NCPRI’s position on an Lopal Bill 2015, Non appointment of Chief Information Commissioner in the Chief Information Commission, dilution of Whistleblowers’ Protection Act, and Lokpal & Lokayuktas Act through the Lokpal & Lokayuktas (Amendment) Bill
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  • December 4, 2015
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Today (December 3,2015) the National Campaign for Peoples’ Right to Information (NCPRI) held a press conference on the following issues-
1. NCPRI’s position on the Delhi Janlokpal Bill 2015

The NCPRI believes that the Delhi Janlokpal Bill 2015, introduced in the Delhi Assembly suffers from several weaknesses and deficiencies. The envisaged Janlokpal will not be adequately independent of the government as the government/ruling party dominates the process of appointment and removal of the members of the Lokpal. Further, the Lokpal will not enjoy autonomy in terms of its budget and appointment of staff and will, therefore, be dependent on the government of the day, thereby severely compromising its independence from those it is meant to inquire against.
The Janlokpal is not adequately empowered to investigate allegations of corruption as the Bill does not provide for an investigative agency under the control of the Lokpal. Further, the Janlokpal has not been given administrative control over officers who will be designated as Janlokpal Investigating Officers.
In terms of the jurisdiction of the Janlokpal, as the bill envisages that the Janlokpal will exercise territorial jurisdiction in terms of any act of corruption occurring in the territory of NCT of Delhi, it is unclear how a legislation enacted by the Delhi Assembly will cover central government employees working for the central government and its authorities, judges, military personnel, chairpersons and members of Commissions/bodies set up under Central legislations passed by Parliament, who are covered under the (national) Lokpal & Lokayuktas Act 2014, the IPC and PCA or other central legislations. Inclusion of such persons under the Delhi Janlokpal Bill will raise questions over the jurisdiction, competence and powers of the Delhi Assembly to pass such legislations and will potentially get caught up in legal tussles between the Delhi government and Central government.
Further, the NCPRI is extremely concerned to note that the bill carries the penalty of rigorous imprisonment for false complaints. We believe that this is extremely regressive and undesirable and will discourage even genuine complainants.

2. Non-appointment of Chief Information Commissioner in the Central Information Commission-
The NCPRI is extremely concerned to note that the post of the Chief Information Commissioner of the CIC is once again vacant. The Chief of the CIC retired on the 2nd of December 2015. This is the second time this year that the post of the Chief of the CIC is vacant and the Commission is headless. When the previous Chief Information Commissioner of the CIC had retired on August 22, 2014, there was a gap of more than 9 months before the selection committee made the appointment of the next Chief. This vacancy of 9 months severely hampered the functioning of the CIC and curtailed peoples’ fundamental right to access information as guaranteed under the RTI Act, 2005.

RTI activists and former information commissioners have written to the PM urging him to immediately take necessary steps to appoint the Chief Information Commissioner and other information commissioners of the CIC in a transparent manner. The letter signed by activists Aruna Roy, Anjali Bhardwaj, Nikhil Dey, Maja Daruwala, Venkatesh Nayak and former information commissioners- Wajahat Habibullah and Shailesh Gandhi, is as follows-

