The recent notification to implement the Lokpal and Lokayuktas Act, 2013, commonly referred to as the Lokpal Act, has the potential of opening a Pandora's box. Among other directives, the notification states senior office-bearers of any registered society, trust or non-governmental organisation (NGO) receiving more than Rs 10 lakh as foreign contribution or more than Rs 1 crore from the government will be treated as public servants or government employees. This would cover a large number of charitable organisations in India. The notification requires board members, trustees, chairpersons and other office-bearers of such organisations to declare their individual assets - as well as the moveable and immoveable assets of their family members - in public to the home ministry by July 31.
Though it is still unclear whether such people could also be tried under the Prevention of Corruption Act, under which government officials are prosecuted, several NGOs say as "public servants" under this law, this extension is inevitable. The move has already created panic with several senior people associated with NGOs or other charitable organisations already severing their ties and many are in the process of doing so, citing invasion of privacy and fears that the information may be used for harassment. This means many such organisations would lose key board members and trustees working in honorary positions. A few NGOs have already planned to move court on this issue.
There is no doubt that civil society should promote transparency and accountability as the Lokpal idea itself was born from civil society movements. Besides, the NGO sector has often been criticised for its opaqueness. Yet, the idea of treating senior functionaries of these organisations as public servants defies logic for two reasons. First, there are already many rules in place to remove the veil over the flow and utilisation of funds by the sector. This includes reporting to the home ministry on foreign grants, public disclosure of audited annual accounts and annual filing of income-tax returns to justify non-profit status. Besides, the Reserve Bank of India's regulations have led to annual "know-your-customer" filings by all senior officials of such organisations. Second, anyone who receives government grants cannot be subjected to laws like the one for Lok Pal. That is because by that yardstick, all private schools getting government grants, or even autonomous research bodies or think tanks, receiving similar grants, would come under these provisions and their senior employees would become public servants.
This is clearly a loophole in the law and should be plugged, before it becomes an embarrassment for the government, which has often been criticised for targeting those disagreeing with its views. Last year, it cancelled registration of more than 10,000 NGOs under the Foreign Contribution (Regulation) Act for receiving foreign funding. Asking NGOs to follow the principle of transparency cannot be faulted, but the manner in which it is being done raises some legitimate questions. Laws like the Lokpal Act are to be designed to bring clarity about how public behaviour is to be regulated, not add more confusion to it. And there must be clarity in the application of the law and also a clear understanding of what is "public function or activity". To begin with, the government should extend the July 31 time limit. That should not be a problem as it was extended earlier too following a case by the wife of a public servant who had argued that the Lokpal provisions violated her fundamental rights.
