Transparency law

Unit : 1 citizen charter:

The citizen’s charter is a document that outlines the service commitment of organizations or
service providers towards providing quality, high-standard services, including mechanisms for
grievance redressal. In this article, you can read all about the citizen’s charter – its importance,
principles, features, components, criticisms, etc.

Introduction

The Citizen’s Charter is a voluntary and written document that spells out the service provider’s efforts
taken to focus on their commitment towards fulfilling the needs of the citizens/customers.

 It also includes how citizens can redress any grievances.

 It includes what the citizens can expect out of the service provider.

 The concept is that the charter preserves the trust between the service provider and the
citizens/users.

The concept of a citizen’s charter was initiated by former British Prime Minister John Major in the year
1991. It was started as a national program intended to improve the quality of public services. In 1998, in
the UK, the concept was renamed ‘Services First’.

Objective

In any nation, there is a need of good governance for sustainable development, both economic and
social.

The three major aspects highlighted in good governance are transparency, accountability and
responsiveness of the administration.

Citizens’ Charters initiative is a response to the mission for solving the problems which a citizen meets,
day in and day out, while dealing with the organisations providing public services.

The charter is the declaration of commitment to superiority in service to customers of the department.
The citizen charter declares the standards for various services offered. It includes expectations of the
Organisation from the Citizens for fulfilling its commitment. Citizen charter is available on India post
website.

The concept of Citizens’ Charter protects the trust between the service provider and its users.

Citizens’ Charter was first expressed and implemented in the United Kingdom by the Conservative
Government of John Major in 1991 as a national programme with aim to constantly improve the quality
of public services for the people of the country so that these services respond to the needs and wishes
of the users.

Importance of Citizen’s Charter

1. To make administration accountable and citizen friendly.

2. To ensure transparency.

3. To take measures to improve customer service.

4. To adopt a stakeholder approach.

5. To save time of both Administration and the citizen.

Objective of the Citizens’ Charter

Fundamental objectives of Citizens’ Charter are as follows:

Goal of Citizens’ Charter is to empower the citizen in relation to public service delivery.

Six principles of the Citizens’ Charter movement as originally framed were:

1. Quality: Improving the quality of services

2. Choice: Wherever possible

3. Standards: Specify what to expect and how to act if standards are not met

4. Value: For the taxpayers’ money

5. Accountability: Individuals and Organisations

6. Transparency: Rules/ Procedures/ Schemes/Grievances

Later on, these were elaborated by the Labour Government as following nine principles of Service
Delivery (1998):

1. Set standards of service

2. Be open and provide full information

3. Consult and involve

4. Encourage access and the promotion of choice

5. Treat all fairly

6. Put things right when they go wrong

 7. Use resources effectively

8. Innovate and improve

9. Work with other providers

10. The Indian Scenario

Since many years, in India, noteworthy progress has been made in the field of economic development.
This, along with a considerable increase in the literacy rate, (from 51.63% to 65.38% in the last decade)
has made Indian citizens increasingly aware of their rights.

Citizens have become more articulate and expect the administration not merely to respond to their
demands but also to anticipate them. It was in this climate that since 1996 a consensus had evolved in
the Government on effective and responsive administration.

Department of Administrative Reforms and Public Grievances in Government of India (DARPG)

initiated the task of coordinating, formulating and operationalising Citizens’ Charters.

Guidelines for formulating the Charters as well as a list of do’s and don’ts were communicated to various
government departments/organisations to enable them to bring out focused and effective charters.

For the formulation of the Charters, the government agencies at the Centre and State levels were
advised to constitute a task force with representation from users, senior management and the cutting
edge staff.

Principally, an adaptation of the UK model, the Indian Citizens’ Charter has an additional constituent of
‘expectations from the clients’. Involvement of consumer organisations, citizen groups, and other
stakeholders in the formulation of the Citizens’ Charter is highlighted to confirm that the Citizens’
Charter fulfills the needs of the users.

Regular monitoring, review and evaluation of the Charters, both internally and through external
agencies, are commanded.

Till April, 2006, 111 Citizens’ Charters had been articulated by the Central Government Ministries/
Departments/ Organisations and 668 Charters by various agencies of State Governments &
Administrations of Union Territories.

Most of the national Charters are posted on the government’s websites and are open to public scrutiny.
The organisations with Citizens’ Charters are advised to give publicity to their Charters through such
means as print/ electronic media and awareness crusades.

Salient Features of a Citizen’s Charter

The salient features of a Citizen’s Charter are:

1. Agreed and published standards for service delivery;

 2. Openness and information about service delivery;

3. ‘Choice’ and Consultation with users;

4. Courtesy and helpfulness in service delivery; and

5. Provision of redressal of grievances.

Let us elaborate these points:

Standards: The Charter should lay out explicit standards of service delivery so that users understand
what they can reasonably expect from service providers. These standards should be time‐bound,
relevant, accurate, measurable and specific. The actual performance vis‐à‐vis the standards adopted
must be published and independently validated. The tendency among organizations to develop targets
and standards based on their own convenience as opposed to the needs of the citizens must be avoided.

Information and openness: A key attribute of good service is the availability of relevant and concise
information to the users at the right time and at the right place. The Charters should contain, in plain
language, full and accurate information about services available, levels and quality of service to be
expected, available channels for grievance redressal etc. Handbooks, guides, posters, websites are some
of the channels through which information can be provided to citizens.

Choice and consultation: The Charter should provide choice of services to users wherever practicable.
There should be regular and systematic consultation with the users of the service to fix service
standards and to ascertain quality of service delivery.

Courtesy and helpfulness: The Charter can help embed a culture of courteous and helpful service from
public servants. In addition, small initiatives such as ‘name badges’, ‘May I help you’ counters etc. can go
a long way in building customer confidence.

Grievance redressal and complaints handling: There is a strong link between the provision of quality
service and effective handling of complaints. Firstly, by facilitating and responding to complaints, the
causes for complaint can be reduced. Secondly, by identifying ‘trends’ in complaints, the service
provider can resolve systemic and recurring problems.

Problems faced in implementing the Charters

As indicated, the Citizens’ Charters initiative in India had started in 1997 and the Charters formulated
are in embryonic stage of implementation. Introduction of a new thought is always difficult in any
organisation. Introduction and implementation of the concept of Citizens’ Charter in the Government of
India was much more complicated due to the old bureaucratic set up/procedures and the rigid attitudes
of the work force.

The major obstacles encountered in this initiative were:

 1. The general perception of organisations which formulated Citizens’ Charters was that the
exercise was to be performed because there was a direction from the top. The consultation
process was minimal or largely absent. It thus became one of the routine activities of the
organisation and had no focus.

2. For any Charter to thrive the personnel responsible for its implementation should have proper
training and orientation, as commitments of the Charter cannot be expected to be delivered by
a workforce that is unaware of the spirit and content of the Charter. However, in many cases,
the concerned staff was not sufficiently trained and sensitised.

3. Sometimes, transfers and reshuffles of concerned officers at the critical stages of

formulation/implementation of a Citizens’ Charter in an organisation severely destabilised the
strategic processes which were put in place and hampered the progress of the initiative.

4. Awareness campaigns to teach clients about the Charter were not conducted systematically.

5. In some cases, the standards/time norms of services mentioned in Citizens’ Charter were
either too negligent or too tight and were impractical and created an unfavourable impression
on the clients of the Charter.

6. The notion behind the Citizens’ Charter was not accurately understood. Information brochures,
publicity materials, pamphlets produced earlier by the organisations were mistaken for Citizens’
Charters.

Deficiencies in the Existing Citizens’ Charters

1. Lack of awareness and knowledge and inadequate publicity, hence loss of trust among service
seekers

2. No training to the operative and supervisory staff

3. Lack of infrastructure and initiative

4. Hierarchy gap between the Officers and the Operative Staff-Need of team effort

5. Different mind-sets of officers and the Staff- Insensitiveness on the part of the Supervisors and
the Staff because they are yet to be sensitized

6. Staff is not prepared to shoulder the responsibility due to lack of motivation and accountability

7. Non-revision, complicated and restrictive rules & procedures

Guidelines for the Citizens’ Charters in India

1. List all Offices according to type of services they provide to public – Indicate their location,
areas they cover, type of services being rendered to public, and phone numbers.
 2. There should be a separate Citizens’ Charter (i.e., Local Citizens’ Charters) for each office
covering the services they provide. For example, there should be a separate Charter of the
Directorate, its subordinate offices, Hospitals, Schools, etc. according to the particular services
they provide.

3. Mention Service Standards – Step-by-step-Procedure based on ‘Where to go; how to proceed’,

simple and easy to fill-in Forms, specimen of duly-filled in forms, documents, fees, etc. required,
reasonable time schedule, Do’s & Don’ts, etc., names, addresses and Tele. Nos. of concerned
Officials, his alternate for each service, etc.

4. Minimum documentation, self-attestation and self-declaration.

5. No duplication – In case desired information and document submitted earlier like proof of
residence (if there is no change), birth certificate, etc., it should not be asked again.

6. If promised services are not provided as per specified time schedule, an effective grievance
redressal mechanism (including the provision of compensation to the concerned citizen in order
to introduce accountability) should be introduced.

7. Provision of TATKAL (Immediate) Services if somebody is in urgent need (as in the case of
Passport, Railways, etc.) to avoid touts, bribery, etc.

8. Simultaneous changes in the Performa and other requirements to be effected along with the
changes made in the Citizens Charter.

9. Database of frequently required information, like ownership of property, vehicle, etc., tax and
dues paid or pending, etc.

10. If possible, the services and their related information may be presented in a tabular form.

11. Salient features of each service should be prominently displayed in simple and easy language at
all places likely to be visited by the service seekers.

Prevention of corruption act: UNIT-II

If we cannot make India corruption-free, then the vision of making the nation develop by 2020
would remain as a dream." - Dr. A.P.J.Abdul Kalam
Corruption is considered to be one of the greatest impediments on the way towards progress
for developing country like India. The economic, social and cultural structure of our country is
very strong; however, due to the menace called- Corruption, it has been adversely affected and
has become defenseless against the forces of anti-social elements.

According to Shri N.Vittal, Former Chief Vigilance Commissioner, the first stage in the dynamics
of the rule of law is the framing of effective rules and laws, which are equipped to hinder the
ever-rising escalation of the corruption graph. It is in this context that the Prevention of
Corruption Act, 1988 becomes highly significant.

Genesis:-
The Prevention of Corruption Act, 1988 (henceforth referred to as PCA) came into force on 9th
September, 1988. it incorporated the Prevention of Corruption Act, 1947, the Criminal Law
Amendment Act, 1952, and sec. 161 to 165-A of the Indian Penal Code with modifications,
enlarged the scope of the definition of the expression 'Public Servant' and amended the
Criminal Law Amendment Ordinanc,k1944. The PCA, 1988l, thereby widened the coverage,
strengthened the provisions and made them more effective.

The Prevention of Corruption Act, 1988:-

A] Definitions:
The most important definitions are that of :
- Public duty
- Public servant

1) Public Duty: It means a duty that is dine for the benefit of the State, the public or the
community at a large. It this context, State would mean:
a) A corporation established by or under a Central, Provincial or State Act.
b) An authority or a body owned controlled or aided by the Government company as defined in
Sec. 617 of the Companies Act,1956.

2) Public Servant: It is unique term in Anti-corruption law, being the deciding factor at the
threshold, of one's liability, depending on his being public servant. The term 'Public Servant'
was not defined under the PCA, 1947 and the Act adopted the definition of the term under sec.
21 of the Indian Penal Code. The PCA of 1988 provides a wider definition in the Act itself under
clause (c) of sec.2

the following are the salient aspects of the new definition:

a) Under cl (c) of Sec.2 of the PC, the emphasis is on public duty and not on the Authority
remunerating.

b) The definition is enlarged so as to include the office-bearers of the registered co-operative

societies receiving any financial aid from the Government, or from a Government corporation
or company, the employees of universities, public service commissions and banks etc.
The following genres of persons fall within the ambit of 'public servant':
a) Any person who is paid by the government or local authority or remunerated by way of fees
or commission for the performance of or is in the service of a corporation established by or
under a Central, Provincial or State Act, or an authority or body owned or controlled or aided by
the Government company as defined in the Companies Act, 1956.

b) Any Judge or any person authorized by a court of justice to perform any duty, in connection
with the administration of justice or any arbitrator to whom any cause or matter has been
referred for decision or report by a court of justice or report by a court of justice or by a
competent public authority.

c) Any person who holds an office result to which he is empowered to prepare, publish
maintain or revise an electoral roll or to conduct an election or part of an election, or is
authorized or required to perform any public duty.

d) Any person who is the president, secretary or other office bearer of a registered co-operative
society engaged in agriculture, industry, trade or banking, receiving or having received any
financial aid from the Central or State Government or any authority or body owned, controlled
or aided by Government or Government company as defined in Sec. 617 of the Companies Act,
1956.

e) Any person who is a chairman, member or employee of any service commission or Board or a
member of any selection committee appointed by such Commission or Board for the conduct of
any examination or making any selection on their behalf.

f) Any person who is the Vice-Chancellor or member of any governing body, professor, reader
or lecturer of any University and any person whose services have been availed of by a
University.

g) An office-bearer or an employee of an educational, scientific, social, cultural or other

institution receiving or having received any financial assistance from the Central or State
government or local or other public authority.

