1. Right To Information Act And Public Authorities

What is a Public Authority under RTI act?

• Section 2(h) of the RTI Act states that “public authority” means any authority or body or institution of self- government established or constituted-

• By or under the Constitution;

• By any other law made by Parliament;

• By any other law made by state legislature;

• By notification issued or order made by the appropriate Government, and includes any—

• Body owned, controlled or substantially financed (The RTI Act does not define substantial financing. Consequently, courts are often required to decide whether a particular form and quantum of financial aid constitutes substantial finance.)

• Non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government.

• The RTI Act empowers citizens with the right to access information under the control of ‘public authorities’ and imposing penalties on officials of public authorities for failing to disclose ‘information’ defined in Section 2(f).

• The RTI Act also mandates that “every public authority shall pro-actively disclose information pertaining to it, and maintain its documents and records to facilitate the right to information under the Act.

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1.1. BCCI as Public Authority

• Mukul Mudgal Panel for drafting National Sports Development Bill, 2013 and Justice R.M. Lodha suggested bringing BCCI under purview of RTI.

• Supreme Court in ‘BCCI vs Cricket association of Bihar & others’ asked LCI to examine whether it should be covered under RTI. LCI recommended its inclusion under RTI as:

• BCCI can be classified as a limb of State within the meaning of Article 12 of the Constitution because government does exercise control over its activities and functioning say requirement of approval for cricket matches between India and Pakistan in view of tense international relations.

• It also shall be deemed “Public Authority” because its functions are of public nature and it receives ‘substantial financing’ from appropriate Governments over the years (in the form of tax exemptions, land grants etc.).

• It is the “approved” national level body holding virtually monopoly rights to organize cricketing events in the country. It also selects the Indian cricket team.

• It virtually acts as National Sports Federation and like all other sports bodies which are listed as NSFs BCCI should also be covered under the RTI Act and the act should be made applicable to all of its constituent member cricketing associations.

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1.2. Political Parties as Public Authorities

• 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. (The 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.

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1.3. Arguments in favour of bringing Political parties under RTI

• Need to ensure Transparency in Funding-

• According to Association for Democratic Reforms, between FY 2004-05 and 2014-15 only 31.55% of the total income of political parties was through voluntary contributions/donations and for the rest 68.45% they have evaded declaring any details by exploiting section 29C of the Representation of the People Act, 1951 which exempts them from declaring any donations below Rs 20,000.

• Crony capitalism - From FY 2004-05 to FY 2014-15, six national parties have declared receiving 88% of the Central Information Commission (CIC)

• CIC set up under the Right to Information Act is the authorised body, established in 2005, to act upon complaints from those individuals who have not been able to submit information requests to a Central Public Information Officer or State Public Information.

• It includes 1 Chief Information Commissioner (CIC) and not more than 10 Information Commissioners (IC) who are appointed by the President of India.

• The jurisdiction of the Commission extends over all Central Public Authorities.

• When it comes to the RTI Act, the Central Information Commission is the only appellate authority which may declare a body as public authority if it is convinced that the organisation fits into the criteria for being under the Right to Information Act. their total donations in excess of Rs 20,000 crore from corporate or business houses which is not without any quid pro quo for the corporates.

• Black money -According to ADR, 34% of the donations have been received with no address or any other detail of the donor, and 40% donations have been received with no PAN details.

• Illicit foreign contributions:

• National parties have been accepting foreign contributions

• despite The Foreign Contribution (Regulation) Act (FCRA), 1976, prohibited political parties from accepting contributions from foreign companies or companies in India controlled by foreign companies.

• Political parties are vital organs of the State- According to CIC, critical role played by these political parties point towards their public character. They perform functions like government bodies and they have monopoly over selection of candidates, who will ultimately form the government. Therefore, they cannot escape the scrutiny by the common people of their functioning.

