The monumental corruption now manifest in the highest echelons of government and public administration has met with strong opposition in the form of a growing national consensus about the systemic failure of good governance and rule of law in the country. With many public officials accumulating assets disproportionate to their legal sources of income, systematising asset declaration is well-nigh the need of the hour.
Public disclosure of information and reporting are critical in ensuring transparency and accountability. Simply put, it is a case of “sunlight is the best disinfectant”, as US Supreme Court Justice Louis Brandeis would say. India does not have a legal framework that reinforces asset declaration; it follows the tradition of institutional ethics that govern codes of conduct or disclosure rules. However, these are not legally enforceable integrity pledges setting out disclosure obligations. There is no ombudsman uniquely poised to review and monitor declarations of income and assets by public officials. In this regard, following suggestions may be considered.
Rationalising bureaucratic accountability — a call for professional ethics: Rules requiring periodic disclosure of assets and financial dealings by public officials serve a dual purpose: they assist both the official concerned and the government in determining whether conflicting interests exist and provide a baseline and means for comparison to identify assets that may have been acquired through corruption. Based on the recommendations of the Committee on Prevention of Corruption headed by the late K Santhanam, the Central Civil Services (Conduct) Rules, 1964 were notified laying down the Code of Conduct for Central Government Employees with a view to maintaining integrity in public services.
Rules 18 and 18-A require all Class-I (Group A) and Class-II (Group B) public servants employed by the central government to submit a return of assets and liabilities and movable, immovable and valuable property owned, acquired or inherited by them and their immediate family members on first appointment and at such intervals as may be prescribed by the government. Statements of such returns by bureaucrats are deemed confidential under the law. However, the Central Information Commission in a landmark order in November 2009 decreed: “Disclosure of information such as assets of a public servant – which is routinely collected by the public authority and routinely provided by the public servants – cannot be construed as an invasion on the privacy of an individual.”
Moreover, effectively enforcing and monitoring such declarations should form part of the Department of Personnel and Training’s Annual Confidential Reports of government servants with a view to appraising their performance in the areas of their work, conduct, character and capabilities. Creating a framework in which people are hauled up for making false declarations or non-disclosure within accepted time limits would only be wholly effective if they were then subject to forfeiture of the undeclared property.
Ending political exceptionalism — an agenda for rule of law: An interim report by the National Election Watch disclosed that more than 314 crorepati MPs have been elected to the 15th Lok Sabha (2009) — an increase of 100 per cent compared to the 154 crorepati MPs elected to the 14th Lok Sabha (2004).
Given the privileged position that elected representatives of the country enjoy, which gives them unfettered access to public resources and plenty of opportunities to line their pockets, a public interest litigation was filed in 2001. This came from the People’s Union for Civil Liberties, Association for Democratic Reforms and Lok Satta in the Supreme Court seeking a redress of the situation. In a landmark judgment, the Court issued a directive to the Election Commission. It layed down that all candidates filing their nomination papers for contesting national or state-level elections were to declare on oath in an affidavit their assets (moveable, immoveable, bank balance and so on), liabilities, educational qualifications, criminal antecedents and all pending cases of offences in which cognisance has been taken by a court of law. Not furnishing such information at the time of nomination makes the candidate liable to rejection and is considered a violation of the order of the Supreme Court.
Every member of both Houses of Parliament is required within 90 days of taking the oath to submit an annual statement of assets including moveable and immoveable property owned in India and abroad and liabilities owed to any public finance institutions.
Also, the Rajya Sabha (Declaration of Assets and Liabilities) Rules, 2004 specify that the declarations made by MPs are required to be updated every year and can be made available to any person with the written permission of the Chairman. The Lok Sabha (Declaration of Assets and Liabilities) Rules, 2004 specify that the declarations made by the Lok Sabha MPs shall be treated as confidential and shall not be made available to any person without the written permission of the Speaker. Besides initial disclosure, the rules do not contain an express provision for the declaration made by the MPs to be updated in case there is a change in the status of their assets and liabilities.
Despite the proviso under Section 75(A)(5) of the Representation of the People Act, 1951, which makes non-disclosure of assets tantamount to a breach of privilege of the House, there are no penalties severe enough to act as a significant deterrent for failing to disclose as required or for making false or misleading disclosure. The flagrant violations of parliamentary norms have seen 110 Lok Sabha MPs failing to declare their assets even eight months after their election to the 15th Lok Sabha, as reported by major national dailies.
It is imperative that constitutional bodies like the Election Commission of India play the role of an independent asset-monitoring body for the purpose. Successful enforcement needs to be institutionalised with the Election Commission having a clear mandate, capacity, resources and punitive powers to build an internal system that keeps and manages proper records, and monitors the timeliness and the validity of the assets declared by public functionaries. It must also have a system of checks on the accuracy of declarations, routinely policing income tax returns of the politicians whose assets are being monitored.
In addition, it would serve well if the election law requires candidates seeking election to Parliament to declare on oath that they have no undeclared wealth or property overseas. They must also declare that if any such assets are discovered then they authorise the government to confiscate those assets. Such a provision would empower the government to confiscate or recover any such ill-gotten wealth stashed away in foreign banks.
Reigning in political parties — a demand for internal democracy: The law in India dealing with disclosure of election and party funding is weak. The Income Tax Act exempts the income of a political party under Section 13 (A) from taxation. Parties are bound by law to maintain accounts regularly, record and disclose names of donors contributing more than Rs 10, 000 and have their accounts audited by a qualified accountant. For such disclosure norms to be institutionalised, political parties should submit an audited statement of accounts to the Election Commission and the Income Tax authorities each year and after every general election. All such information on political contributions and expenditure by parties should be made public through print and electronic means. The Election Commission should be the final authority to verify, audit and determine the disclosure of financial statements. Non-compliance by political parties should invite de-recognition and de-registration for a fixed number of years.
The institutional ability, especially of the Election Commission and Department of Personnel and Training, to ensure that political commitments are actually carried out needs to be buttressed. Necessitating citizen empowerment by raising awareness and ensuring public participation in information disclosure and reporting is required more than ever. Therein lies the success of sustained public action towards clean governance.
The writers are with the Public Interest Foundation, New Delhi