Explanation 1 states that it is immaterial whether the person falling within the periphery of the
above clauses is appointed by Government or not.
Explanation 2 states that a person who is actually holding the position of the situation of public
servant irrespective of the fact that he might not have th3e right to hold that situation shall be
deemed to be 'public servant'.

B] Power To Appoint Special Judges:

The Central and the State Government is empowered to appoint Special Judges by placing a
Notification in the Official Gazette, to try the following offences:
· Any offence punishable under this Act.
· Any conspiracy to commit or any attempt to commit or any abetment of any of the offences
specified under the Act.
The qualification for the Special Judge is that he should be or should have been a Session Judge
or an Additional Session Judge or Assistant Session Judge under the Code of Criminal
Procedure, 1973

C] Case Trial By Special Judges:

Every offence mentioned in Section 3(1)shall be tried by the Special Judge for the area within
which it was committed. When trying any case, a Special Judge may also try any offence other
than what is specified in S. 3, which the accused may be, under Cr.P.C. be charged at the same
trial. The Special Judge has to hold the trial of an offence on day-to-day basis. However, while
complying with foretasted, it is to be seen that the Cr.P.C. is not bifurcated.

D] Power And Functions Of Special Judges:

The following are the powers of the Special Judge:

He may take cognizance of the offences without the accussed being commissioned to him for
trial. In trying the accussed persons, shall follow the procedure prescribed by the Cr.P.C. for the
trial of warrant cases by Magistrate. he may with a view to obtain the evidence of any person
supposed to have been directly or indirectly concered in or privy to an offence, tender pardon
to such person provided that he would make full and true disclosure of the whole
circumstances within his knowledge or in respect to any person related to the offence.

Except as for S. 2(1), the provisions of Cr.P.C. shall apply to the proceedings before a Special
Judge. Hence, the court of the Special Judge shall be deemed to be a Court of Session and the
person conducting a prosecution before a Special Judge shall be deemed to be a public
prosecutor.

The provisions of secs. 326 and 475of the Cr.P.C. shall apply to the proceedings before a Special
Judge and for purpose of the said provisions, a Special Judge shall be deemed to be a
magistrate."

A Special Judge may pass a sentence authorized by law for the punishment of the offence of
which a person is convicted.
A Special Judge, while trying any offence punishable under the Act, shall exercise all powers and
functions exercised by a District Judge under the Criminal Law Amendment Ordinance,1944.

Power to try summarily: Where a Special Judge tries any offence specified in Sec. 3(1), aleged to
have been committed by a public servanet in relation to the contravention of any special order
referred to in Sec.12-A(1) of the Essential Commodities Act, 1955 or all orders referred to in
sub-section (2)(a) of that section then the special judge shall try the offence in a summarily way
and the provisions of s. 262 to 265 (both inclusive) of the said code shall as far as may be apply
to such trial. Provided that in the case of any conviction in a summary trial under this section
this shall be lawful for the Special Judge to pass a sentence of imprisonment for a term not
exceeding one year. However, when at the commencement of or in the course of a summary
trial it appears to the Special Judge that the nature of the case is such that a sentence of
imprisonment for a term exceeding one year may have to be passed or it is undesirable to try
the case summarily, the Special judge shall record all order to that effect and thereafter recall
any witnesses who may have been examined and proceed to hear and re-hear the case in
accordance with the procedure prescribed by the said code for the trial of warrant cases by
Magistrates. Moreover, there shall be no appeal by a convicted person in any case tried
summarily under this section in which the Special Judge passes a sentence of imprisonment not
exceeding one month and of fine not exceeding Rs. 2000.

E] Offences And Penalties:

The following are the offences under the PCA along with their punishments:-
Taking gratification other than legal remuneration in respect of an official act, and if the public
servant is found guilty shall be punishable with imprisonment which shall be not less than 6
months but which may extend to 5 years and shall also be liable to fine.
· Taking gratification in order to influence public servant, by corrupt or illegal means, shall be
punishable with imprisonment for a term which shall be not less than six months but which may
extend to five years and shall also be liable to fine.

· Taking gratification, for exercise of personal influence with public servant shall be punishable
with imprisonment for a term which shall be not less than six months but which may extend to
five years and shall also be liable to fine.

· Abetment by public servant of offences defined in Section 8 or 9, shall be punishable with

imprisonment for a term which shall be not les than six months but which may extend to five
years and shall also be liable to fine.

· Public servant obtaining valuable thing without consideration from person concerned in
proceeding or business transacted by such public servant, shall be punishable with
imprisonment for a term which shall be not les than six months but which may extend to five
years and shall also be liable to fine.
· Punishment for abetment of offences defined in Section 7 or 11 shall be punishable with
imprisonment for a term which shall be not less that six months but which may extend to five
years and shall also be liable to fine.

· Any public servant, who commits criminal misconduct shall be punishable with imprisonment
for a term which shall be not less than one year but which may extend to 7 years and shall also
be liable to fine.

· Habitual committing of offence under Section 8, 9 and 12 shall be punishable with

imprisonment for a term which shall be not less than two years but which may extend to 7
years and shall also be liable to fine.

F] Matters To Be Taken Into Consideration For Fixing Fine:

Where a sentence of fine is imposed under sec. 13(2) and sec. 14, the court while fixing the
amount for the same shall consider the amount or te value of the property which the accussed
has obtained by committing the offence or where the conviction is for an offence referred to in
sec. 13(1)(e), the pecuniary resource or property for which the accussed is unable to account
satisfactorily.
Investigation:

Investigation shall be done by a police officer not below the rank of:
a] Incase of Delhi, of an Inspector of Police.
b] In metropolitan areas, of an Assistant Commissioner of Police.
c] Elsewhere, of a Deputy Superintendent of Police or an officer of equivalent rank shall
investigate any offence punishable under this Act without the order of a Metropolitan
Magistrate or a magistrate of first class, or make any arrest therefore without a warrant.
If a police officer no below the rank of an Inspector of Police is authorized by the State
Government in this behalf by general or special order, he may investigate such offence without
the order of a Metropolitan Magistrate or Magistrate of First class or make arrest therefor
without a warrant.

H] Previous Sanctions:

Previous sanction is required in following cases:

When an offence is punishable under secs. 7, 10, 11, 13 and 15 of the Act.

In case of a person who is employed in connection with the affiars of the Union or State and is
not removable from his ofice save by or with the sanction of the Central or State Government
as the case may be. In case of any other person, of authority competent to remove him from his
office.

Previous sanction is required, if the court feels that a failure has occured in the
administration of justice, to do the following:
reversal or alteration by the Court of Appeal of any findings, or any sentence or order passed by
a Special Judge. stay the proceedings on the ground of error, omission or irregularity. revision
of any interlocutory order passed in inquiry, trial, appeal or proceedings.

I] Accused: A Competent Witness:

Any person charged with an offence punishable under this Act, shall be a competent witness for
the defense and may give evidence on oath in disproof of the charges made against him or any
person charged together with him at the same trial:
Provided that-
(a) He shall not be called as a witness except at his own request;
(b) His failure to give evidence shall not be made the subject of any comment by the
prosecution or give rise to any presumption against himself or any person charged together
with him at the same trial;

(c) He shall not be asked, and if asked shall not be required to answer, any question tending to
show that he has committed or been convicted of any offence other than the offence with
which he is charged, or is of bad character, unless-
(i) The proof that he has committed or been convicted of such offence is admissible evidence to
show that he is guilty of the offence with which he is charged, or
(ii) He has personally or by his pleader asked any question of any witness for the prosecution
with a view to establish his own good character, or has given evidence of his good character, or
the nature or conduct of the defense is such as to involve amputations on the character of the
prosecutor or of any witness for the prosecution, or
(iii) He has given evidence against any other person charged with the same offence.

J] Appeal And Revision:

The High Court has given all power of appeal and revision that are provided to it through Cr.P.C.
as if the Court of Special Judge were a Court of Session trying cases within the local limits of the
High Court.

Conclusion:-
Corruption is a termite that is eating up the pith of our society it not only hampers the
individual's growth but also the collective growth of our Country. Hence, it stands highly
imperative to control and then stop this growing menace and in this case the Prevention of
Corruption Act,1988 comes to our aid. In fact, the Act has been beautifully drafted, however, a
huge power has been vested in the hands of the Central and State Government in form of
appointment of Special Judges, providing sanctions etc. Hence the Act would become oblivious
if the matter in question is related to Central or State Governments.
The PCA despite of this lacunae is a very powerful Act which needs proper implementation in
order to curb corruption from grass root-level.

Right to information act: UNIT-III

What is the meaning of the word “Right to Information”?
“Right to Information” means the right to information accessible under this Act which is held by or
under the control of any public authority and includes the right to inspection of work, documents,
records, taking notes, extracts or certified copies of documents or records, taking certified samples of
material; obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other
electronic mode or through printouts where such information is stored in computer or in any other
device.

It is the right to obtain information from a public authority which is held or controlled by such authority.
This right extends to every piece of information which has a public nature. Such as :-

 Inspection: means to see a work document or record closely, carefully and purposefully.

 Taking notes: may mean noting down certain information from the documents inspected.

 Certified samples of material: since it is to ensure transparency and to contain corruption, it

authorizes the citizens to take samples from the material being purchased or used by the Public
Authorities.

Historical background: Introduction

The right to information is key to a healthy and transparent democracy because it empowers
the citizens with the right of access to the activities and decisions taken by the government and
its various authorities. India, the largest democracy of the world enacted the National Right to
Information Act, 2005 (RTI Act) which received the presidential assent in June 2005 but came
fully into force on October 12, 2005. The RTI Act of India is considered a standard Act according
to international best practice laws, but its effectiveness will depend heavily on government's
willingness to implement in the true spirit of openness and transparency. The RTI Act is not free
from criticism, as it provides exemptions for the disclosure of sensitive information whose
disclosure could harm important national interest. This clause of the section 8 (1) of the Act
may be misinterpreted and misused by the bureaucrats. However, the implementation of such
an Act will definitely check corruption and create panic among dishonest officers.

At the apex level, Central chief information commissioner is appointed by the Central
Government to look into the effective implementation of RTI Act ia the country. RTI Act
provides every State Government state information commissioner and formulates right to
information rules for providing information to the public and to hear public petitions in this
regard. Each and every government public and private sector offices are required to appoint
public information officers (PIOs) who will process the applications of the public and provide
necessary information within a time frame. The Assistant Public Information Officers are also
appointed to help the day to day functioning of PIOs. The first appellate authority is also
appointed in each office to look after the grievances of the public when public information
officer helps to provide the required information. Since inception, the RTI Act has a favourable
impact on the functioning of Government machinery in India. The success of RTI Act largely
depends on the co-operation of information offices and Information Commissioners in different
states and India. In this context, a sincere attempt has been made here to trace the origin and
brief history of Right to Information Act and to critically analyze its impact on Indian
democracy..

The right to information has originated in many countries since long. The origin and history of
right to information is necessary to understand the requirement for a community. This section
analyses movements for right to information in India in two phases.

