Hurried amendment to dilute a key provision, but no hurry to put the law into practice
The Lokpal law that was enacted after decades of debate and demand for an anti-corruption institution was dealt a severe blow as an amendment bill was introduced and passed by parliament in less than 24 hours.
On July 28, parliament passed the Lokpal and Lokayuktas (Amendment) Bill, 2016 to amend Section 44 of the original Lokpal Act and the corresponding rule-making power under Section 59. Section 44 of the Lokpal Act required all public servants covered under the Act to disclose their assets and liabilities and those of their spouses and dependent children. These disclosures were required to be published on government websites.
The amendment bill, 2016 has fundamentally diluted the Lokpal Act as it has done away with the statutory requirement of public servants to disclose the assets of their spouses and dependent children. The bill has also dispensed with the statutory requirement of public disclosure of these statements. The amendment bill now allows for the form and manner of disclosure of assets and liabilities of public servants to be prescribed by the central government through rules. The amendment bill was brought to parliament without any public debate and the text of the bill was in fact not even made available in the public domain.
The amendment bill has severely diluted one of the key provisions of the Lokpal Act ostensibly to extend the deadline for public servants to disclose their assets. If an amendment was required for procedural reasons to extend the deadline for disclosure of assets by public servant, then only a limited amendment to sub-section 4 of Section 44 should have been brought in, which stated that the asset disclosures must be made by July 31. The scope of the amendment bill passed by parliament is much wider as it completely amends section 44 of the Lokpal Act.
No intent to operationalise the Lokpal law
The government’s intention not to operationalise the Lokpal law stands exposed as the amendment that was essential to operationalise the law (which was to provide 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) has not been included in the bill. Had the government been committed to tackling corruption, it would have also brought in the amendment regarding the composition of the selection committee.
Need for high standard of public servants’ asset disclosure
The Lokpal amendment bill of 2016 has diluted the original scheme of disclosure intended under Section 44 of the Lokpal Act. 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. 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.
Further, wide publicity, as envisioned in sub-section 6 of section 44 of the original Lokpal Act, was required to enable members of the public to make informed complaints to the Lokpal.
In India, several categories of public officials are already subject to stringent norms requiring disclosure of assets owned by them, their spouse and dependent children and such declarations are publicly available and therefore, there was no reason to extend special exemptions to any class or category of public officials. In India, all candidates contesting elections to parliament and state legislatures are required to disclose details of their assets and liabilities and those of their spouse and dependents and these disclosures are publicly available on the website of the Election Commission of India, where affidavits of all candidates who have contested parliamentary or state legislative assembly elections are available from the year 2004 onwards. Similarly, since 2009, financial disclosures of assets of judges of supreme court and high courts, are publicly available on the websites of the respective courts. Therefore, the amendments passed by parliament to dilute the provisions of asset disclosure under the Lokpal Act, are against the objective and scheme of the Lokpal which is to provide transparent governance and combat corruption.
The Supreme Court in PUCL vs UoI (2003) comprehensively examined the plea of the spouse of a public servant that public disclosure of income earned and assets owned by her, merely by virtue of her being a spouse of a public servant, would constitute a violation of her right to privacy as a private citizen. The supreme court had held: “It has been contended with much force that the right to information made available to the voters/citizens by judicial interpretation has to be balanced with the right of privacy of the spouse of the contesting candidate and any insistence on the disclosure of assets and liabilities of the spouse invades his/her right to privacy which is implied in Article 21. After giving anxious consideration to this argument, I am unable to uphold the same…By calling upon the contesting candidate to disclose the assets and liabilities of his/her spouse, the fundamental right to information of a voter/citizen is thereby promoted. When there is a competition between the right to privacy of an individual and the right to information of the citizens, the former right has to be subordinated to the latter right as it serves larger public interest. The right to know about the candidate who intends to become a public figure and a representative of the people would not be effective and real if only truncated information of the assets and liabilities is given. It cannot be denied that the family relationship and social order in our country is such that the husband and wife look to the properties held by them as belonging to the family for all practical purposes, though in the eye of law the properties may distinctly belong to each of them. By and large, there exists a sort of unity of interest in the properties held by spouses. The property being kept in the name of the spouse benami is not unknown in our country. In this situation, it could be said that a countervailing or paramount interest is involved in requiring a candidate who chooses to subject himself/herself to public gaze and scrutiny to furnish the details of assets and liabilities of the spouse as well.”
The need for a thorough financial disclosure regime, which entails disclosing assets of not just the public servant but also the spouse and dependent children, is globally recognised as an important element in an anti-corruption framework. Countries including South Africa, the USA, Philippines, South Korea, Ireland, New Zealand, Belize, Brazil, Chile, El Salvador, Guatemala, Guyana, Honduras, Jamaica, Mexico, Nicaragua, Trinidad and Tobago, Venezuela, Kenya, Tanzania, Uganda, Nigeria, Australia, Thailand, Lithuania and Romania, to name just a few, require disclosure of financial details of not just the public servant, but also, his/her spouse and dependent children. Similarly, several countries, including the Nordic countries, which have among the lowest incidence of corruption globally, require asset disclosure information to be made publicly available, most commonly through the internet. Other countries which also publicly disclose asset declarations of public servants include Portugal, Germany, the United Kingdom, Australia, Belgium, Canada, Finland, Ireland, Bulgaria, Croatia, Estonia, Georgia, Hungary, Latvia, Lithuania, Romania, Slovakia, Cape Verde, Republic of Central Africa, South Africa, Belize, Brazil, Chile, Jamaica, Nicaragua, Canada and South Korea.
Therefore, despite overwhelming public interest in detailed public disclosures of assets of public servants as was envisaged in the in the Lokpal Act, the parliament has diluted this key provisions by passing the Lokpal Amendment Bill 2016.
Bhardwaj works on issues of transparency and accountability and is associated with Satark Nagrik Sangathan and the National Campaign for Peoples’ Right to Information.