• Political parties are public authorities-The CIC held that political parties enjoy various benefits directly or indirectly like land for offices of political parties on concessional rates, allotment of free time on Doordarshan/All India Radio and supplying electoral roll copies free of cost during elections hence they are 'public authority' under section 2(h) and answerable under the RTI Act.

• Larger Public Interest: The disclosure of the information is in larger public interest. Even 170th report of 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

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1.4. Arguments against bringing Political parties under RTI

• Obstruct party functioning: Political parties cannot disclose their internal functioning and financial information under the Right to Information Act as it will hamper their smooth functioning

• RTI can be a tool of misuse: RTI can become a weak spot and rivals with malicious intentions may take advantage of RTI.

• Not 'public authorities': Political parties are not established or constituted by or under the Constitution or by any other law made by Parliament. Even the registration of a political party under the 1951 Act was not the same as establishment of a government body.

• 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.

• Information in public domain: Government holds the view that information about a political body is already in the public domain on the website of the Election Commission.

• Not envisaged in the RTI Act -According to the Department of Personnel and Training (DoPT) when the RTI Act was enacted, it was never visualised that political parties would be brought within the ambit of the transparency law.

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2. Excessive Government Litigations

Challenges in dealing with government litigations

• Government litigation being an encounter of unequals, where an ill-equipped individual person or entity is pitted against a massive government machinery with its limitless resources.

• Lack of adequate and reliable data: After the 126th Law Commission of India report, no actual estimate of costs or comprehensive litigation data (regarding number of cases, categories and government department party) has been collated.

• Risk avoiding attitude of bureaucracy: Due to fear of CVC, CBI, they tend to shift the burden of taking risky decisions on judiciary.

• Recently, Supreme Court in a judgement imposed Rs. 1 lakh penalty on the Government for frivolous litigation as similar appeals had already been dismissed earlier by the Court.

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2.1. Implications of frivolous litigations

• Hurts investor’s confidence: As Economic Survey 2017-18 discusses, economic activity is getting affected by high pendency and delays across the legal system. Delays of economic cases (company cases, arbitration cases and taxation cases) in courts are leading to stalled projects, legal costs, contested tax revenues, and consequently reduced investment.

• Adds to the burden of Courts and collaterally harms other litigants by delaying hearing of their cases through the sheer volume of numbers.

• Increase in project costs: Delays in power, roads, and railways projects led to an increase in almost 60% of the project costs.

• Slows down government administrative processes by delaying decision-making on matters that are the subject of litigation.

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2.2. Some features of National Litigation Policy, 2010

• Government must cease to be a compulsive litigant,

• The easy approach "Let the courts decide" must be eschewed and condemned,

• Challenge to the orders of the Tribunal should be an exception and not a matter of routine,

• Proceedings will not be filed in service matters merely because the order of the Administrative Tribunal affects a number of employees,

• It recommends setting up of the national and regional level monitoring system to minimize litigation. “Nodal Officer” in each departments to “actively” monitor litigation and track court cases.

• However, the policy did not become successful due to reasons such as Ambiguity, rhetoric and generic phraseology, absence of adequate data, No measurable outcomes or implementation mechanism, Lack of any form of impact assessment etc.

• Diversion of precious resources: A recent document by the Ministry of Law & Justice, state that the government, including PSUs and other autonomous bodies, are party to around “46%” of the 3.14 crore court cases pending in various courts in the country, making it the biggest litigant in the country. Handling these cases must be using a major portion of taxpayers money.

• Affects ease of doing business: India suffers badly in the World Bank’s Ease of Doing Business rankings primarily because of the conduct by government agencies (regulators) that generates litigation by writing orders, even on closed issues. Even after improvement in India’s rankings, it ranks very low on Enforcing Contracts.

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2.3. Steps taken to reduce pendency

• In 1989, the Department of Public Enterprises set up a “Permanent Machinery of Arbitrators”. Based on this, it directed enterprises that all commercial disputes (excluding disputes on income-tax, customs and excise, later extended also to the railways) should be settled by arbitration, and that this dispute resolution mechanism should be a part of all contractual and tender agreements.

