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TRANSPARENCY AND ACCOUNTABILITY by ATRISHEKHAR - Coggle Diagram

- - - - HISTORY
        
        The Central Vigilance Commission was set up by the Government in February,1964 by executive resolution on the recommendations of the Committee on Prevention of Corruption, headed by Shri K. Santhanam, to advise and guide Central Government agencies in the field of vigilance.
        
        In September 2003, the Commission was accorded the status of independent statutory authority through the Central Vigilance Commission Act, 2003.
        
        CVC are conceived to be the apex vigilance institution, free of control from any executive authority, monitoring all vigilance activity under the Central Government and advising various authorities in Central Government organizations in planning, executing, reviewing and reforming their vigilant work.
      - OBJECTIVE
        
        To promote integrity in the governance processes by:
        
        Creation of a credible deterrence against corruption through prompt enforcement of anti-corruption laws and regulations
        
        Undertaking effective preventive measures to minimise the scope of corruption.
        
        Raising public awareness to inculcate ethical values and reduce society’s tolerance towards corruption.
      - Composition,salary,tenure ,removal and appointment
        
        The Commission shall consist of:
        
        A Central Vigilance Commissioner – Chairperson;
        
        Not more than two Vigilance Commissioners – Members.
        
        The Central Vigilance Commissioner and the Vigilance Commissioners shall be appointed by the President on recommendation of a Committee consisting of the Prime Minister (Chairperson), the Minister of home affairs (Member) and the Leader of the Opposition in the House of the People.
        
        Hold office for a term of 4 years or until they attain the age of 65 years, whichever is earlier.
        Central Vigilance Commissioner and the Vigilance Commissioners are not eligible for reappointment
        
        The salary, allowances and other service conditions of the Chief Vigilance Commissioner are similar to those of the Chairman of UPSC and that of the Vigilance Commissioner are similar to those of the membersof UPSC. However, they cannot be varied to his disadvantage during service.
        
        The Central Vigilance Commissioner or any Vigilance Commissioner can be removed from his office only by order of the President on the ground of proved misbehaviour or incapacity after the Supreme Court, on a reference made to it by the President, has, on inquiry, reported that the Central Vigilance Commissioner or any Vigilance Commissioner, as the case may be, ought to be removed.
      - Roles & Functions
        
        Exercise superintendence Give directions over the functioning of the Delhi Special Police Establishment (CBI) in corruption matters
        
        To inquire or cause an inquiry or investigation to be made on a reference by the Central Government .
        
        Review the progress of investigations conducted by the DSPE into offences alleged to have been committed under the Prevention of Corruption Act, 1988 or an offence under the Cr.PC.
        
        Review the progress of the applications pending with the competent authorities for sanction of prosecution under the Prevention of Corruption Act, 1988.
        
        Tender advice to the Central Government and its organizations on such matters as may be referred to it by them.
        
        Exercise superintendence over the vigilance administrations of the various Central Government Ministries, Departments and Organizations of the Central Government.
        
        Shall have all the powers of a Civil court while conducting any inquiry.
        
        Respond to Central Government on mandatory consultation with the Commission before making any rules or regulations governing the vigilance or disciplinary matters relating to the persons appointed to the public services and posts in connection with the affairs of the Union or to members of the All India Services.
        
        The Central Vigilance Commissioner (CVC) is the Chairperson and the Vigilance Commissioners (Members) of the Committee, on whose recommendations, the Central Government appoints the Director of Enforcement.
        
        The Central Vigilance Commissioner (CVC) is also the Chairperson and the Vigilance Commissioners (Members) of the Committee empowered to recommend after consultation with the Director (CBI), appointment of officers to the post about the level of SP and above except Director and also recommend the extension or curtailment of tenure of such officers in the DSPE (CBI).
      - OMBUDSMAN (Lokpal and Lokayuktas Act 2013)
        
        history
        
        In 1809, the institution of ombudsman was inaugurated officially in Sweden.
        
        In India, the concept of constitutional ombudsman was first proposed by the then law minister Ashok Kumar Sen in parliament in the early The term Lokpal and Lokayukta were coined by Dr. L. M. Singhvi.
        
        In 1966, the First Administrative Reforms Commission recommended the setting up of two independent authorities- at the central and state level, to look into complaints against public functionaries, including MPs.
        
