Disclosure of assets: It is not clear if the Government of India intends this for ‘public servants’ other than ‘civil servants’

disclosureBy Venkatesh Nayak*

The media has reported about the Rules notified by the Department of Personnel and Training (DoPT), Government of India, for the filing of information and annual returns relating to assets and liabilities for all public servants covered by the Lokpal and Lokayuktas Act, 2013. What is good about this notification? The notification of these Rules is a step forward from the statutory requirement under the Right to Information (RTI) Act, 2005. Under Section 4(1(b)(x) of this law, every public authority is required to proactively disclose details of salary paid and the compensation package offered to every civil servant who is its employee. However, there was no statutory compulsion on civil servants to publicly disclose information about their movable and immovable properties inherited or acquired. So several RTI users demanded the publication of this information under the RTI Act by filing formal requests.

While some Information Commissions ordered disclosure of information contained in the immovable property returns submitted by civil servants every year, others rejected the request upholding the official’s right to privacy. In at least one case, an RTI activist in southern India who sought such information about a senior level officer, had to be provided gunman security as the request snowballed into a public altercation between the two.

The matter of disclosure of assets related information was settled, rather unsatisfactorily, by the Supreme Court of India in the case of Girish Ramchandra Deshpande vs Cen. Information Commr. and Anr. (2013) 1SCC 212. In that case the Apex Court ruled that unless the RTI applicant is able to demonstrate the public interest in disclosure, every public servant is entitled to confidentiality vis-a-vis his/her assets related details.

The new Rules notified by the Government of India known as Public Servants (Furnishing of Information and Annual Return of Assets and Liabilities and the Limits for Exemption of Assets in Filing Returns) Rules, 2014 (PSAR Rules) require every public servant to make a declaration attaching details of his/her assets as well as those of his/her spouse and dependent children to the competent authority within 30 days of taking an oath of making an affirmation for entering public office. Thereafter, he/she must submit annual returns for every financial year by July 31 of the very next financial year.

The Rules contain an Appendix setting forth the form of declaration and the manner of disclosure of both movable and immovable assets. The public servant must also disclose details of loans taken by self, spouse or dependent children. These declarations and submissions will be made to the competent authority in every public authority.

These Rules render a portion of the judgment of the Apex Court in Girish Ramchandra Deshpande obsolete. Section 44(6) of the Lokpal and Lokayuktas Act requires the competent authority which receives assets and liabilities related information of public servants to make them public through websites by the end of August every year. If this information is not available on the respective websites, a citizen may seek this information formally under the RTI Act from the public authority.

Members of Parliament submit their assets and liabilities details to the Chairpersons of the respective Houses under the respective Rules adopted in 2004. However, access to these statements was not easy as disclosure to strangers was left to the discretion of the Chairpersons. These details were not easily available under the RTI Act either. Now this discretionary power is done away with thanks to Section 44 of the Lokpal Act. This provision contains mandatory disclosure of assets and liabilities details of all public servants including that of MPs. This is another progressive step towards developing a culture of personal integrity for holders of elected offices.

What is problematic about this notification?

(1) Section 44 of the Lokpal and Lokayuktas Act (Lokpal Act) covers three kinds of statutory disclosures:

a) When a public servant enters his/her office upon being sworn by oath or affirmation.

b) Serving public servants are required to make disclosures of their assets and liabilities within 30 days of the enforcement of this Act.

c) Later on, all public servants must disclose details of their assets and liabilities as well as that of their spouse and dependent children every year.

Rule 3 of the PSAR Rules states that the templates contained in Appendices I and II are to be used for filing all three kinds of returns listed above. However, all the templates in Appendix II of the PSAR are titled “Return” or “Statement” to be filed on “First Appointment”. While this will serve the purpose of the first statutory requirement of disclosure for new recruits, it is wrongly titled for the next two categories of officers who will make disclosures every year and upon the enforcement of this Act. This confusion in the title of the declaration and statements of movable and immovable properties must be removed immediately and appropriately titled forms must be released for each category.

(2) The Lokpal Act covers all categories of public servants in Section 14. These include the Prime Minister, Union Ministers, Members of Parliament, civil servants, employees and managers of public sector undertakings, universities, boards, trusts and societies or autonomous bodies wholly or partly financed by the Central government and any organisation which receives foreign contribution of more than Rs. 10 lakh per year under the Foreign Contribution Regulation Act, 2010. The Prime Minister is the competent authority for receiving declarations of assets and liabilities of the Union Ministers as per the Code of Conduct adopted first in 1964 and revised later in 1992 (4th attachment).

This Code does not require the Prime Minister to disclose his/her assets to anybody. However, Section 44 read with Section 14 of the Lokpal Act requires the Prime Minister also to publicly declare his/her assets. So the Government will have to notify who the competent authority shall be to receive the PM’s first declaration and subsequent annual returns under this Act and make them accessible to the public. Perhaps it should be the President as he alone is higher in the executive hierarchy to the PM. The Government of India must issue a clarification on this issue. It is not clear if the templates notified by the DoPT are intended for the use of ‘public servants’ other than ‘civil servants’.

The larger issue will be securing compliance in the non-governmental organizations in the social and voluntary sector which receive foreign funding above Rs. 10 lakh per year. Their directors, managers, and officers will also have to make disclosures of their assets and liabilities to the competent authority in such organizations. These will have to be made public on their respective websites. However, there is no clear cut mechanism in the Lokpal Act to ensure such compliance.

(3) According to the text of the gazette notification of the Rules, it was to be published in Official Gazette on July 14, 2014. However, this set of Rules is not uploaded either in the Ordinary Gazette Section or the Extraordinary Gazette Section of the E-gazette website of the Government of India.

(4) These Rules do not come up under the ‘What’s New’ Segment of DoPT’s website either. Instead it is tucked away in the Circular Portal of GoI which is password protected. However readers may access it through Google by keying in the complete title of the Rules. (Link: http://ccis.nic.in/WriteReadData/CircularPortal/D2/D02ser/MX-M452N_20140716_172536.pdf)

The Government of India ought to have advertised these Rules in a big way as it is such a novel step forward in bringing about more accountability and transparency in the functioning of the bureaucracy. Integrity systems will be strengthened through such disclosures. However the quiet manner in which this Rule has been notified is perplexing to say the least. Nevertheless, all credit must go to the State Government of Bihar for taking such a step for its public servants in 2011.

Starting with the Chief Minister and down to the clerical staff, every public servant was required to publicly declare their assets and liabilities annually. However, this practice seems to have died out after two years because the assets related information on this website has not been updated since 2013.

*Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative, Delhi
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