Phase I of the Movement for RTI: 1975 to 1990 During this phase the public movements
started for information by the poor unprivileged people who were denied the benefits of
government programmes. The movement for RTI can be traced back to the grass root struggle
of the rural poor, who fought against corruption in their areas affecting their livelihood. The RTI
got the legal support for the first time in 1975 in Supreme Court case of State of Utter Pradesh
vs. Raj Narain (1975) in which Hon'ble Justice Mathew gave a landmark judgment. "In a
Government of responsibility like ours, where all the agents of public must be responsible for
their conduct, there can be but few secrets. The people of this country have a right to know,
every public act, every thing that is done in a public act, every thing that is done in a public way
by the public functionaries. They are entitled to know, the particulars of every public
transaction in all its bearing. Their right to know, which is derived from the concept of freedom
of speech, though not absolute, is a factor, which should make one wary when secrecy is
claimed for transactions which can at any rate have no repercussion on public security," In
1978, RTI was sought for exercising certain suggestions

and objections to the Motor Vehicle Act in Gujarat. The state government refused to part with
information stating that it was confidential under the Official Secrets Act, 1923, a legacy of
British India. The RTI however, took to the ground in another landmark judgment in 1981 by
Attorney General Soli Sorabjee in S.P. Gupta vs. Union of India case where the Hon'ble court
declared that, "the concept of an open government is direct emanation from the right to know
which seems to be implicit in the right of speech and expression guaranteed under Art,
19(1(a)". In 1982, Mathew Commission Report recommended for the amendment of the
Official Secrets Act, 1923 (OSA) which was considered as great impediment in the way of
peoples' right of know and Section 5 of OSA was sought to be suitably amended. In 1989 V.P.
Singh's National Government came to power and declared its decision to make RTI a
fundamental right. In April 1990 in the 20th conference of Ministers of Information and
Cinematography he expressed an open system of governance is an essential pre-requisite for
the fullest flowering of democracy. Free flow of information from the government to the
people will not only create an enlightened and informed public opinion but also render those in
authority accountable.

Phase II of the Movement for RTI: 1990 to 2005

After 1990 the demand for RTI got intensified and took the shape of a mass movement. A
struggle for the same reason came alive when Mazdoor Kisan Shakti Sangathan (MKSS), a NGO
of Rajasthan stirred national conscience through a unique movement for justice in wages,
livelihoods and land concerning various districts of Rajasthan. They asked for copies of bills and
vouchers and the muster rolls for payment on the constructions of schools, dispensaries, small
dams and community centre. On paper such developmental projects were complete but
actually involved with lot of misappropriation of funds as the School buildings were without
roof, dispensaries without walls, dams left incomplete and community centre without doors
and windows. In 1994 MKSS introduced, breaking new ground for experimenting, fighting
against corruption through the methodology of public hearings. The response to this was
tremendous. The experience of MKSS, its members and its beneficiaries was that by adopting
this methodology the officials were afraid of the public wrath or damage to their career or their
public image. The MKSS and other organization worked for organizing people and enlightening
them about their rights though most of the time they had to face obstinate bureaucracy and
recalcitrant local government representatives information. who refused to supply information.

In 1995, the Press Council of India drew up the first blueprint for a Freedom of Information Bill.
It asserted that information which could not be denied to Parliament or State legislature should
not be denied to a citizen. In 1997 the government of India decided to introduce the freedom of
information legislation. It suggested that each state do likewise, to provide access to
information, as a result, several states executed orders to implement this right. In 1997 itself, a
working group under the chairmanship of consumer activist H.D. Shourie presented another
draft. With development of grass root movements, judicial recognition of the right to know and
some amount of internal pressure through successive committed governments led to the
passage of law in the last decade, In July 2000, the Freedom of Information Bill, 2000 was finally
introduced, in Parliament. Some state government also passed their own laws and
administered instructions in last few years. However there is a variance between the demands
of people and laws by the people. The freedom of information bill passed by the Parliament
evoked intense debate on the terminology of right to information and freedom of information.
However freedom of Information Act came into force in 2002. And now the central Right to
Information Act has been executed.

Right to Information: Challenges

The implementation of right to information and its success to make the governance more
transparent has many challenges. Firstly, it is a challenge to deal with and to remove the
shortcomings of the present law and its implementation. This is because many states in India
have their own laws of information which may not be a platform to improve their governance
and legal formulations. Secondly, persistent lack of action and delay by the authorities in case
of non availability of required information is a major challenge in India. Thirdly, the public
information officers (PIOs) and appellate authorities may not work sincerely to provide
information and they may harass the person seeking information. It may not be possible on the
part of the person to always apply to the information commission at State Capitals. Fourthly
appointment of IAS officers and bureaucrats as Chairman and Commissioner of information
commission is a question on success of RTI Act.

Of course, it took 77 years for us to transform from a system legitimized by the colonial official
secrets Act to one where citizens can demand information as a matter of their right. The
absence of communication tools and low levels of literacy compounded the poor flow of
information. With offices full of dusty files all over, the standard of keeping records is very poor.
But the growth of information technology has now made things easier and many states are
competing with each other to attract more investment with open window systems. We have
entered into another era of democracy where everything is transparent. In India, the
movement for the right to information has been vibrant for a long time. The common man, the
academician and the media have been raising the voice for the basic and survival needs like
food security, shelter and employment which are closely linked to the right to information.

Right to Information and Democracy

 Freedom of expression and right to information are considered as integral concepts and
requirements in modern democracy. Since the last two decades there has been a global trend
towards the recognition of right to information and freedom of expression among the people of
al: countries and intergovernmental organizations. In a democratic framework, the greater is
the access to information, the dearer the responsiveness of government to the needs of the
community. The right to information and freedom of expression has been recognized as
fundamental human rights to uphold the dignity of all human beings. Free speech is protected
by international human rights law, under Article 19 of the Universal Declaration of Human
Rights. India, the largest democracy in the world in every sense of the term, the enactment of
the Freedom of Information Act 2002, marks a significant step towards our goal and success of
democracy.

However, at the same time, every citizen of the country should keep in mind that the freedom
of expression and right to information are not unlimited. Government has all the rights to
prohibit and suppress certain damaging types of expressions and information. Government is
the guardian and it is the head of a large national family. Expression or information should be
legitimate and pro-public interest. Every individual, as a family member, should not say or seek
anything and everything from the guardians or brothers or sisters. The information or
expression should be provided by law, for every family has its own rules and regulations to
follow. Every person should keep in mind the protection of the rights and reputations of others
and the protection of national security, public order, health and morals

The demand for freedom of speech and expression was raised for the first time in the history of
democracy by theAthenian orator Socrates (B.C. 436-386), who committed suicide after his
country was defeated and conquered by Philip of Macedon at the Battle of Chaeronea. His
immortal speech Logos Areopagicos "was a strong plea for restoring democracy and freedom of
expression in Athens. In modern times imposing restrictions on freedom of expression and
suppression of information was initiated by the British, claimed to be the creators of modern
parliamentary democracy. The much famed 'Long Parliament' of the United Kingdom (1640-60),
which carried out the executions of a number of aides of the emperor of the empire of never
setting sun, issued ordinances prohibiting free speech for the first time in the history of human
civilization. The Parliament ordered, it is therefore ordered by the lords and commons in
Parliament, that no order or declaration or both, of either house of Parliament shall be printed
by any but by order by both the houses". This order of the British democracy led John Milton,
the most famous epic poet of modern times, to issue the classic pamphlet in 1644, pleading for
the restoration of basic fundamental rights. Now people remember the ordinance of the British
Parliament only because of the pleas against it.

Right to information is as crucial as freedom of expression in any democracy. It is only through

information and resultant expressions that people can influence the Government of the people,
for the people and by the people. It is essential for the discovery of truth and transparency.
Many critics of the right to information argue that it is wrong to assume that information, even
if it is right in every sense, can create mayhem and havoc. Of course, there are instances in
history where people swayed by emotions rather than reason, and even if truth ultimately
prevails enormous harm can occur in the interim. The other side argues that the suppression of
knowledge and restrictions on expressing that knowledge can do greater harm to public
interest. It is an essential aspect of autonomy and individuality, as every individual has an
inclination towards autocracy, whether in public life or in private. It helps and adds momentum
to the political process and helps in achieving the age old Bharatiya concept of "Vasudhaiva
Kutumbam". Suppressing or hiding information can ruin a family, relationships or individuals
with each other and the same is applicable also to a nation.

Right to Information: International Scenario

At international level many countries have their information laws in which citizens are provided
access to any inside the country. After globalization, information has become necessary for
citizens to know the programmes and policies properly. The United Nations has recognized
freedom and right to information as a fundamental right. It includes the right to seek, receive
any information. Sweden is the first nation to have a legislation on Right to Information in the
form of Freedom of Press Act, which requires the disclosure of official documents upon
request, followed by USA (1966), Australia (1982), Canada (1983), Japan (1999) and India
(2005). According to statistics more than 40 countries have comprehensive laws to facilitate
access to state records. The collapse of authoritarian states since the 1960s and emergence of
new democracies and technologies and information revolution provided a new sense on the
right to information among the people. Modern consumerism also played a vital role.
International bodies like World Bank and International Monetary Fund and other market
players are also pressing nations to be more transparent in their dealings. In a global economy
things should be transparent. And people naturally have a right to know about what is
happening to their lives and in the society in which they live.

Conclusion
RTI Act has been enacted in India in 2005 after a long civic battle and social movement. The
success of this Act depends on co-operation and awareness of the public, PIOS and Information
Commissioner and other authorities. Undoubtedly, it will bring a vibrant democracy in India if it
is successfully implemented to reduce corruption and bribing in our economy. If the
Government will moves towards adopting the policy of providing information rather than
seeking information by the public, the country can move towards a culture of absolute
transparency. Rather than people asking for information by making applications under the Right
to Information Act, the governments should make efforts to provide as much information to
the people on its own. The efforts of the new Food Commissioner of Delhi in this regard are
worth emulating. Through an order, he has thrown open the records of all the shop owners of
Delhi for public inspection. Now, one does not need to file an application under the RTI Act.
Anyone can walk into any of the offices of the Food Department between 2.00 pm to 5.00 pm
on the first and third Saturday of the month and inspect these records. Such efforts need to be
replicated in all other government departments. RTI is a necessary condition to provide just and
accountable government. However, it is not a sufficient condition. Much more would need to
be done. But RTI is definitely the first concrete step in the right direction.

Topic 2

Right to information and obligation of public authorities:

Introduction The definition of ‘public authorities’ under the Right to Information Act, 2005 (“RTI Act”)
has been an extremely contentious issue since the RTI came into force. However, in the wake of an
order of the Central Information Commission (“CIC”) declaring political parties as public authorities
under the RTI Act1, the issue has taken centre stage in public debates. The Central Government sought
to undo the CIC decision by proposing to amend the definition of Public Authorities to exclude political
parties. This amendment has now been referred to a Parliamentary standing committee.2 This
development affords an important opportunity to examine the definition of public authorities, and
controversies arising from its interpretation. The specific focus of this brief is on a sample of cases that
were brought to the High Courts. The RTI Act empowers citizens with the right to access information
under the control of ‘public authorities’.3Accordingly, RTI Act creates a legal framework to make good
this right by defining public authorities,4allowing citizens to ask public authorities for information,5 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”.6 Therefore the question of “who is a public authority?” is critical one because it sets the
boundaries of the scope of the RTI Act specifically and the transparency regime in the country, more
generally. In the last seven years, a wide variety of entities otherwise considered to be private entities
(such as schools, colleges and sports associations) have been declared public authorities, and have had
to comply with the requirements of the RTI Act. A perusal of judgments of High Courts and the CIC
reveals a diverse and at times, conflicting jurisprudence regarding the ambit of ‘public authorities’ under
the RTI Act.

Definition of “public authority” “Public authority” is defined in Section 2(h) of the RTI Act. It states:
“public authority” means any authority or body or institution of self- government established or
constituted—

(a) by or under the Constitution;

(b) by any other law made by Parliament;

(c) by any other law made by state legislature;

(d) by notification issued or order made by the appropriate Government,

and includes any—

(i) body owned, controlled or substantially financed;

(ii) non-Government organization substantially financed, directly or indirectly by funds provided by the
appropriate Government;

The Act thus defines public authorities in two parts. The first part of the definition (clauses 2(h)(a) to
(d))clearly delineate bodies created by the Constitution of India (Union and state executives, Election
Commission, etc.), by laws made by Parliament and state legislatures (Central and state universities,
regulators such as RBI, SEBI, TRAI etc.), and by government orders or notifications (Planning
Commission) as public authorities

. The second part broadens the scope of the definition of a public authority to include any body owned,
controlled or substantially financed, and any non-governmental body substantially financed by the
appropriate government. This second part of the definition has been the subject of much controversy
largely because it leaves the question of what constitutes (a) ownership, (b) control or/and (c)
substantial financing open to interpretation. Unsurprisingly therefore, most of the case law related to
the question of public authorities is linked to this aspect of the definition.