        In 2005, the Second Administrative Reforms Commission chaired by Veerappa Moilyrecommended that the office of Lokpal should be established without delay.
        
        “India Against Corruption movement” led by Anna Hazare put pressure on the UPA govt. at the Centre and resulted in the passing of the Lokpal and Lokayuktas Bill, 2013, in both the Houses of Parliament.
        
        It received assent from President on 1 January 2014 and came into force on 16 January 2014.
        
        The institution of ombudsman is based on the “Doctrine of Administrative Accountability to Legislature”.
        
        LOKPAL
        
        Composition and Tenure:
        
        Lokpal is a multi-member body that consists of one chairperson and a maximum of 8 members (1+8).
        
        Chairperson of the Lokpal should be either the former Chief Justice of India or the former Judge of Supreme Court or an eminent personwith impeccable integrity and outstanding ability, having special knowledge and expertise of minimum 25 years in the matters relating to anti-corruption policy, public administration, vigilance, finance including insurance and banking, law and management.
        
        Out of the maximum eight members, half will be judicial members and minimum 50% of the Members will be from SC/ ST/ OBC/ Minorities and women.
        
        The judicial member of the Lokpal either a former Judge of the Supreme Court or a former Chief Justice of a High Court.
        
        The term of office for Lokpal Chairman and Members is 5 years or till the age of 70 years.
        
        A search committee which recommends a panel of names to the high-power selection committee.
        
        The members are appointed by the president on the recommendation of a Selection Committee.
        
        1 Prime Minister who is the Chairperson;
        
        2 Speaker of Lok Sabha
        
        3 Leader of Opposition in Lok Sabha
        
        4 Chief Justice of India or a Judge nominated by him/her
        
        5 One eminent jurist
        
        President will appointthe recommended names.
        
        Functions:
        
        A complaint can be made to the Lokpal for an offence under the Prevention of Corruption Act.
        
        The Lokpal may order a preliminary inquiry by its Inquiry Wing or refer it any investigation agency like CBI.
        
        However, the Lokpal should establish that a prima facie case exists after seeking an explanation from the public servant as well as his competent authority.
        
        With respect to Central Government Servants, it may refer cases to the Central Vigilance Commission.
        
        Preliminary Enquiry report should be done within 60 days. The preliminary investigation should be normally completed within 90 days.
        
        A Lokpal bench of not less than 3 members considers it and after giving an opportunity to the public servant, decides on a further investigation – it may dismiss, initiate a full investigation or start departmental proceedings.
        
        The trials will be held in special courts, which must complete them within one year.
        
        Extensions can be made but the total period cannot exceed two years.
        
        Powers
        
        ● Jurisdiction
        
        ● Pro-Active Disclosure (all elected officials- assets and liabilities)
        
        ● authority to supervise and direct CBI's operations
        
        ● Power of Civil court (inquiry wing)
        
        In exceptional cases, Lokpal has the
        authority to seize properties, proceeds,
        receipts, and benefits obtained through
        corruption
        
        ● Power to recommend the transfer or suspension of a public servant accused of corruption.
        
        ● Preserve evidences during investigation
        
        WHISTLE-BLOWER CONCEPT
        
        According to the Companies Act, 2013, whistleblowing is an action aimed at drawing the attention of stakeholders to instances of unethical practices in an organization
        
        Law dealing with whistleblowing in India
        
        Laws relating to whistleblowing and protection of whistle-blowers are inadequate in India.
        
        However, the Companies Act, 2013 lays down provisions for whistleblowing and corporate governance in India and the elimination of fraud by establishing adequate vigil mechanism.
        
        Sections 206 to 229 of the Companies Act, 2013 lay down laws relating to Inspection, Inquiry, and Investigation incorporate.
        
        Section 208 of the Act empowers an Inspector to inspect company records and furnish any recommendations to conduct investigations. Section 210 states that the Central Government may order an investigation into the affairs of the company in the following cases:
        
        On receipt of a report by Registrar or Inspector of the company.
        
        On intimation of a Special Resolution passed by a company that the affairs of the company must be investigated.
        
        To uphold the public interest.
        
        disadvantage
        
        Whistleblowing may sometimes be used to settle personal vendettas or manipulate the stock market. To prevent this from occurring, the audit committee that investigates the allegations will examine them for their merit. If a complaint is proven to be frivolous, the complainant can face a jail term of up to two years.
        
