Are there different standards for assets and liabilities declarations for public servants?

The Central Government has tabled a Bill to amend Section 44 and the related rule-making provision in Section 59 of The Lokpal and Lokayuktas Act, 2013 (LL Act). The substance of the proposed amendments tabled in the Lok Sabha today is as follows:

1) The Bill seeks to replace the present formulation of Section 44 of the LL Act with a one-line clause requiring "only a public servant" covered by the law to declare his/her assets and liabilities in the prescribed form and manner.

2) The Bill seeks to amend the rule-making provisions in Section 59 to empower the government to make rules regarding the form and manner of declarations of assets and liabilities that will have retrospective effect.

Preliminary analysis of the proposed amendments:

1) The current formulation of Section 44 regarding declaration of assets and liabilities covers not only the public servant but also his/her spouse and dependent children. The proposed amendments will restrict the declaration only to the assets and liabilities of the public servant. Assets and liabilities of the spouse and dependent children will be exempt from such declarations.

2) The current formulation of Section 44 requires mandatory public disclosure of the assets and liabilities statements by public servants on the official websites of their ministries and departments. The proposed amendments seek to do away with this proactive disclosure requirement. So people will not have access to the assets and liabilities statements of the public servant at all under the LL Act. This will only be a non-public declaration. 

3) Although some sections of the media reported that NGOs will be benefited by these amendments, the only benefit that I can recognise is what is available to other public servants, namely, disclosure of assets and liabilities only for self and not for one's spouse and dependent children and of course the declarations will not be made public proactively. NGOs office bearers specified in the LL Act such as directors, secretaries, managers and other officers will still have to submit their assets and liability declarations to the concerned authorities. In the case of NGOs covered by the Foreign Contribution Regulation Ac, 2010 declarations by their office bearers will have to be submitted online to the Union Home Minister. However, recent news reports indicate, the Government is contemplating extension of the deadline for this requirement.

Implications of the proposed amendments

Sri Lanka was the first country in S. Asia to have a law on assets disclosures for public servants during the 1970s. The law then required such declarations to be kept confidential. However amendments made in 1988 permitted people to seek copies of such declarations on payment of the prescribed fee, but restrictions were imposed on the use of such information for publication or for initiating legal action against the public servant. 

The proposed amendments to the LL Act take India back to the Sri Lankan situation in the 1970s regarding assets and liabilities disclosure requirements. 

1) It’s quite possible that the assets and liabilities declarations of IAS, IPS and IFoS officers which are currently in the public domain, may be withdrawn if the amendments to the LL Act are approved by Parliament. 

2) The proactive disclosure of the assets and liabilities declarations of Union Ministers under the Code of Conduct applicable to them may also go offline as a result of the amendments to the LL Act. Currently, the PMO website displays the assets and liabilities declarations for only 4 Cabinet Ministers and 2 Ministers of State for the year2015-16. According to data available on the PMO website two Cabinet Ministers and a handful of Ministers of State are yet to cause their assets and liabilities statements disclosed for 2014-15. 

Similarly, under Section 75A of the Representation of the People Act, 1951 all individuals elected to either House of Parliament are required to furnish their assets and liability statements to the Chairs of the respective Houses. Such declarations must include assets and liabilities details of their spouses and dependent children. Both the Lok Sabha and the Rajya Sabha have made Rules for ensuring compliance with this statutory requirement. These declarations are not automatically made public. People have sought this information under The Right to Information Act, 2005 often with success. Interestingly, Section 75A does not apply to members of State Legislatures.

Further, every candidate contesting elections to Parliament or the State Legislatures or the offices of the President and the Vice President of India are required to furnish on affidavit their assets and liabilities declaration apart form data about their educational background and criminal antecedents, if any, to the Election Commission of India. This information is required to be made public thanks to the pronouncements of the Hon'ble Supreme Court of India in 2002 and 2003 in PILs brought before them by ADR and PUCL. These affidavits containing details of assets of electoral candidates, their spouses and dependents is publicly accessible not only on the website of the ECI, but also on the notice boards of the Returning Officers prior to elections. So if the amendments to the Lokpal Act receive parliamentary approval, MPs will be setting a standard for government servants that is at variance with the transparency standards that bind them during elections.

Thanks to the furore created by the judges' assets case in 2009-2010, judges several High Courts, followed by the judges of the Supreme Court of India started voluntarily disclosing their assets and liabilities statements. Under the LL Act all such statements would have to be proactively disclosed on the websites of these courts. Will this practice be retained or discarded after the proposed amendments to LL Act pass muster in Parliament, remains to be seen.

Several States amended their Panchayati Raj laws requiring candidates contesting elections to panchayats to declare their assets and liabilities details on affidavit. Whether these statutory provisions will continue to remain or be wound up by those States, in the aftermath to the amendments to the LL Act remains to be seen.

So, all in all, different standards for assets and liabilities declarations for public servants are likely to operate in India if the amendments to the LL Act are approved by Parliament.

Venkatesh Nayak

Asking for the details of the assets of even the spouses of the Civil servants and making them public is stretching transparency too far. Their privacy should be respected. Alternatively, it may be debated whether the asset details of all the citizens should be made put on the web?

EDITOR