Obligations of public authorities: Section 4

Section 4(1) lists the following obligations of public authorities:

1. Maintenance of records: Every public authority is required to maintain all its records duly
catalogued and indexed. In order to facilitate access to its records, the public authority shall
ensure that all the records that are appropriate for computerisation are computerised and
connected through a network across the country on various systems within a reasonable time
frame and according to resource availability.
 2. Publication of certain matters: Every public authority is required to publish certain particulars
within 120 days of the enactment of the Act, some of which are enumerated below:

 the particulars of its organisation, functions, and duties;

 the powers and duties of its officers and employees;

 the procedure followed in the decision-making process, including channels of supervision and
accountability;

 where any arrangement exists for public representation or public consultation in matter of
policy formulation or implementation of policy of public authority, the particulars of such
arrangement;

 Employee directory of such public authority

 Monthly salary given to employees and officers

 Details of budget allocated to its agencies

 Details regarding manner of execution of subsidy programmes

 Details regarding information held in electronic form

 Particulars of facilities available to citizens for obtaining information

 Names and designations of the Public Information Officers etc.

3. While formulating key policies or decisions that affect the public, a public authority must publish
all the relevant facts regarding the same.

4. Every public authority shall provide reasons for its judicial or administrative decisions to those
affected by it.

Suo-moto furnishing of information: Section 4(2)

Section 4(2) provides for the obligation of the public authority to make efforts for providing
information suo moto to the public at regular intervals using various modes of communication.

Dissemination of information: Section 4(3) and 4(4)

Section 4(3) provides for wide dissemination of information in a manner that is easily accessible to the
public.

Section 4(4) provides that the dissemination of information has to be done after considering the
following factors:

1. cost-effectiveness,
 2. local language of an area, and

3. the most effective method of communication in a particular local area.

Designation of Public Information Officers: Section 5

 Section 5(1) provides for the designation of Central Public Information Officers (CPIOs) and State
Public Information Officers (SPIOs) by every public authority within 100 days from the
enactment of this Act. Such officers have a duty to provide information requested under the Act.

 Section 5(2) provides for the designation of Central Assistant Public Information Officer or a
State Assistant Public Information Officer at each sub-divisional level or other sub-district level.
Such officers shall receive applications for information or appeals under the Act for forwarding
the same to the CPIO/SPIO or the senior officer specified under Section 19(1) or the Central
Information Commission or the State Information Commission, as the case may be.

Duty/Function of public information officers

 Section 5(3) provides for the following duties of CPIOs and SPIOs:

1. To deal with requests from the person seeking information, and

2. To provide reasonable assistance to the person asking for information.

Request for obtaining information: Section 6

Manner of making a request for information

Section 6(1) provides for the manner of making a request by a person who desires to obtain any
information under this Act.

 Manner of making requests: In writing or through electronic means.

 Language: English/Hindi/official language of the area in which the application is being made.

 Any fee: Such application shall be accompanied by the prescribed fee.

 To whom application is made: To the CPIO/SPIO of the concerned public authority or to the
Central Assistant Public Information Officer/State Assistant Public Information Officer.

 Contents of application: Particulars of information sought by the applicant.

Conclusion: The extent of the Act is a lot more extensive in its appropriateness than getting limited to
Governments and their instrumentalities and that the Act is proposed to blend the contention between
the privilege of residents to tie down access to data and the need to protect secrecy of sensitive data.
Considering the meaning of 'public authorities', it has been held that as far as, the public authority are
obliged to supply the sought information.
Central Information Commission and State Information Commission:
Information Commissions constituted under the RTI Act are the supreme authority and the highest
decision-making body under the Act. Information Commissions have been constituted at both the
central and state level, known as Central Information Commission(CIC) and State Information
Commission(SIC) respectively.

Sections 12-14 of the Act contain the provisions regarding the constitution, membership, etc. of the
Central Information Commission, whereas, Sections 15-17 deal with the provisions relating to the State
Information Commission.

CENTRAL INFORMATION COMMISSION (CIC) STATE INFORMATION COMMISSION (SIC)

SECTION 12 SECTION 15
Constituted by: Central Government. Constituted by: State Government.
Membership: CIC consists of the following Membership: SIC consists of the following
members:-Chief Information members:-State Chief Information
CommissionerCentral Information CommissionerState Information
Commissioners(Maximum no. of Central Commissioners (Maximum no. of State
Information Commissioners is 10.) Information Commissioners is 10.)
Who shall appoint the members of Who appoints the members of the
Commission: President on the Commission: Governor on the
recommendation of a Committee consisting recommendation of a Committee consisting of
of:Prime Minister(Chairperson of the the following members:Chief
Committee)Leader of Opposition in Lok Sabha; Minister(Chairperson of the Committee)Leader
andA Union Cabinet Minister nominated by the of Opposition in Legislative Assembly; andA
Prime Minister. Cabinet Minister nominated by the Chief
Constitution Role and responsibilities of the Chief Minister.
Information Commissioner:Power of general Role and responsibilities of the State Chief
superintendence and direction and Information Commissioner:Power of general
management of the affairs of CIC. The Chief superintendence and direction and
Information Commissioner shall be assisted by management of the affairs of SIC.The State
the Information Commissioners.He has the Chief Information Commissioner shall be
authority to exercise all the powers and do all assisted by the Information Commissioners.He
acts which may be exercised or done by the has the authority to exercise all the powers
CIC. and do all acts which may be exercised or done
Qualification of members: The Chief by the SIC.
Information Commissioner and Information Qualification of members: The State Chief
Commissioner shall be persons of eminence in Information Commissioner and Information
public life with wide knowledge and Commissioner shall be persons of eminence in
experience in law, science, technology, social public life with wide knowledge and
service, management, journalism, mass media, experience in law, science, technology, social
 or administration and governance. service, management, journalism, mass media,
Prohibition on membership: The Chief or administration and governance.
Information Commissioner and the Prohibition on membership: The State Chief
Information Commissioners shall not: be an Information Commissioner and the
MP or MLA, orhold any other office of profit or Information Commissioners shall not: be an
connected with any political party or engage in MP or MLA, orhold any other office of profit or
any business or profession. connected with any political party or engage in
Headquarters: The headquarters of CIC shall any business or profession.
be in Delhi. However, the CIC may establish Headquarters: The headquarters of SIC shall
offices at other places in India after taking be at such place in the State as specified by the
approval from the Central Government. State Government by way of notification in the
Official Gazette. However, the SIC may
establish its office at another place in the State
with the previous approval of the State
Government.

SECTION 13 SECTION 16
Term of office of Chief Information Term of office of State Chief Information
Commissioner: As prescribed by the Central Commissioner: As prescribed by the Central
Government. Whether the Chief Information Government.
Commissioner is eligible for reappointment: Whether the State Chief Information
No Chief Information Commissioner shall not Commissioner is eligible for
hold office after attaining the age of 65 years. reappointment: No. No State Chief
Term of office of Information Commissioners: Information Commissioner shall hold office
As prescribed by the Central Government or till after he has attained the age of 65 years.
he attains the age of 65 years, whichever is Term of office of State Information
Term of earlier. Commissioners: As prescribed by Central
Office and Whether the Information Commissioner can Government or till he attains the age of 65
conditions of be reappointed as an Information years, whichever is earlier.
service Commissioner: No. However, an Information Whether a State Information Commissioner
Commissioner may be appointed as the Chief can be reappointed as a State Information
Information Commissioner, after vacation from Commissioner: No. However, he is eligible for
his office. being appointed as the State Chief Information
Tenure of the Information Commissioner Commissioner, after vacation from his office.
appointed as the Chief Information Tenure of the Information Commissioner
Commissioner: Maximum 5 years in aggregate appointed as the State Chief Information
as the Information Commissioner and the Chief Commissioner: Maximum 5 years in aggregate
Information Commissioner. as the State Information Commissioner and the
Resignation of members of Commission: The State Chief Information Commissioner.
Chief Information Commissioner and the Resignation of members of Commission: The
Information Commissioner(s) may resign from State Chief Information Commissioner and the
 the office by writing under his hand addressed State Information Commissioner(s) may resign
to the President. Section 13(6) provides for from the office by writing under his hand
assistance to the Chief Information Officer and addressed to the Governor. Section 16(6)
the Information Officers by way of officials provides for assistance to the State Chief
required by them for the efficient performance Information Officer and the State Information
of functions entrusted to them under the Act. Officers by way of officials required by them
for the efficient performance of functions
entrusted to them under the Act.

SECTION 14 SECTION 17
The power to order the removal from office of The power to order the removal from office of
the Chief Information Commissioner or any the State Chief Information Commissioner or
Information Commissioner vests with the any State Information Commissioner vests with
President under Section 14(1). the Governor under Section 17(1).
Grounds for removal under Section Grounds for removal under Section
14(1): Proved misbehaviour or incapacity. 17(1): Proved misbehaviour or incapacity.
Manner/process of removal: The President Manner/process of removal: The Governor
sends a reference to the Supreme Court for sends a reference to the Supreme Court for
inquiry into the alleged misconduct. If after inquiry into the alleged misconduct. If after
such inquiry, the Supreme Court comes to the such inquiry, the Supreme Court comes to the
conclusion that the charges of misbehaviour conclusion that the charges of misbehaviour
are proved and recommends the removal of are proved and recommends the removal of
such a member in its report, the President shall such a member in its report, the Governor shall
Removal of remove such member. Interim suspension: The remove such member. Interim suspension: The
members of President has the power to: suspend such Governor has the power: to suspend such
Commission member in respect of whom reference is made member in respect of whom reference is made
to Supreme Courtprohibit such aforesaid to Supreme Court to prohibit such aforesaid
member from attending the office during member from attending the office during
enquiry, until the President has passed orders enquiry, until the Governor has passed orders
on receipt of the report of the Supreme Court on receipt of the report of the Supreme Court
on such reference. on such reference.
Disqualifications: Notwithstanding anything Disqualifications: Notwithstanding anything
contained in sub-section (1), the President of contained in sub-section (1), the Governor has
India has the power to remove the Chief the power to remove the State Chief
Information Commissioner or the Information Information Commissioner or the Information
Commissioner if he is guilty of any of the Commissioner if he is guilty of any of the
following acts: Declaration of following acts: Declaration of
insolvency Conviction for an offence involving insolvency Conviction for an offence involving
moral turpitudeEngagement in paid moral turpitudeEngagement in paid
employment outside official dutiesInfirmity of employment outside official dutiesInfirmity of
mind or bodyAcquisition of such financial or mind or bodyAcquisition of such financial or
 other interest which might affect prejudicely other interest which might affect prejudicely
his functions as such member his functions as such member

Powers and functions of the Information Commissions, appeal and penalties: Chapter V

Powers and functions of Commission: Section 18

Section 18(1) provides for the duty of the CIC/SIC to receive and inquire into a complaint from any
person on the following grounds:

1. Where a person has been unable to submit a request to the CPIO/SPIO:

 Owing to the non-appointment of CPIO/SPIO, or

 Due to the refusal of the Central Assistant PIO or the State Assistant PIO to accept his or her
application for information or appeal under the Act for forwarding the same to the CPIO/SPIO,
as the case may be.

2. Refusal of access to any information requested under the Act.

3. Violation of time limit for providing information under the Act.

4. Where the fee required to be paid is considered unreasonable.

5. Providing incomplete, false, or misleading information.

6. With regard to other matters relating to obtaining access to records under the Act.

Power to inquire [Section 18(2)]

Section 18(2) provides for the power of the Commission to initiate an inquiry. The Commission is not
bound to inquire into every complaint received by it. The CIC/SIC may initiate an inquiry if it is satisfied
that there are reasonable grounds for the same.

