proactively made available through the website and the telephone by each
Information Commission in the country.
We urge the Information Commissions to adopt a system for uploading all the orders issued by them on their website. Further, a single website linking and providing access to orders by all the Information Commissions should be evolved. We urge the government to provide necessary funds in this regard.
4. There must be time limits for disposal of cases in which show cause notices are issued by the Information Commissions. In cases where show cause notices are served, the case should not be disposed and closed in the Commissions until either a penalty is levied and recovered or a satisfactory response is given by the PIO to the show cause notice. In either case, complete information to the appellant must be provided. Information Commissioners should ensure that penalties imposed by them are recovered and are entered into the ACR/service record of the concerned official.
The annual report of each Information Commission, including details on penalties imposed and recovered, should be placed in the public domain.
5. We urge the state Information Commissions to adopt mechanisms to hold hearings across the state and not just at one location within the Commission. We urge Commissioners to go out amongst people, as far as possible, and hold appeals and complaints disposal camps.
6. It is the responsibility of the government to protect RTI activists and users, and take swift legal action against the attackers. It is also the obligation of governments and Information Commissions to ensure that, if a RTI user is attacked, the information that was being sought by the assaulted user is urgently and on a priority basis, put in the public domain and followed up. We welcome the resolution of the CIC in this regard and urge other commissions to adopt similar measures.
7. For implementation of Section 4 of the RTI Act, state/central governments should undertake periodic audits and Information Commissions should take suomotu cognizance of violations of section 4 and issue appropriate orders after holding open sittings.
8. We are deeply suspicious of any PPP that does not make it explicitly clear that it will be covered under the purview of the RTI Act. We are also disappointed by judgement of the courts in which indefinite stays have been granted in cases related to transparency of PPPs and private bodies performing public functions. We urge the Commissions to ensure that all private bodies providing public functions are transparent in their functioning and are treated as being within the purview of the RTI Act.
9. Illegal exemptions given under Section 24 to government agencies are irrational and contrary to national interest, these must be immediately reviewed and exemptions must be withdrawn.
10. Central and state RTI rules which do not follow a single standard, many of which are ultra vires of the Act itself and which generally make it difficult for people to use the Act, must be immediately modified. DOPT should urgently undertake a review of the rules and persuade the state governments to appropriately modify the rules.
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Resolution on private sector corruption
1. Strengthening PC Act to
include private sector companies: The PC Act does not expressly seek to punish
corrupt acts of private parties, except to a limited extent through Section 9
(dealing with persons accepting gratification to use their influence to influence
a public servant in the conduct of an official act) and Section 12 (dealing
with abetment, pursuant to which a person offering a bribe could be punished.)
However, there is not direct provision prohibiting a private person from
offering a bribe or engaging in other corrupt practices. Such a provision is
required to ensure that all parties to a corrupt are dealt with adequately and
is especially important in cases of “collusive corruption” where the private
person may be the initiator and where the public servant may even have rejected
the bribe.
2. Whistleblower protection
act should extend to private sector
3. Setting up CVC like body
to deal with private companies
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Resolution on Police Reform
RESOLVED THAT Police reforms
are too important to neglect and too urgent to delay. Governments in the states
and at the Centre must not avoid providing the people of India with reformed
and improved policing that is fully accountable for better every day
performance and for its all too common wrongdoing
RESOLVED THAT present
policing is unresponsive oppressive and too often illegal in its actions. The
police must be reformed to be an essential service not a force. The vision and
model of policing has to change to serve the ends of democracy and cannot remain
modelled of a colonial militaristic police aimed at supressing the population
at large.
RESOLVED THAT the role of
the police in our democracy must go beyond enforcing the law to upholding the
law. Policing must go beyond mere
“maintenance of law and order” to protecting life, property and most
importantly, providing an environment within which everyone - and especially
the vulnerable - can enjoy to the fullest, the freedoms and liberties
guaranteed by our Constitution.
RESOLVED THAT recent
government initiatives particularly new police laws go against ensuring greater
accountability and do not reduce illegitimate political influence and
interference.
RESOLVED THAT improving the
police and making it fit for purpose requires that while always remaining
answerable to the political executive the police leadership must enjoy
operational and administrative autonomy; be free from unwarranted and
illegitimate political interference; be assured of a management and
infrastructure that is adequate to achieve its purpose as a service; and most
importantly the police must at all times be answerable for both performance and
wrong doing via accountability mechanisms at multiple levels including
specialised and independent police complaints commissions.