Shri Narendra Modi
Prime Minister
Government of India
December 3, 2015
Subject: Appointment of Chief Information Commissioner & other information commissioners in the Central
Information Commission of India
Dear Pradhan Mantiriji,
The Chief Information Commissioner in the Central Information Commission (CIC) of India retired on the 2nd of
December 2015. We are writing to express our concern about the current vacancy in the post of the Chief of
the CIC and to request you to ensure that the appointment is done without any further delay.
This is the second time this year that the post of the Chief of the CIC is vacant and the Commission is headless.
When the previous Chief Information Commissioner of the CIC had retired on August 22, 2014, there was a gap
of more than 9 months before the selection committee made the appointment of the next Chief. This vacancy
of 9 months severely hampered the functioning of the CIC and curtailed peoples’ fundamental right to access
information as guaranteed under the RTI Act, 2005.
The post of the Chief Information Commissioner is critical for the smooth and effective functioning of the CIC
as envisaged in Section 12(4) of the RTI Act, which is reproduced below-
“The general superintendence, direction and management of the affairs of the Central Information Commission
shall vest in the Chief Information Commissioner who shall be assisted by the Information Commissioners and
may exercise all such powers and do all such acts and things which may be exercised or done by the Central
Information Commission autonomously without being subjected to directions by any other authority under this
Act.”
Therefore, given the critical nature of the post, we are gravely concerned about the post of the Chief of the CIC
being left vacant. As the Chairperson of the selection committee, we request you to ensure that the
appointment of the Chief is made at the earliest to ensure proper functioning of the CIC. Further, at present the
CIC is functioning with only 7 information commissioners as against the sanctioned strength of 10, as provided
for in the RTI Act. Given the mounting pendency of appeals/complaints in the Commission which as of today is
more than 33,000, we hope that the selection committee will also make appointments to the other three vacant
posts of information commissioners.
Further, we urge you to ensure that the short-listing and selection of the information commissioners, including
the Chief, is done in a transparent manner. To ensure transparency, at the very minimum, the details of the
process and criteria for short-listing and selecting candidates must be disclosed along with the records of all
deliberations of the search and selection committee. The names of short-listed candidates including details of
their qualification and background should be put up in the public domain prior to the final selection.
The RTI Act has empowered millions of people across the country to hold the government accountable for
delivering services and entitlements. In your speech at the CIC convention in October 2015, you had outlined
how the RTI Act and information requests filed therein, can be used for initiating systemic change and for
improving the functioning of the government. The vision articulated by you and the potential of the RTI Act can
only be achieved if the necessary institutions and infrastructure are in place and function well. We hope you
will take necessary steps to immediately appoint the Chief Information Commissioner and other information
commissioners of the CIC in a transparent manner.
Yours sincerely,
Anjali Bhardwaj, Aruna Roy, Maja Daruwala, Nikhil Dey, Shailesh Gandhi, Venkatesh Nayak, Wajahat Habibullah,
Amrita Johri.

3. Imminent dilution of the Whistle Blower’s Protection Act in the ongoing winter session of Parliament & dilution of the Lokpal & Lokayuktas Act through the Lokpal & Lokayuktas (Amendment) Bill
NCPRI’s position on the amendment bills is as below:

(a)The Whistle Blowers Protection Act (WBP Act), which was passed by Parliament and received the assent
of the President on May 9, 2014, has not been operationalised till date. Instead of promulgating rules to
operationalise the law, the government has moved an amendment bill in Parliament which seeks to
severely dilute the Act.
The amendment bill was brought to Lok Sabha without any public debate on the contents of the bill. RTI
requests seeking information on the nature of amendments were denied to citizens. The text of the
amendment bill was only made public on May 11, 2015, once it was introduced in Lok Sabha. During the
debate in the Lok Sabha, MPs from various parties including the Congress, CPI (M), BJD, Shiv Sena, AITC,
TRS and NCP objected to the dilution of the law and many of them asked for the bill to be referred to a
Standing Committee. However, their request was ignored and the bill was passed by the Lok Sabha on
May 13, 2015.
The Whistle Blowers Protection (Amendment) Bill, 2015 dilutes the original Act in the following ways-
1. Removing safeguard available to whistleblowers from prosecution under the Official Secrets ActThe
amendment bill seeks to remove the clause which safeguards whistleblowers from prosecution
under the Official Secrets Act (OSA) if they make a disclosure under the WBP Act. The basic purpose
of the WBP Act is to encourage people to come forward and report wrong-doing in the form of
corruption, misuse of power and commission of a criminal offence. If whistleblowers are prosecuted
for disclosing information as part of their complaint and are not granted immunity from the OSA, the
very purpose of the law will be defeated. Offences under the OSA are punishable by imprisonment of
up to 14 years. Threat of such stringent penalties would deter even bonafide whistleblowers from
coming forward.
2. Introducing wide ranging exemptions- The amendment bill also states that no disclosures should
contain information which would prejudicially affect the sovereignty, integrity, security, strategic,
scientific or economic interests of the State. Further, information which relates to commercial
confidence, competitive position of a third party etc. also cannot form part of the disclosure made by
a whistleblower, unless the information has been obtained under the RTI Act. If the competent
authority receives a disclosure containing information of the nature mentioned above, then the
disclosure will not be inquired into. The exemptions have been modelled on the exemptions provided
under Section 8 of the RTI Act to ostensibly bring the WBP Act in line with the RTI Act. As the two laws
have completely different goals- the RTI Act seeks to bring out information into the public domain
while the WBP Act provides for disclosures to competent authorities within the government to enable
inquiry into allegations of corruption and wrong-doing and provide protection to the whistleblowerit
is misleading to adopt the exemptions from the RTI Act. Further, the amendment bill completely
ignores the predicament of government servants who come across evidence of wrong-doing in the
normal course of their working and do not need to file applications under the RTI Act to access
information.
As the bill severely dilutes the provisions of the original Act and there has been no formal platform for
public consultation/discussion on the amendments, it is critical that the amendment bill be referred to
a Select Committee of the Rajya Sabha to enable detailed clause-by-clause deliberations and also provide
a chance for citizens to present their views on it. In addition, the government must immediately
promulgate rules to operationalise the existing Whistle Blowers Protection Act to provide protection to
whistleblowers.