Powers of the Civil Court to vest in the Commission [Section 18(3)]

Section 18(3) states that while inquiring into any matter under Section 18, the CIC/SIC shall have the
same powers as are vested in a civil court while trying a suit under the Code of Civil Procedure, 1908.
Those powers are:

1. Power to summon and enforce the attendance of persons and compel them to give evidence on
oath and to produce the documents or things;

2. Power of discovery and inspection;

3. Power to receive evidence on affidavit;

4. Power of requisition of public record etc.;

 5. Power to issue summons for examination of witnesses or documents; and

6. Any other matter which may be prescribed.

Power to summon record [Section 18(4)]

The CIC/SIC has the power to summon and examine any record to which this Act applies and which is
under the control of any public authority. Also, such records cannot be withheld from the Commission
on any grounds.

Appeal: Section 19

First Appeal under Section 19(1)

 Grounds of filing the appeal:

1. The applicant has not received the decision on his application within the time specified under
Section 7(1) or 7(3)(a) of the Act, or

2. The applicant is aggrieved by the decision of the CPIO/SPIO.

 Period for filing of an appeal and condonation the delay:

The appeal has to be filed within 30 days from the expiry of the response period or the receipt of the
decision of CPIO/SPIO. An appeal may be admitted after the expiry of 30 days if the First Appellate
Authority is satisfied that the appellant was prevented by a sufficient cause from filing the appeal in
time.

 To whom appeal filed:

The appeal is to be filed to such officer who is senior in rank to the CPIO/SPIO in each public authority
(First Appellate Authority).

Appeal by a third party [Section 19(2)]

This sub-section deals with the filing of appeals by the third party who has suffered an adverse order
under Section 11. A third party aggrieved by the decision of the CPIO/SPIO to disclose third party
information under Section 11 may prefer an appeal within 30 days from the date of the order to the first
appellate authority.

Second appeal [Section 19(3)]

 Appeal to Commission against the decision of the first appellate authority: A Second appeal shall
lie to the CIC/SIC against the decision of the first appellate authority made under Section 19(1).

 Period for filing an appeal: The Second appeal has to be filed within 90 days from the date on
which the decision should have been made or was received. An appeal may be admitted after
 the expiry of 30 days if the CIC/SIC is satisfied that the appellant was prevented by a sufficient
cause from filing the appeal in time.

Opportunity of hearing to a third party[Section 19(4)]

Where the order against which the appeal has been filed pertains to information of a third party, the
concerned Commission shall give a reasonable opportunity of being heard to that third party.

Onus to justify denial on the PIO

Section 19(5), provides that burden to prove that a denial of a request was justified shall be on the
CPIO/SPIO who denied the request.

Time limit for disposing of the appeal [Section 19(6)]

The appeal under Section 19(1) or 19(2) has to be disposed of within 30 days of the receipt of the
appeal. However, in exceptional circumstances, an extended period of a total of 45 days from the date
of filing may be provided for reasons to be recorded in writing.

Supremacy of the Commission

Section 19(7) states that the decision of the CIC/SIC shall be binding.

Orders to be passed by the Commission

Section 19(8) provides for the power of the CIC/SIC to give the following orders in its decision:

1. Requiring the public authority to take steps for complying with the provisions of the Act,
including:-

 Providing access to information, if so requested, in a particular form

 Appointing PIOs

 Publishing certain information or categories of information

 To make required changes to its practices regarding maintenance, management, and

destruction of records

 Enhancing the provision of training on the right to information for its officials

 To submit an annual report to the Commission in compliance with Section 4(1)(b)

2. Require the public authority to award compensation to the complainant for any loss suffered by
him

3. Impose any of the penalties provided under the Act

4. Reject the application

Notice [Section 19(9)]

The CIC/SIC shall give notice of its decision, including any right of appeal, to the complainant and the
public authority.

Penalties: Section 20

While deciding a complaint or an appeal under the Act, the CIC/SIC has the power to impose penalties
on the CPIO/SPIO for the deliberate violation of the provisions of the Act. Before any decision regarding
imposition of penalty is taken, the concerned CPIO/SPIO shall be given a reasonable opportunity of
being heard. The burden to prove that he acted in a reasonable and diligent manner lies on the
concerned CPIO/SPIO only.

GROUNDS PENALTY IMPOSED

SECTION 20(1)
Refusal to receive an application for information without reasonable
cause. At the rate of Rs. 250 per day till the
Information not furnished within the time limit prescribed under Section application is received or information
7(1). is furnished.
Denied the request for information malafidely. However, the total amount of penalty
Knowingly gave incorrect, incomplete, or misleading information. shall not exceed Rs. 25,000.
Destroyed the information requested by the applicant.
Obstructed in any manner in furnishing the information

SECTION 20(2) deals with the persistent default/failure of the CPIO/SPIO.

The commission shall recommend
Persistent default or failure of the CPIO/SPIO to receive an application
that disciplinary action be taken
for information or in providing information without any reasonable
against the concerned CPIO/SPIO
cause or malafidely denying the request for information or knowingly
under the service rules applicable to
furnishing false, incomplete, or misleading information or destroying the
him.
information requested.

Conclusion

The Right to Information Act, 2005 is a significant statutory measure for realisation of the citizen’s right
to access of information. The Act mandates timely response to the citizen’s requests for government
information. Citizens can file RTI applications for the public authorities under the Central Government by
visiting https://rtionline.gov.in./ which is an initiative of the Department of Personnel and Training,
Ministry of Personnel, Public Grievances and Pension. With regard to public authorities under the State
Governments, an RTI application can be filed by visiting the RTI portal/website of the particular state.

Supreme Court on Right to information:

Introduction
Mahatma Gandhi once said, “the real Swaraj will come not by the acquisition of authority by a few, but
by the acquisition of capacity by all to resist authority when abused”. We can state that he surely did not
imagine, at that point in time, that India would have to make a law in order to empower people for
something as basic as to seek information. Understandably, seeking information about the development
of the country is one of the basic rights of the country’s citizens, yet India had to enact a law for the
same. India, being a democracy, requires an informed citizenry as well as transparency of information as
this is vital for the functioning of a democracy, and also to contain corruption, hold governments
accountable etc.

Landmark cases on the right to information decided by the Supreme Court of India

CBSE v. Aditya Bandopadhyay & Ors. (2011)

Issue

In CBSE v. Aditya Bandopadhyay & Ors. (2011), the main issue before the Supreme Court was whether or
not an examinee’s right to information under the RTI Act 2005 includes the right of for the student to
view and inspect his/her evaluated answer books in a public examination, and also whether or not the
examinee has the right to take certified copies of the same. The examining body, which was CBSE, had
claimed that it held the information without giving it out to the student in a relationship of trust
(fiduciary relationship). CBSE claimed that this was exempted under Section 8(1)(e) of the RTI Act.

Observation of Court (Judgement)

Para 18 of the Judgement reads as follows – “Section 22 of RTI Act provides that the all provisions of the
RTI Act will have an effect, notwithstanding anything that is not consistent or else contained in any other
law for the time in force. Therefore the provisions of the RTI Act will continue to prevail over the
provisions of the bye-laws/rules of the examining bodies in regard to all exams. As a result, unless and
until the examining body is able to demonstrate that the answer-books fall under the exempted
category of information described in clause (e) of section 8(1) of RTI Act, the examining body will be
bound to provide access to an examinee to inspect and take copies of his evaluated answer-books, even
if such inspection or taking copies is barred under the rules/bye-laws of the examining body governing
the examinations.”

Analysis of the Judgement

 It was held by the Court in the final verdict that as the examining body (CBSE) did not hold any
type of fiduciary relationship with the examinees or examiners, it will not be exempted.

 The Supreme Court ordered CBSE for the information to be provided.

 The Court held that the corrected answer sheets were information to be provided to students
who seek them under the RTI Act.
  The observations that were made by the Court, stated in Para 37 above, were completely
uncalled for, and there does not seem to be any cause or reason for those observations.

 Under Para 37, labelling citizens as oppressors and intimidators is highly unacceptable.

 The remarks that were made in Para 37 of the judgement are unexplainable by any facts and
they certainly run parallel to all the earlier decisions on the RTI Act.

 Unfortunately, the Supreme Court could make such remarks, as mentioned in Para 37 of the
Judgement, especially concerning a fundamental right of citizens.

Girish Ramchandra Deshpande v. Central Information Commission & Ors. (2013)

Issue

In Girish Ramchandra Deshpande v. Central Information Commission & Ors. (2013), whether or not the
information like movable/immovable property, assets liabilities and information with reference to the
career of a public servant may be denied. The defendant argued that the information which was sought
for is qualified to be personal information as exempted in Section 8(1)(j) of the RTI Act.

Observation of the Court (Judgement)

Para 14 – “The details disclosed by a person in his income tax returns are “personal information” which
stand exempted from disclosure under clause (j) of Section 8(1) of the RTI Act, unless involves a larger
public interest and the Central Public Information Officer or the State Public Information Officer or the
Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information.”

Analysis of the Judgement

 It was held by the Court that all the information that was being requested, including copies of all
memos and orders of punishment, assets, income tax returns, and details of gifts received etc.
are all personal information of the public servant.

 The Court held that all this information is personal information of the public servant under
clause (j) of Section 8(1) of the RTI Act.

 The information was hence exempted and ordered not to be furnished under the RTI Act.

 We can conclude by saying that the judgement has expanded the scope of Section 8(1) (j).

 In its verdict, it shows how the Court has gone far beyond any discussion or interpretation of the
law whatsoever.

 In the entire verdict, the only justification given for denial of information is that the court agrees
with the decision of the Central Information Commission.
  Furthermore, two judgments that seem to be contrary to this one are – R Rajagopal and Anr. v.
State of Tamil Nadu, 1994 and also 2. The Supreme Court judgement in the ADR/PUCL case,
2002.

Karnataka Information Commissioner v. PIO

Issue and observations of the Court

 Under the case of Karnataka Information Commissioner v. PIO, certified copies of some
information and guidelines along with rules in respect to scrutiny and classification of writ
petitions were requested by an RTI applicant, along with procedures followed by the Karnataka
High Court in respect of Writ Petition Nos. 26657 of 2004 and 17935 of 2006.

 The information was refused upon by the PIO on the grounds that the RTI applicant must seek
the information under the rules of the Karnataka High Court only.

 This matter later went to the State Information Commission.

 The State Information Commission disagreed with the PIO.

 It ordered for information to be provided to the applicant under the RTI Act.

 PIO later challenged the Commission’s order in the High Court, which names the applicant as the
respondent in this case.

 The commission’s order was set aside by the Karnataka High Court.

 A Petition was filed by an Information Commissioner and the Commission challenged this order
before the Supreme Court.

 The Supreme Court later considered the petition, being filed by an Information Commissioner to
be offensive.

 It said that the commissioner, as well as the commission, had no ‘locus standi’.

 It was later held by the Court that both, the commissioner and commission, were wasting public
money by challenging the High Court Order.

 A cost of ₹10,000 was imposed as a fine on the commission, as a harsh snub.

Analysis of the Judgement

 Here, it is worth mentioning that the Supreme Court itself had once earlier accepted the Chief
Information Commissioner (Manipur) in one judgement as to the Petitioner of the case.

 Many High Courts have also previously named the Commission as the party in many petitions
that were filed earlier, challenging the decision of the Information Commission.
  Hence, it does not appear to be correct for the Supreme Court to take umbrage in this case at
the commission for approaching it as a petitioner.

 More importantly, the overriding effect of the RTI given in Section 22 of the RTI Act was not
addressed at all by the Supreme Court.

 This Section’s provisions were brushed away completely.

 This judgement has had a huge impact on the Information Commissions.

 Post this verdict, the Commissions have become more subservient to the Courts.

 The harsh snub judgement has completely silenced the Commission from questioning the
Courts.

 If the apex courts snub the authorities in such matters, it damages the rule of law as well.

 Authorities require some extent of respect in order to enforce the laws, which the authorities
undoubtedly lose with these negative judgements.

A global view on right to information

 Over 50 countries in the world now have freedom of information and right to information to
their citizens.

 15-20 countries are actively considering adopting this process in its governance.

 All these nations are joined together by a growing number of inter-governmental bodies that
have established FOI policies.

 These inter-governmental bodies include the World Bank, the European Union and UNDP, etc.

 The effect on movements for open government worldwide was catalysed thoroughly by the
UN’s Universal Declaration of Human Rights, 1948.

 Many democratic countries around the world have already taken legislative actions to give their
citizens a right to access information that is in possession of the government and its agencies.

 Freedom of Information Act, 1966 was passed in the USA, and later extensively amended in
1974, and again in 1976, 1983.