        Social Audit
        
        Social Audits (SA) are democratic tools whereby people
        themselves participate in assessing the efficacy of scheme implementation in their area".
        
        Evolution
        
        ● mid 1990s- Mazdoor Kisan Shakti Sangathan
        
        o village based Jan Sunwais on development expenditures
        
        ● AP- SSAAT (Society for Social Audit accountability and transparency)
        
        ● 1st instance- 1979- TISCO Jamshedpur
        
        Significance
        
        ● Accountability and Transparency- Public scrutiny
        
        ● Professionalism and spirit of dutifulness
        
        ● Efficiency and Effectiveness
        
        o Telangana- seven rounds of SA of the MGNREGA- past 9 years- 50 crore recovered
        
        ● Quality of service
        
        ● Uncovers irregularities and malpractices (Vested interests)
        
        ● Grass root democracy- citizen participation and influence of Gram Sabha
        
        ● Formulation of improved programmes in future
        
        Problems and Challenges
        
        ● Not institutionalized in all states (independent
        
        ● lack of compliance and lack of stringent penalty for flouting social audit principles
        
        ● Lack of awareness among Gram Sabha
        
        ● coverage localized- are often ad hoc with only few selected aspects
        
        ● expertise- social auditors
        
        ● Several issues necessitate the simultaneous implementation of a package of programmes Ex- Rural Health
        
        ● Inaction in response to audit reports and results
        
        Measures required to strengthen the framework
        
        enact a model act- Meghalaya's Social Audit Legislation-The Meghalaya Community
        Participation and Public Services Social Audit Act, 2017
        
        ▪ Platform for discussion.
        
        ▪ Raise public consciousness about people's rights.
        
        ▪ Identifying eligible beneficiaries.
        
        ▪ Complains and Grievances registered
        
        Independent social Audit units with
        independent governing body and adequate staff
        
        Strengthening the Propriety Auditing (Check
        wisdom of decision) of CAG and implementing guidelines of CAG on Social Auditing
        
        Social Accountability
        
        Wide range of actions and mechanism that
        citizens and communities can use to hold public officials accountable
        
        Principles of SA
        
        Janta ka Manch
        
        Prasar
        
        Bhagidari
        
        Karyawahi
        
        Sunwai
        
        Jankari
        
        Need
        
        ● Compensate for limits of traditional audit systems
        
        ● Improved governance
        
        ● Citizen's empowerment
        
        Common Tools
        
        Participatory budgeting- Gujarat
        
        Participatory planning- Kerala
        
        Public expenditure tracking- Delhi; Rajasthan
        
        Social Audit
        
        Citizen Charter
        
        Challenges
        
        ● Resistance to reform
        
        o withholding crucial info and providing inadequate info
        
        ● Complacency on the part of citizen
        
        ● Disruption by powerful vested interest- threats and coercion
        
        ● Lack of effective grievance redressal
        
        Imperative for sound social Accountability law
        
        Effective decentralization- principle of
        Subsidiarity
        
        ● Information and awareness (section 4- strong)
        
        ● Capacity building and community mobilization
        
        ● Making SA mandatory in programme guidelines
        
        ● Grievance redressal- online portals, helplines and detail code of conduct
        
        Issues
        
        ● Constitutional backing
        
        ● Politically motivated appointments (Selection committee)
        
        ● Delays in Appointments (2019)
        
        ● Do not cover Judiciary
        
        ● Lacking adherence with Act- No annual report submitted to President
        
        ● RTI- the inquiry and prosecution wings of the anti-corruption ombudsman are yet to be set up, as mandated by the Act of 2013.
        
        ● Whistleblowers were not granted any specific protection under the 2013 act
        
        ● Overlap in Lokpal, CVC probe may cause confusion
- - - - Evolution
        
        ● Mazdoor Kisan Shakti Sangathan (1994)
        
        o Aruna Roy IAS
        
        ● TN- 1997 (first state to enact RTI Legislation)
        
        ● Freedom of Information Act 2002
        
        ● RTI Act 2005 (National Advisory council)
        
        ● SP Gupta vs UOI, 1982
        
        o RTI Fundamental right under (Article 19(1)(a) and 21
      - FEATURES
        
        The law was passed by Parliament on 15 June 2005 and came fully into force on 12 October 2005.
        