• Adoption of “National Litigation Policy 2010” as part of “National Legal Mission to Reduce Average Pendency Time from 15 Years to 3 Years” to transform government into an Efficient and Responsible litigant. All states formulated state litigation policies after National Litigation Policy 2010.

• An internal portal called Legal Information Management and Briefing System (LIMBS), was created in 2015 with the objective of tracking cases to which the government is a party. As of 11th June 2018, data collected by LIMBS show 2.4 lakh ‘live’ cases.

• In April 2017, the Law Minister called upon each Ministry/Department to chalk out an 'Action Plan for Special Arrears Clearance Drives' to reduce the number of court cases and implement the plan on Mission Mode.

• The Government, in September 2015, proposed a National Litigation Policy for out-of-court settlement of cases among government departments, public sector undertakings and other government bodies. However, no concrete decision has been taken yet in this regard.

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Way Forward

The National Litigation Policy should be revised

• It should address all three stages of dispute, viz. pre-litigation, litigation and post litigation stage.

• It must have clear objectives that can be assessed. Minimum standards for pursuing litigation must be listed out.

• The role of different functionaries must be enumerated and fair accountability mechanisms must be established.

• Consequences for violation of the policy must be clearly provided and a periodic impact assessment programme must be factored in.

• Appointment of a Nodal Officer to regularly monitor the status of the cases in every department at the Joint Secretary Level to coordinate effective resolution of the disputes.

• Promotion of alternative dispute resolution mechanisms to encourage mediation as the preferred form of dispute resolution in service related matters. All agreements to mandatorily include a reference to either arbitration or mediation.

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Suggestions by economic survey 2017-18 may be adopted:

• A Coordinated action between government and the judiciary- a kind of horizontal Cooperative Separation of Powers to complement vertical Cooperative Federalism between the central and state governments-- would address the “Law’s delay” and boost economic activity.

• Judicial capacity should be strengthened in the lower courts to reduce the burden on higher courts. Government must increase its expenditure on the judiciary, improve the courts case management and court automation system, and create subject specific benches.

• Tax departments must limit their appeals, given that their success rate is less than 30% at all three levels of judiciary (Appellate Tribunals, High Courts, and Supreme Courts).

• Courts could consider prioritising stayed cases and impose stricter timelines within which cases with temporary injunctions may be decided, especially when involving government infrastructure projects.

• Solutions unique to each litigation prone department need to be identified: For instance - robust internal dispute resolution mechanisms for service related disputes within each department will inspire confidence among employees.

• Quasi-judicial authorities should be judicially trained or a separate class of judicial officers to discharge quasi-judicial functions should be created.

• The bureaucracy should be sufficiently motivated to tackle the issues.

• A major recommendation of the 100th Law Commission of India (LCI) report was to set up a ‘litigation ombudsman’ in each state to manage and handle government litigation. Similarly, the 126th LCI report recommends the creation of a grievance redressal system within departments, specifically to manage disputes between the government-employer and its employees.

• Step by step online dispute resolution must be adopted as done by Ministry of Consumer Affairs on a pilot basis for e-commerce related disputes. The ministry has established an Online Consumer Mediation Centre with the motto ‘Anytime Anywhere Dispute Resolution’, for mediation services for consumer disputes in e-commerce.

• Conducting a thorough 100-percent audit of all pending appeals filed by regulators to decide what ought to be withdrawn, would be a good way to start.

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3. Revision Of Rajya Sabha Rules

3.1. About rules of procedure

• Article 118(1) of the Constitution gives the two Houses of Parliament the power to make rules to regulate their functioning.

• Thus, both houses have their own rules of procedure that govern various functions of the house including meetings, summons to members, oaths, sitting of council, election of deputy chairman, arrangement of business, etc.

• These rules are the bulwark of our parliamentary democracy. For Parliament to be effective in its role, these rules require regular updating and strengthening.