(b)The Lokpal and Lokayuktas Act (LL Act) was notified in the gazette in January 2014. The Lokpal &
Lokayuktas Act has not been operationalized despite the passage of more than one year since the Act
was notified in the official gazette.
An amendment was required to ensure that in the absence of a recognised leader of opposition, the leader
of the single largest party in opposition is included in the selection panel for appointing the Lokpal. Instead
of moving the single amendment and quickly operationalizing the Act, the government has moved
several amendments to the Act. The Amendment bill called the “the Lokpal and Lokayuktas and Other
Related Law (Amendment) Bill, 2014”, is currently under deliberation by the Department related
Standing Committee on Personnel, Public Grievances, Law and Justice.
The Lokpal and Lokayuktas and Other Related Law (Amendment) Bill, 2014 dilutes the original Act in
the following ways-
1. Diluting provisions related to asset disclosures by public servants- The amendment bill seeks to
dilute the original scheme of asset disclosure under section 44 of the LL Act which was applicable
to all categories of public servants covered under the Act. The amendment bill essentially exempts
bureaucrats from disclosing details of independently created assets held by their spouse or
children. The Lokpal has been established to receive and inquire into complaints related to
offences punishable under the Prevention of Corruption Act, 1988 (PCA). As one of the grounds of
criminal misconduct under the PCA relates to a public servant or any person on his/her behalf,
being in possession of pecuniary resources or property disproportionate to his known sources of
income, it is critical that disclosure of assets and liabilities of public servants be of a high standard
and be uniform across all categories of public servants covered under the LL Act. As illegally
amassed assets could be handed over to family members, it is important that the declaration of
assets include the details of assets of the spouse and dependent children of the public servant.
The amendment bill also seeks to dilute the provision under Section 44(6) of the LL Act which
requires the asset declarations to be made available on the website of the concerned competent
authority. In India several categories of public officials or even those seeking to hold public office
by contesting elections, are already subject to stringent norms requiring disclosure of assets
owned by them, their spouse and dependent children. Such declarations are publicly available and
therefore, no special exemption should be extended to any class or category of public officials
2. No requirement of quorum in search committee and selection committee meetings- the
amendment bill states that no appointment or proceedings of the Search Committee or Selection
Committee shall be invalid merely by reason of any vacancy or absence of a Member in the
meetings of the respective committees. Such a clause will be open to misuse, as technically, as per
the provisions of the amendment bill, a recommendation can be made by the Search/ Selection
Committee even if only one member is available and attends its meeting. In order to prevent
abuse of the proposed amendment, a provision stipulating a quorum requirement for the
purpose of validating a meeting in either Committee must be part of the bill.

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