 The Access to Information Act was enacted in Canada, in 1982.

 Australia and New Zealand have also passed similar legislation(s) in 1982, 1983, respectively.

 The right to freedom of speech and expression has also been listed in the fundamental Rights
listed in Part III of the Constitution.
  However, we can state that freedom of information legislation is not a new concept to the
world.

 It has been in existence since the 18th century, as evident in the case of Sweden.

 The history of RTI has always been a struggle between the power of the state and that of the
civil societies of the state.

 In many regions, the enactment of RTI has resulted only from the fall of the authoritarian
regime.

Conclusion :

We can conclude by saying that until the introduction of the Right to Information Act, secrecy was
completely maintained and information was only the property of the people on the ruling side. Now,
with the enactment of the Act, people have got the opportunity to take, see, and check any information
that they desire except what is exempted under the Act. As we can see through the Supreme Court
Judgements, the Act has empowered the Indian democracy thoroughly. At the same time, looking at the
judgements, we can also conclude by saying that a lot of awareness campaigns and awareness programs
need to be enforced by the government in order to fully utilize the act to combat the corruption that
still exists in the Indian Democracy, otherwise the RTI Act will also soon become just like any other act.

LOKPAL AND LOKAYUKTA: UNIT-IV

Historical background of lokpal:

Introduction: . Corruption is the root cause of this problem that our country faces. Though there are
many anti-corruption agencies in India, most of these anti-corruption agencies are hardly independent.
Even the CBI has been termed as a “caged parrot” and “its master’s voice” by the Supreme Court of
India. Many of these agencies are only advisory bodies with no effective powers to deal with this evil of
corruption and their advice is rarely followed. There also exists the problem of internal transparency and
accountability. Moreover, there is not any effective and separate mechanism to maintain checks on such
agencies. An independent institution of Lokpal and Lokayukta has been a landmark move in the history
of Indian polity which offered a solution to the never-ending menace of corruption. It provides a
powerful and effective measure to counter corruption at all levels of the government.

What are Lokpal and Lokayuktas?

The Lokpal and Lokayukta Act, 2013 mandated for the establishment of Lokpal at the Union level and
Lokayukta at the State level. Lokpal and Lokayuktas are statutory bodies and these do not have any
constitutional status. These institutions perform the function and role of an “Ombudsman” (an official
appointed to investigate individuals’ complaints against a company or organization, especially a public
authority). They inquire into allegations of corruption against certain public bodies/organizations and for
other related matters.
Origin and History

The story of the Lokpal and the Lokayukta has a long story. Lokpal and Lokayukta is not Indian origin
concept. The concept of ombudsman originated in 1809 with the official inauguration of the institution
of Ombudsman in Sweden. Later in the 20th century, after the Second World War, the institution of
ombudsman developed and grew most significantly. Countries like New Zealand and Norway also
adopted the system of ombudsman in the year 1962. This system proved extremely significant in
spreading the concept of ombudsman to other countries across the globe.

Great Britain adopted the institution of the Ombudsman in the year 1967, on the recommendations of
the Whyatt Report of 1961. Through the adoption of such a system, Great Britain became the first
eminent nation in the democratic world to have such an anti-corruption institution. After great Britain,
Guyana emerged as the first developing nation to adopt the concept of the ombudsman in the year
1966. Subsequently, this concept was further adopted by Mauritius, Singapore, Malaysia, and India as
well.

In India, the former law minister Ashok Kumar Sen became the first Indian to propose the concept of
constitutional Ombudsman in Parliament in the early 1960s. Further, Dr. L. M. Singhvi coined the term
Lokpal and Lokayukta. Later in the year 1966, the First Administrative Reform Commission passed
recommendations regarding the setting up of two independent authorities at the central and at the
state level. According to the commission’s recommendation, the two independent authorities were
appointed to look into complaints against public functionaries, including members of Parliament as well.

After the recommendations from the commission, the Lokpal bill was passed in Lok Sabha in 1968 but
lapsed due to the dissolution of Lok Sabha. Since then, the bill was introduced many times in Lok Sabha
but has lapsed. Till 2011 as many as eight attempts were made to pass the Bill, but each of them failed.

Before 2011, a commission, headed by M.N. Venkatachaliah, was also set up, in the year 2002 to review
the working of the Constitution. This Commission recommended the appointment of the Lokpal and
Lokayuktas. The commission also recommended that the Prime Minister ought to be kept out of the
ambit of the Lokpal. Later in 2005, the Second Administrative Reforms Commission chaired by Veerappa
Moily came up with the recommendation that the office of Lokpal needs to be established without
delay.

Though all these recommendations were never given the due preference, the government in 2011
formed a Group of Ministers, chaired by the former President Pranab Mukherjee. These groups of
ministers worked to examine the proposal of a Lokpal Bill and to suggest measures to tackle corruption.

Not only the administration and the government but even the people of India felt the need for such a
system to be introduced into the Indian governance system. India rose into a nationwide protest for
Lokpal. The “India Against Corruption” movement was led by Anna Hazare to exert pressure on the
United Progressive Alliance (UPA) government at the Centre.
The protests and the movement resulted in the passing of the Lokpal and Lokayuktas Bill, 2013, in both
the Houses of Parliament. The bill received assent from President on 1 January 2014 and came into force
on 16 January 2014 under the name “The Lokpal and Lokayukta Act 2013”.

Lokpal and Lokayukta Amendment Act, 2016

After the introduction of the Lokpal and Lokayukta Act 2013, a bill was passed by Parliament in July 2016
which amended the Lokpal and Lokayukta Act, 2013. This amendment enabled the leader of the single
largest opposition party in the Lok Sabha to become a member of the selection committee in the
absence of a recognized Leader of Opposition.

This bill also amended Section 44 of the Lokpal and Lokayukta Act 2013. Section 44 of the Act dealt with
the provisions of furnishing of details of assets and liabilities, within 30 days of joining the government
service, of any public servant. This amendment replaced the time limit of 30 days. It stated that the
public servants will make a declaration of their assets and liabilities in the form and manner as
prescribed by the government.

In the case where any non-governmental organization receives funds of more than Rs. 1 crore from
government or receives foreign funding of more than Rs. 10 lakh then the assets of the trustees and
board members were to be disclosed to the Lokpal. The bill provided an extension to the time limit given
to trustees and board members to declare their assets and those of their spouses.

Powers and Functions of Lokpal and Lokayukta

The sustainability of any democracy depends on the trust between the public and the public institutions,
that is why it becomes paramount to hold these public functionaries accountable. The setting up of two
special institutional commands namely, ‘Lokpal‘ and ‘Lokayukta‘ for redressing citizens’ grievances
against the administration was recommended by The First Administrative Reforms Commission (ARC)
of India (1966-1970) on the pattern of the institution of Ombudsman (an official appointed to
investigate, especially a public authority) in Scandinavian Countries (Sweden, Denmark, Finland,
Norway). Dr. L.M. Singhvi in 1963 coined the terms Lokpal and Lokayukta. This body is constituted
mainly to check the menace of corruption in India. It provides an effective way to counter corruption at
all levels of government and brings transparency and accountability to the system. The idea of an anti-
corruption authority and an ombudsman has been floating around for over five decades now. It finally
got shape with the passing of the Lokpal and Lokayukta Bill, 2013, in Lok Sabha with the support of all
major political parties, but only after a countrywide protest led by India Against Corruption, a civil
society movement of activist Anna Hazare. The Lokpal and Lokayukta Act, 2013 aims to establish the
institution of the Lokpal at the Central level and Lokayukta at the state level.

Lokpal is the legal representative of India. It is originated from the Sanskrit word “Lok” which means
people and “Pala” which means protector or caretaker. Together it means “protector of people”, so
basically it is a forum where the citizens can send a complaint about unfair administrative actions. The
objective of passing such a law is to annihilate corruption of all forms at all levels of Indian polity.
Power of Lokpal

 Prime Minister, or a Minister in the Union government, or a Member of Parliament, or all

categories of public servants as well as Group A, B, C, and D officers, come under the ambit of
Lokpal’s jurisdiction.

 Lokpal has the power to seize the assets, proceeds, receipts, and benefits of any official which
are acquired by corrupt means.

 Lokpal is conferred with power to recommend the transfer or suspension of civil servants
connected with charges of corruption.

 Lokpal has the power to give directions to avert the destruction of records during the
preliminary investigation.

 It has the powers of superintendence over, and to give direction to CBI (Central Bureau of
Investigation) and it also contains several provisions which are aimed at making the CBI
stronger.

 The inquiry Wing of the Lokpal has been authorized with the powers of a civil court in certain
cases.

 Lokpal has the authority to grant sanction for prosecution of public servants in place of the
Government or competent authority.

Functions of Lokpal

 The Lokpal keeps a watch over all public officials and can take suitable action against them if
they do not function in accordance with the law.

 It can act either on the basis of any complaint made by a private person or suo moto (i.e. on his
own initiative). The Lokpal can summon or question any public official if there exists a prima
facie case against the person, even before an investigation agency (such as CVC i.e. Central
Vigilance Commission or CBI) has begun an inquiry.

 It can also recommend his findings to be enforced into action.

 Lokpal to function as the appellate authority for appeals arising out of any other law for the time
being in force.

 It has to protect any action taken in good faith by any public servant or other officials. It has to
provide adequate protection to those who are being exploited for raising their voice against
corruption.

Lokayukta performs similar functions at the state level. Many states had already set up the institution of
Lokayuktas much before the enactment of the Lokpal and Lokayukta Act, 2013. Lokayukta was first
established in Maharashtra in 1971. Until 2013, 21 states and 1 Union Territory (Delhi) have
established this institution. It is to be mentioned that there is no uniformity regarding the jurisdiction of
Lokayukta in all the states. Even the structure of the Lokayukta is not the same in all the states. Some
states like Karnataka, Rajasthan, Maharashtra and Andhra Pradesh have only created the Lokayukta
while states such as Uttar Pradesh, Himachal Pradesh and Bihar have also created Uplokayukta with
Lokayuktas.

Power of Lokayukta

 In states like Himachal Pradesh, Andhra Pradesh, Madhya Pradesh and Gujarat the chief minister
is included within the jurisdiction of Lokayukta while he is exempted from the purview of
Lokayukta in the states of Orissa, Bihar, Rajasthan, Uttar Pradesh and Maharashtra.

 Ministers and higher public servants are also included under the ambit of Lokayukta in almost all
the states.

 It has the power to raid on the houses and offices of corrupt officials at state level.

 It can call for relevant files and documents from the state government departments.

 It also enjoys the power to inspect and visit government organisations, which are being
investigated.

 Lokayukta may investigate any action taken by the public servant if it is referred by the state
government.

 It has the authority to suggest punishment against the culprit to the administration, but it is up
to the state to either accept the suggestions or modify them.

Functions of Lokayukta

 Lokayukta is tasked with speedy redressal of public grievances against politicians and officers in
the government service.

 It investigates allegations of corruption, abuse of power, maladministration or lack of integrity

against public functionaries at state level, and once proved recommends action.

 A consolidated report will be presented by the Lokayukta and Uplokayukta about their functions
to the Governor of the state. Hence, they are responsible to the state legislature.

 Its another crucial function is to keep a check on the investigation of anti-corruption agencies
and authorities.

 It carries out fair and impartial investigations, based on facts against the accused person by
taking the assistance of a special investigating officer.

The institution of Lokpal has been a landmark move in the history of the Republic of India, but at the
same time there are certain loopholes that needs to be corrected. The institution of Lokpal and
Lokayukta must be strengthened in respect of functional autonomy and workforce availability to fight
against the long-standing battle of corruption. There ought to be transparency in the nomination of
Lokpal and Lokayukta as it will increase the possibilities of appointment of the right candidate.

Lokpal Jurisdiction and Powers

 Jurisdiction of Lokpal includes Prime Minister, Ministers, members of Parliament, Groups A, B,

C and D officers and officials of Central Government.

 Jurisdiction of the Lokpal included the Prime Minister except on allegations of corruption
relating to international relations, security, the public order, atomic energy and space.

 The Lokpal does not have jurisdiction over Ministers and MPs in the matter of anything said in
Parliament or a vote given there.

 Its jurisdiction also includes any person who is or has been in charge (director/ manager/
secretary) of anybody/ society set up by central act or any other body financed/ controlled by
central government and any other person involved in act of abetting, bribe giving or bribe
taking.