        Every day, over 4800 RTI applications are filed. In the first ten years of the commencement of the act over 17,500,000 applications had been filed.
        
        RTI is a fundamental right for every citizen of India. This act was enacted in order to consolidate the fundamental right in the Indian constitution ‘freedom of speech’.
        
        Since RTI is implicit in the Right to Freedom of Speech and Expression under Article 19 of the Indian Constitution, it is an implied fundamental right.
        
        Information disclosure in India is restricted by the Official Secrets Act 1923 and various other special laws, which the new RTI Act relaxes.
        
        RTI has proven to be very useful, but is counteracted by the Whistle Blowers Protection Act, 2011.
      - CHARACTERSTICS
        
        appointment of an information officerin each department
        
        It fixes a 30-day deadline for providing information, the deadline is 48 hours if information concerns the life or liberty of a person.
        
        Information will be free for people below the poverty line. For others, the fee will be reasonable.
        
        The Act imposes an obligationon public agencies to disclose the information suo-moto to reduce requests for information.
        
        It provides for the establishment of a Central Information Commission (CIC) and State Information Commissions. They will be independent high-level bodies to act as appellate authorities and vested with the powers of a civil court.
        
        The jurisdiction of the Commission extends over all Central Public Authorities.
        
        When it comes to the RTI Act, the CIC is the only appellate authority which may declare a body as public authority if it is convinced that the organization fits into the criteria for being under the RTI Act.
        
        The Act overrides the Official Secrets Act, 1923.
        
        The information commissions can allow access to the information if public interest outweighs harm to protected persons.
        
        Any person who is a citizen of India can file an RTI
        
        All categories of exempted information to be disclosed after 20 yearsexcept cabinet deliberations and information that affects security, strategic, scientific or economic interests, relations with foreign states or leads to incitement of offence.
      - Importance of RTI:
        
        Openness:
        
        Transparency:
        
        Trust building:
        
        Accountability:
        
        Low corruption:
        
        Promotion of democracy:
        
        Ethical government
        
        judicious use of public resources and prevents usurpation of unlimited powers.
      - Challenges in the implementation of the RTI Act:
        
        Demand side challenges:
        
        Inability to draft the application:
        
        Psychological barriers:
        
        Misuse of RTI:
        
        Lack of protection:
        
        Though RTI’s aim is not to create a grievance redressal mechanism, the notices from the Information Commissions often spur the public authorities to redress the grievances.
        
        The information sought by public is either voluminous or it has no public interest. Such information is requested only for publicity purpose.
        
        Lack of awareness about the act
        
        Supply side challenges:
        
        Attitude of secrecy
        
        Compliance with orders
        
        Dilution of supplementary laws like the whistle blower protection act
        
        Section 8 of the RTI Act allows disclosure of information if the larger public interest is served. INFO not disclosed by keeping it under national security clause of the act.
        
        Section 4 of the Act provides for the “Proactive Disclosure of Information” but there is little development in this direction
        
        Training:
        
        File Maintenance:
        
        Sealed Cover Jurisprudence
        
        Sealed cover jurisprudence has been frequently employed by courts in the recent past for example Rafale Fighter Jet Deal 2018, 2014, BCCI Reforms Case, Bhima Koregaon case 2018 etc
        
        gainst the Principles of Transparency and Accountability:
        
        Reduce the Scope of Reasoning
        
        Obstruction to Fair Trial and Adjudication
        
        Arbitrary in Nature
      - RTI vs Right to Privacy:
        
        Conceptually, RTI and Right to Privacy are both complimentary as well as in conflict to each other.
        
        While RTI increases access to information, the right to privacy protects it instead.
        
        At the same time they both function, as citizen rights safeguarding liberty against state’s overreach.
        
        In Justice Puttaswamy vs Union of India case, Supreme Court ruled that right to privacy is Fundamental Right under article 14, 19 and 21.
        
        Thus while disclosing information under RTI act government need to ensure that such information does not harm liberty and dignity of the individuals.
        
        Such right to privacy is already ensured in many acts such as Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act 2016, Personal Data Protection Bill 2019, DNA Technology (Use and Application) Regulation Bill 2019 etc.
        