• However, even after various amendments, in some cases, the provisions were merely carried forward. For example, the rules to discipline disorderly MPs are the same ones as before.

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3.2. Need for revision of rules

• Frequent disruption of parliamentary proceedings - Over 120 working hours of a total of 165 were lost during the Budget session. Thus, there is a need to devise solutions for protecting the sanctity of parliamentary proceedings.

• Increasing complexities and technicalities of the issues before Parliament - In such an environment, the committee’s suggestions for strengthening deliberations in the House will be crucial.

• Need to balance completion of government business with discussions raised by other political parties – As of now, the two Houses of Parliament meet mostly for transacting government business.

• Need to overhaul accountability mechanisms - The existing mechanisms, like Question Hour, for securing the government’s accountability to Parliament have lost their edge.

• Reducing the difference in two houses - There are differences in provisions of Lok Sabha and the Rajya Sabha Rules in certain matters.

• The two Houses of Parliament are responsible for the formulation of laws in the country thus being the basis of Democracy. Their better functioning requires better management, which in turn is a result of updated and well laid out set of rules for the functioning.

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4. Role Of Governor In Hung Assembly

4.1. More about the news

• It came under question that whether Governor should call single largest party to form the government and prove its majority in the House or a post-poll alliance to form a majority that overcomes the single largest party and form the government

• Article 164(1) provides for the appointment of chief minister by governor. Supreme Court clarified that there is no qualification mentioned in article 164(1) and reading it with collective responsibility in 164(2), the only condition chief ministerial candidate need to satisfy is that he/she should be commanding majority in the house.

• But this discretionary power is being misused by governors. It may encourage horse trading of MLAs, defections against the spirit of tenth schedule and decline in public trust in the office of Governor.

• In case of Goa, Manipur and Mizoram, the single largest party was not given preference to form the government unlike in Karnataka. Thus, raising question mark on the role of Governor and also forcing Supreme Court to take cognizance of the issue.

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4.2. Suggestions

• Sarkaria Commission and a constitutional bench judgement in Rameshwar Prasad v Union of India, 2005 held that:

• The party or combination of parties with widest support in the Legislative Assembly should be called upon to form the Government.

• If there is a pre-poll alliance or coalition, it should be treated as one political party and if such coalition obtains a majority, the leader of such coalition shall be called by the Governor to form the Government.

• In case no party or pre-poll coalition has a clear majority, the Governor should select the CM in the order of preference indicated below:

• The group of parties which had pre-poll alliance commanding the largest number.

• A post-electoral coalition with all partners joining the government.

• A post-electoral alliance with some parties joining the government and the remaining supporting from outside.

• M MPunchhi Commission elaborated that the governor should follow “constitutional conventions” in a case of a hung Assembly.

• While SR Bommai case related to discretion of Governor does not apply to hung assembly but it laid emphasis on floor test in the house within 48 hours (although it can be extended to 15 days) so that legislature should decide the matter and Governor’s discretion should merely be a triggering point.

• The Governor must be true to the oath of office and must ensure that the person he/she invites to be Chief Minister will be able to form a responsible and reasonably lasting government in the State. Even Dr. B.R. Ambedkar in his speech described how a Governor should use his discretion not as “representative of a party” but as “the representative of the people as a whole of the State”.

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5. ELECTRONICALLY TRANSMITTED POSTAL BALLOT SYSTEM (ETBPS)

5.1. More about ETPBS

• It was developed by the Election Commission with the help of Centre for Development of Advanced Computing (C-DAC) to provide an alternative method of quick dispatch of Postal Ballot paper electronically (earlier delivered by post) to the entitled Service Voters.

• It uses QR codes for uniqueness of the Service Voters and the secrecy in transmission is ensured by the use of OTP and PIN.

• The postal ballots are delivered in electronic data format to voters on a real time basis. The voters can download the postal ballot and votes so cast would be received by the returning officer through post.

• It was first used in Nellithope by-elections in Puducherry in 2016.