 The Lokpal Act mandates that all public officials should furnish the assets and liabilities of
themselves as well as their respective dependents.

 It has the powers to superintendence over, and to give direction to CBI.

o If Lokpal has referred a case to CBI, the investigating officer in such case cannot be
transferred without the approval of Lokpal.

 The Inquiry Wing of the Lokpal has been vested with the powers of a civil court.

 Lokpal has powers of confiscation of assets, proceeds, receipts and benefits arisen or procured
by means of corruption in special circumstances.

 Lokpal has the power to recommend transfer or suspension of public servant connected with
allegation of corruption.

 Lokpal has the power to give directions to prevent the destruction of records during the
preliminary inquiry.

Limitations

 The institution of lokpal has tried to bring a much needed change in the battle against
corruption in the administrative structure of India but at the same time, there are loopholes and
lacunae which need to be corrected.

 Five years have passed since the Lokpal and Lokayuktas Act 2013 was passed by parliament, but
not a single Lokpal has been appointed till date indicating the lack of political will.
 o The Lokpal act also called upon states to appoint a Lokayukta within a year of its coming
to force. But only 16 states have established the Lokayukta.

 Lokpal is not free from political influence as the appointing committee itself consist of members
from political parties.

 The appointment of Lokpal can be manipulated in a way as there is no criterion to decide who is
an ‘eminent jurist’ or ‘a person of integrity.’

 The 2013 act did not provide concrete immunity to the whistle blowers. The provision for
initiation of inquiry against the complainant if the accused is found innocent will only discourage
people from complaining.

 The biggest lacuna is the exclusion of judiciary from the ambit of the Lokpal.

 The Lokpal is not given any constitutional backing and there is no adequate provision for appeal
against the Lokpal.

 The specific details in relation to the appointment of Lokayukta have been left completely on
the States.

 To some extent, the need for functional independence of the CBI has been catered to by a
change brought forth in the selection process of its Director, by this Act.

 The complaint against corruption cannot be registered after a period of seven years from the
date on which the offence mentioned in such complaint is alleged to have been committed.

LOKPAL AND LOKAUKTA:

Ombudsman is a Scandinavian word. It is taken to mean officer or commissioner. In its special sense, it is
taken to mean a commissioner who has the duty of investigating and reporting to Parliament on citizens'
complaints against the Government.' An Ombudsman requires no legal powers except powers of
inquiry. In particular, he is in no sense a Court of Appeal and he cannot alter or reverse any Government
decision. His effectiveness derives entirely from his power to focus public and parliamentary attention
upon citizens' grievances.

In simple words, Ombudsman is an officer of Parliament whose main function is to investigate the
complaints or allegations against the administration. The main object of the institution of Ombudsman is
to safeguard the citizens against misuse of the powers of the administration. On account of the system
of Ombudsman, the error committed by the administrative or executive officials are exposed. The
complaints or allegations of the citizens are investigated by the experienced persons who are members
of the department concerned. The purpose of the Ombudsman is to control the administration and
 thes give protection to the citizens against injustice brought about by faulty administration. His
function is to locate maladministration or faults in the administration. The main characteristics are:

1. Ombudsman is an independent and non-partisan officer of the Legislature and his function is to
supervise the administration.

2. He deals with the specific allegations or complaints from the public against administrative
injustice and maladministration. Ombudsman may proceed on his own information in the similar
circumstances. 3. Ombudsman can investigate, criticise and report back to the legislature but he
cannot reverse the administrative action."

Need and Utility See below in this chapter "Necessity, Utility and Importance",

Origin & Development:

The institution of Ombudsman first came into operation in Scandinavia. This institution was established
in Sweden in 1809, in Finland in 1919, in Denmark in 1953 and in Norway in 1963. The Ombudsman
system was adopted by New Zealand in 1962 and by England in 1966. In Australia, it has been
established at the Centre as well as the State. In India, it has been established in some States but has not
been established at the Centre.

Sweden

In Sweden, the institution of Ombudsman was established in 1809. He can investigate a case on the
complaint made by a person or suo moto. He can recommend action to Parliament not only against
public officials but also against Ministers against whom he has received complaints. However, he cannot
quash or review the administrative decision.

Denmark

In Denmark, the system of Ombudsman has been adopted in 1954. The Ombudsman has been
empowered to supervise all State administration. Complaints can be made directly to the Ombudsman.
If the Ombudsman is satisfied that a prima facie case has been made out by the complaint against the
Department, he may call, information from the Department and make enquiries.

New Zealand

In New Zealand, Ombudsman has been established in 1962 by the Parliamentary Commissioner
(Ombudsman) Act, 1962. The Act of 1962 has been replaced by the Ombudsman Act, 1975. By the Act of
1975, the jurisdiction of the Ombudsman has been extended and the provision has been made for the
appointment of more than one Ombudsman. The Act of 1975 has provided for one or more
Ombudsman and in case of more than one, the provision has been made for designating one of them as
the Chief Ombudsman for allocation of work among them and also for co-ordination among them. In
New Zealand, Ombudsman is appointed by the Governor-General on the recommendation of the House
of Representatives. He holds the office for a term of 5 years. He can be reappointed. He can be removed
from his office by the Governor-General upon the address from the House of Representatives on the
ground of disability, misconduct, neglect of duty, etc. A person aggrieved from the administrative action
may make a complaint to the Ombudsman and then he can make investigation. He can make
investigation suo motu also. A petition may be referred by a Committee of the House for investigation.
In addition, with the consent of the Chief Ombudsman, the Prime Minister may also refer matter to him
for investigation and report. He has been empowered to review an act even if it has been made final by
the statute. He can give relief, if the administrative action is unjust, unreasonable or oppressive. He can
also give relief if the administrative action is against law or is not supported by reason. He is competent
to recommend suitable action on his findings in his report to the Parliament.

England

In England, the Ombudsman called Parliamentary Commissioner has been established by the
Parliamentary Commissioner Act, 1967. He is appointed by the Crown on the advice of the Prime
Minister. He holds office until he reaches the age of sixty five years. He can be dismissed on an address
from both Houses of Parliament. The departments which have been placed under his jurisdiction have
been listed in Schedule II to the Act. This list may be amended by an order in Council. Thus, the
Parliamentary Commissioner Act, 1967 confers on the Parliamentary Commissioner jurisdiction only on
the Central Government and only over the departments stated in the Second Schedule to the Act. This
Act expressly includes the Ministers along with their departments. Several matters have been excluded
by this Act and they are not subject to the Commissioner's investigation. Such matters are specified in
Schedule III.

Complaints against the administration cannot be made to the Ombudsman directly. It can be made to
the Ombudsman only through a member of the House of Commons. Thus, the complaint can be sent to
the Ombudsman only through a member of the House of the Commons. The Commissioner reports the
result of his investigation to the Member through whom he has received the complaint. When he starts
an enquiry, he is required to afford to the Department concerned and the complainant, an opportunity
to comment on the allegations contained in the complaint.

Australia

In Australia, two tier Ombudsman system has been adopted. There is Ombudsman system at the Centre
and each State has separate Ombudsman. The Common Wealth Ombudsman system has been
established in Australia by Ombudsman Act, 1976 which has been amended several times. The
Ombudsman system in Australia consists of a Common Wealth Ombudsman, 3 Deputy Common Wealth
Ombudsmen and a Defence Force Ombudsman. The Ombudsman (whether he is Common Wealth
Ombudsman or Deputy Common Wealth Ombudsman) holds office for seven years. He is eligible for
being reappointed. He retires at the age of 65 years. He is appointed by the Governor-General. He can
be removed from his office on an address by the two Houses of Parliament requesting his removal on
the ground of physical or mental incapacity or misbehaviour. He has been empowered to investigate
complaints against several major Government Departments action. He can investigate on complaint
made by a person or suo motu with a matter of administration taken by the Department. Taking of
action includes failure or refusal to take action. It is to be noted that he can investigate into an action
taken by a delegate of a Minister but cannot investigate into an action taken by a Minister. The provision
has been made for resolving the doubt about the power or jurisdiction of the Ombudsman by the Court.
The Ombudsman and the department concerned can refer it to the Federal Court for determination.

II. OMBUDSMAN IN INDIA. (Lokpal)' The establishment of the institution of Ombudsman is the demand
of time. It will be much useful in redressing the grievances of the citizens against the administration.
Attempts have been made to establish the institution like Ombudsman (called Lokpal) but unfortunately
it has not been established so far.

However, the institution of Lokayukta is functioning in some Indian States.

Necessity, Utility or Importance (suitability to India)

There has been tremendous increase in the powers and functions of the administrative
authorities. They discharge not only the administrative functions but also quasi-legislative and
quasi-judicial functions. The administrative authorities enjoy wide discretionary powers. The
increase in powers and functions of the administrative authorities has also increased the
opportunities of misuse of the power by them. This has necessitated the effective control of the
administrative authorities. The judiciary, Parliament and the executive have not been successful
in controlling them. The Courts have, no doubt, expanded their supervision over the
administration but still it is not sufficient.
There are several limitations on the power of the judiciary to control the powers of the
administration. The burden of establishing the case lies on the person who alleges the abuse of
power. To prove mala fides, improper purpose, etc. is not an easy task specially in cases where
the Government claims privileges to withhold the documents.
The judicial control is also weakened by inserting exclusion or finality clause in the statute.
Several discretionary powers in the hands of the executive escape judicial review and many
errors are committed in disregard of the interest of the individual in the guise of the public
interest. The judicial review of the discretionary is also quite limited. The Supreme Court has
made it clear that the Courts cannot substitute their discretion for that of the official ry power
who has been conferred with the powers under law. According to the Supreme Court, the Court
is not the appellate forum where the correctness of the order of the Government can be
canvassed and it has no jurisdiction to substitute its own view for entirety of the power,
jurisdiction and discretion is vested by law in the Government. The judicial proceedings are time
consuming and costly. They require the payment of Court fees and engagement of lawyers for
the redress of grievances against the administration. This makes it beyond the common men to
seek the judicial redress against the administration. In the words of Jain and warrant under his
hand and seal on the recommendations of a committee consisting of the Vice-President of India,
as Chairman, Prime Minister, Speaker of Lok Sabha, Minister of Home Affairs, Leader of the
House to which the Prime Minister does not belong. Leader of opposition in Lok Sabha and
Leader of opposition in Rajya Sabha a members. Under the Scheme of the Bill, the Lokpal will
inquire into complaints alleging that a public functionary as defined in the Bill has committed an
offence punishable under the Prevention of Corruption Act, 1988 and the expression "public
 functionary covers, Prime Minister, Ministers, Ministers of State, Deputy Ministers and
Members Parliament. It seeks to carry out in this respect the object and purpose of the
recommendations of the Administrative Reforms Commission for enabling the citizen to have
recourse to a convenient and effective forum for determination of complaints and thereby save
him from pursuing his remedy through the process of courts, which may prove expensive or
dilatory and may not facilitate in speedy determination. The Bill also seeks to make special
provisions for discouraging frivolous, vexatious and false complaints. The Bill also provides for
declaration of assets and liabilities of Members of Parliament and their family members,
annually.

Lokpal Bill, 2003

Now in 2003, the Lokpal Bill has once again been introduced in Parliament. This proposes to include
Prime Minister also within the orbit of the Lokpal Bill. Finally, in realistic sense, it seems that the crux of
the matter does not lie in the colour, content, scope and ambit of the Act, but it lies in wiping out the
grey area on the subject. It can be done only by giving a jus scriptum by the Parliament. Experience has
been the witness that dynamic nature of law would dovetail itself with the changing pace of social
needs."

The Central Vigilance Commission

Prior to the commencement of Central Vigilance Commission Act, 2003 (45 of 2003), in order to root out
corruption amongst the Government servants, the Government of India created an institution in 1964,
known as Central Vigilance Commission, on the recommendation of Santhanam Committee. The
Committee was commissioned with the task of making recommendation on measures of preventing
corruption. The Committee had recommended that the Commission should be entrusted with two
major problems to work and concerning the administration, namely, (a) prevention of corruption and
maintenance of integrity amongst Government servants, (b) ensuring just and fair exercise of
administrative powers vested in various authorities by statutory rules or by non-statutory executive
orders. The recommendations of the Committee regarding measures of removing corruption and cases
of mal-administration were accepted by the Government and hence the Commission was accordingly
established.