        When the question of harmonising the contradictory rights arises, it should give justice to the larger public interest and advancement of public morality.
      - RTI and Public Private Partnerships (PPP)
        
        In 2013, Department of Personnel and Training has issued memorandum regarding projects under Public Private Partnership(PPP):
        
        Information regarding procurement by public authority should be made public.
        
        All information regarding PPP should be disclosed in public domain.
        
        Details of SPVs, detailed project reports, concession agreements under PPP model should be made available under RTI Act.
        
        Process of selection of private party should be proactively disclosed.
        
        The Right to Information Rating is a programme founded by Access Info Europe (AIE) and the Centre for Law and Democracy (CLD) and is conducted by Transparency International.
      - RTI vs NGOs:
        
        In D.A.V. College Trust and Management Society Vs. Director of Public Instructions case Supreme Court ruling has brought NGOs receiving funds from the governments under the ambit of RTI Act.
        
        Trusts and NGOs “substantially funded” the government will be considered “public authorities” under the RTI Act.
        
        Whether an NGO/trust enjoys “substantial government financing” will be examined on a case by case basis.
        
        Substantial funding can be in both direct and indirect ways.
        
        Substantial funding does not necessarily have to be in the form of financial aid or be more than 50% of the funding.
        
        While determining substantial funding, the current value of the land also have to be evaluated.
        
        Currently, NGOs are regulated under the provisions of Foreign Contribution Regulation Act (FCRA) and Foreign Exchange Management Act (FEMA Act).
        
        This ruling would mean that NGOs will have to maintain records as provided under the RTI Act, and every citizen will have the right to get information from them.
      - Political Parties Under RTI Act, 2005
        
        The PIL was filed in the Supreme court arguing that political parties registered with Election Commission to be brought under section 29A of Representation of People Act, 1951 to be declared as ‘public authority’ under the RTI Act, 2005
        
        Six national parties – the BJP, the Congress, the BSP, the NCP, the CPI and the CPI(M) were brought under the ambit of the RTI Act by a full bench of the Central Information Commission in 2013. (Trinamool Congress was also recognised as the seventh national party in 2016). However, the political parties have refused to entertain the RTI applications directed at them.
        
        Several activists have approached the Supreme Court on the grounds of non-compliance of the CIC order and the matter is pending.
        
        ADVANTAGES
        
        170th report of the Law Commission of India on reform of the electoral laws recommended to introduce internal democracy, financial transparency and accountability in the working of the political parties.
        
        DISADVANTAGES
        
        Transparency provisions for parties already exist in the Income Tax Act, 1961, and Representation of the People Act, 1951, which demand “necessary transparency regarding financial aspects of political parties.
      - Success stories of RTI:
        
        This village has finally tasted the power of RTI--Suvarana Bhagyawant made rounds of the panchayat office to get her grandfather's death certificate
        
        Voices raised over the issue of overcrowding of jails through RTI--RTI query by national working committee member, NCPRI, Raja John Bunch, by IG (prisons) showed that the total number of prisoners lodged in state jails is more than the maximum population of prisoners that each of the jail can support. In March 2013, the Supreme Court (SC) issued a notice to the Centre
        
        Better Road for Bagepalli-Sakshi Trust presented an RTI workshop that Toufeeq a staffer from ADATS (An NGO), had attended. Towfeeq then used RTI to find out the real story of Bagepalli’s roads. He says, “nearly Rs 1.32 crores were sanctioned for the road but no work was done. Of this 1.32 crores, 1.15 crores was shown as spent in response to my RTI application.
        
        Rajasthan villagers use RTI to end woes-Revat Ram and his friends used the Act to get all records of their ration shop in Himmatsar village and by exposing how grains meant for the poor were being black-marketed at a ration shop in Bikaner district.
        
        Karnataka villagers insist on Right to Food-People in Rural Karnataka have combined the campaigns for the Right to Information and the Right to Food to fight hunger. Poor villagers have successfully participated in social audits and public hearings to demand that the rations due to them are allotted to them at the correct prices.
    - - the central government will notify the term of office for the CIC and the ICs.
    - - the salaries, allowances, and other terms and conditions of service of the central and state CIC and ICs will be determined by the central government.
    - - Deduction was required if there was any pension etc- this provision fot removed