The Commission is attached to the Ministry of Home Affairs but not subordinate to it or other
department of the Government. It is an independent autonomous body like U.P.S.C. The Central
Government has envisaged the role and functions of the C.V.C. in the following manner : "The C.V.C. will
have, in the sphere of vigilance, status and role broadly corresponding to those of U.P.S.C. It will have
extensive functions designed to ensure that complaints of corruption or lack of integrity on the part of
public servants are given prompt and effective attention, and that offenders are brought to book
without fear or favour. In the constitutional and legal sense, its functions would be advisory. But in
reality, they would be advisory in the same sense as those of U.P.S.C. The combined effect of the
independence of the Commission, the nature of its functions and the fact that its report would be placed
before Parliament, would be to make the Commission a powerful force for eradication of corruption in
the public services The jurisdiction of the Commission and its powers are co-extensive with the
executive powers of the Centre. The Government servants employed in the various ministries, and
departments of the Government of India and the Union Territories, the employees of public sector
undertakings, and nationalised banke, have been kept within its purview. The Commission has confined
itself to cases pertaining only: 6) to gazetted officers, and (ii) employers of public undertakings and
nationalised banks, etc. drawing a basic pay of Rs. 1,000 per month and above.

Service Conditions and Appointment of Vigilance Commissioner The Central Vigilance Commissioner is
to be appointed by the President of India. He has the same security of tenure as a member of the Union
Public Service Commission. Originally, he used to hold office for six years but now as a result of the
resolution of the Government in 1977, his term has been reduced to three years with proviso to extend
his term in public interest for not more than two years. After the Commissioner has ceased to hold
office, he cannot accept any employment in the

Union or State Government or any political, public office. He can be removed or suspended from the
office by the President on the ground of misbehaviour but only after the Supreme Court has held an
inquiry into his case and recommended action against him.

Functions

The Commission mainly considers the complaints relating to corruption, misconduct, lack of integrity or
some other kinds of malpractice or misdemeanour on the part of the public servants. It is only an
advisory body. has no adjudicatory functions as such in disciplinary proceedings against Government
servants. It cannot extend sanction for criminal prosecution for offences committed by public servants.
It has no machinery to investigate or enquire into complaints of corruption except to a limited extent.

Whenever a complaint is received by the Commission, it refers the same either to C.B.I. or to the
concerned ministry or department for investigation. The investigation report is sent to the Commission
for advice/ in which case it may drop the complaint at the initial stage itself on finding the contents
vague or not verifiable. The Commission is not authorised to investigate the complaint itself, it has to
refer them to the C.B.I. or Ministry or Department for investigation. However, the Chief Technical
Examiner's Organisation attached to it conduct technical examination of public works including checking
of bills of contractors, contracts and muster rolls. The Commission advises as to the action to be taken in
following cases:

(i) Reports of investigation by the C.B.I., which involves departmental action or prosecution in the
matter either referred to it by the Commission or otherwise.

(ii) Reports of investigation by the Ministry or department involving the case of disciplinary action in the
matters either referred by the Commision or otherwise.

(iii) Cases received direct from public sector undertakings and statutory corporations; etc. corpora The
Commission may require, that oral enquiry in any departmental proceeding may be entrusted to one of
the Commissioners
All the Chief Vigilance Officers are required to submit a report of the vigilance work done in their
organisations with special emphasis on preventive vigilance to the Commission for its assessment.

The Commission may suggest to the Government changes in the procedure and practice where it
appears that the existing procedure or praction afforda corruption or misconduct The Central Vigilance
Commission deals with the matters or corruption, misconduct, lack of integrity or other kinds of mal-
practices or misdemeanours, on the part of Government servants. The work of the Commission is mainly
advisery. It co-ordinates, supervises and advises the investigating authorities and ministries. It cannot
decide cases against the Government servanta.

The Commission also dischargon the functions of conducting orientation courses for vigilance officers
and courses in the conduct of departmental proceedings. It also reviews the vigilance arrangements in
ministries/ departments/public undertakings. It also renders advice in matters relating to the
interpretation of lawn and procedures governing departmental proceedings, etc.

The Commission is required to submit an annual report to the Ministry of Home Affairs, stating the cases
in which its recommendations were accepted and acted upon by the competent authorities. A copy of
the report together with Government Memo explaining the reasons for non-acceptance of any
recommendations made by the Commission is laid before each House of the Parliament.

The long-standing demand for the formation of an Act to deal with the provisions relating to
constitution, jurisdiction, power and function of the commission was ultimately meted by passing an
Act. The said Act was named as Central Vigilance Commission Act, 2003 and the same was assented by
the President of India on 11th September, 2003. The preamble of the Act 45 of 2003 is read as under:
"An Act to provide for the constitution of a Central Vigilance Commission to inquire or cause inquiries to
be conducted into offences alleged to have been committed under the Prevention of Corruption Act,
1988 by certain categories of public servants of the Central Government, Corporations established by or
under any Central Act, Government companies, societies and local authorities owned or controlled by
the Contral Government and for matters connected therewith or incidental thereto." Constitution of the
Central Vigilance Commission under the Central Vigilance Commission Act, 2003 The Central Vigilance
Commission was constituted under Section 3 of Act 45 of 2003. Section 3 of Act is read as under:

1. Constitution of Central Vigilance Commission.-(1) There shall be constituted a body to be known

as the Central Vigilance Commission to exercise the powers conferred upon, and to perform the
functions assigned to it under this Act and the Central Vigilance Commission constituted under
sub-section (1) of 3 of the Central Vigilance Commission Ordinance, 1999 (Ord. 4 of 1999) which
ceased to operate, and continued under the Government of India in the Ministry of Personnel,
Public Grievances and Pensions (Department of Personnel and Training) Resolution No.
371/20/99-AVD. III, dated the 4th April, 1999) as amended vide Resolution of even number,
dated the 13th August, 2002 shall be deemed to be the Commission constituted under the Act.

(2) The Commission shall consist of

(a) a Central Vigilance Commissiner Chairperson

 (b) not more than two Vigilance Commissioners Members

(3) The Central Vigilance Commissioner and the Vigilance Commissioners shall be appointed from
amongst persons

(a) who have been or are in an All-India Service or in any civil service of the Union or in a civil post under
the Union having knowledge and experience in the matters relating to vigilance. policy making and
administration including police administration; or

1. (b) who have held office or are holding office in a corporation established by or under any
Central Act or a Government. company owned or controlled by the Central Government and
persons who have expertise and experience in finance including insurance and banking, inw,
vigilance and investigations!

Provided that, from amongst the Central Vigilance Commissioner and the Vigilance Commissioners,
not more than two persons shall belong to the category of persons referred to either in clause (a) or
clause (b).

(4) The Central Government shall appoint a Secretary to the Commission on such terms and conditions
as it deems fit to exercise such powers and discharge such duties as the Commission may by Functions
and powers of the Central Vigilance Commission under the Central Vigilance Commission Act, 2003
regulations specify in this behalf.

(5) The Central Vigilance Commissioner, the other Vigilance Commissioners and the Secretary to the
Commission appointed under the Central Vigilance Commission Ordinance, 1999 (Ord. 4 of 1999) or the
Resolution of the Government of India in the Ministry of Personnel, Public Grievances and Pensions
(Department of Personnel and Training) Resolution No. 371/20/99-AVD III, dated the 4th April, 1999 as
amended vide Resolution of even number, dated the 13th August, 2002 shall be deemed to have been
appointed under this Act on the same terms and conditions including the term of office subject to which
they were so appointed under the said Ordinance or the Resolution, as the case may be.

Explanation. For the purposes of this sub-section, the expression "term of office" shall be construed as
the term of office with effect from the date the Central Vigilance Commissioner or any Vigilance
Commissioner has entered upon his office and continued as such under this Act.

(6) The headquarters of the Commission shall be at New Delhi."

Functions and powers of the Central Vigilance Commission under the Central Vigilance Commission
Act, 2003:

Section 8 of the Act 2003 described the functions and powers of the Central Vigilance Commission.
Section 8 reads as under:

Functions and powers of Central Vigilance Commission (1) The functions and powers of the
Commission shall to be-
 (a) exercise superintendence over the functioning of the Delhi Special Police Establishment insofar
as it relates to the investigation of offences alleged to have been committed under the
Prevention of Corruption Act, 1988 (49 of 1988) or an offence with which a public servant
specified in sub-section (2) may, under the Code of Criminal Procedure, 1973 (2 of 1974), be
charged at the same trial;
(b) (b) give directions to the Delhi Special Police Establishment for the purpose of discharging the
responsibility entrusted to it under sub-section (1) of Section 4 of the Delhi Special Police
Establishment Act, 1946 (25 of 1946):

Provided the while exercising the powers of superintendence under clause (a) or giving directions
under this clause, the Commission shall not exercise power in such a manner so as to require the
Delhi Special Police Establishment to investigate or dispose of any case in a particular manner;

(c) inquire or cause an inquiry or investigation to be made on a reference made by the Central
Government wherein it is alleged that a public servant being an employee of the Central
Government or a corporation established by or under any Central Act, Government company,
society and any local authority owned or controlled by that Government. has committed an offence
under the Prevention of Corruption Act, 1988 (49 of 1988) or an offence with which a public servant
may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial.

(d) inquire or cause an inquiry or investigation to be made into any complaint against any official
belonging to such category of officials specified in sub-section (2) wherein it is alleged that he has
committed offence under the Prevention of Corruption Act, 1988 (49 of 1988) and an offence with
which a public servant specified in sub-section (2) may, under the Code of Criminal Procedure, 1973
(2 of 1974), be charged at the same trial;

(e) review the progress of investigations conducted by the Delhi Special Police Establishment into
offences alleged to have been committed under the Prevention of Corruption Act, 1988 (49 of 1988)
or the public servant may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at
the same trial;

(f) review the progress of applications pending with the competent authorities for sanction of
prosecution under the Prevention of Corruption Act, 1988 (49 of 1988);

(g) tender advice to the Central Government, Corporations established by or under any Central Act,
Government. companies, societies and local authorities owned or controlled by the Central Government
on such matters as may be referred to it by that Government, said Government companies, societies
and local authorities owned or controlled by the Central Government or otherwise;

(h) exercise superintendence over the vigilance administration of the various Ministries of the Central
Government or Corporations established by or under any Central Act, Government companies, societies
and local authorities owned or controlled by that Government:
Provided that nothing contained in this clause shall be deemed to authorise the Commission to exercise
superintendence over the Vigilance administration in a manner not consistent with the directions
relating to vigilance matters issued by the Government and to confer power upon the Commission to
issue directions relating to any policy matters;

(2) The persons referred to in clause (d) of sub-section (1) are as (a) members of All-India Services
serving in connection with the follows: affairs of the Union and Group 'A' officers of the Central

Government: (b) much level of officers of the corporations established by or under any Central Act,
Government companies, societies and other local authorities, owned or controlled by the Central
Government, as that Government may, by notification in the Official Gazette, specify in this behalf:
Provided that till such time. notification is issued under this clause, all officers of the said
corporations, companies, societies and local authorities shall be deemed to be the persons referred
to in clause (d) of sub-section

(1)." Power of the Commission relating to inquiries under Act, 2003 Section 11 of the Act, 2003
describe the power relating to inquiries. Section 11 reads as under: "

11. Power relating to inquiries.-The Commission shall, while conducting any inquiry referred to in
clauses (b) and (c) of sub-section (1) of Section 8, have all the powers of a civil court trying a suit
under the Code of Civil Procedure, 1908 (5 of 1908) and in particular, in respect of the following
matters, namely:

(a) summoning and enforcing the attendance of any person from any part of India and examining him on
oath;

(b) requiring the discovery and production of any document;

(c) receiving evidence on affidavits;

(d) requisitioning any public record or copy thereof from any court or office;

(e) issuing commissions for the examination of witnesses or

(f) any other matter which may be prescribed."

Other documents; and

Proceedings before Commencement under Act, 2003

According to Section 12 of Act, 2003, the proceedings before Commission to be judicial proceedings.
Section 12 of Act, 2003 reads as under:

"12. Proceedings before Commission to be judicial proceedings. The Commission shall be deemed to be
a civil court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2
of 1974) and every proceeding before the Commission shall be deemed to be a judicial proceeding
within the meaning of Sections 193 and 228 and for the purposes of Section 196 of the Indian Penal
Code (45 of 1860).".