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- Special issues
The eighth and final article in the series related to the fourth periodic report submitted by India under Article 40 of the International Covenant on Civil and Political Rights (ICCPR) examines freedom of association, information and against corruption.
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Read Part 1 here.
Read Part 2 here.
Read Part 3 here.
Read Part 4 here.
Read Part 5 here.
Read Part 6 here.
Read Part 7 here.
This article takes a deep dive into the government of India's claims on freedom of association and the right to freedom of information and impunity and corruption and pits them against the reality.
Specifically, the government of India was requested to "comment on the reported misuse of the Foreign Contribution (Regulation) Act, 2010 to impede the legitimate activities of civil society organisations working on politically sensitive matters, including matters concerning human rights, by cancelling, suspending and refusing to grant or renew foreign funding licences, and on the freezing of assets and shutting down of non-governmental organisations based on alleged violations of foreign funding regulations, as in the case of the human rights organisations Lawyers Collective, Sabrang Trust, Navsarjan Trust, People's Watch and Amnesty International India.
“If you believe the government of India's reply in Para 145 of its reply, you could also believe that the cow jumped over the moon.
"Please respond to reports of criminal proceedings being initiated against Indira Jaising and Anand Grover of the Lawyers Collective for the alleged misuse of foreign funding under the Act, supposedly in retaliation for their human rights work."
If you believe the government of India's reply in Para 145 of its reply, you could also believe that the cow jumped over the moon.
Read below: "India is committed to ensuring a safe working environment for people engaged in promotion and protection of human rights. At the same time, India believes that the activities of human rights defenders should be in conformity with the law of the land and the rights guaranteed by the Constitution.
With regard to the criminal proceedings pending against Ms Indira Jaising and Mr Anand Grover of the Lawyers Collective, the allegations are that the organisation received foreign funds between 2009 and 2015 but failed to disclose a major part of them, which was in violation of the Foreign Contribution Regulation Act (FCRA) and Indian tax laws.
Also read: Free speech underpins all other freedoms
The matter is currently pending before the Supreme Court. In the last hearing, the court gave a clear direction that the investigation agencies can probe the case in accordance with the law."
Other civil society organisations have made their own submissions to the UNHRC on this and related issues, but it is essential to nail the canard against a respected organisation, The Lawyers Collective.
The Lawyers Collective had this to say on the matter, "The reality is that the statement made by the government is incorrect. All the funds that were received by the Lawyers Collective, not only between 2009 and 2015, but throughout, were disclosed, not only to the FCRA authorities, which is under the Union home ministry, but to the income tax authorities under the administrative control of the Union ministry of finance and the charity commissioner on a yearly basis as required under law.
"In fact the Lawyers Collective bank accounts have been attached because of the work that they have done for the communities of People Living with HIV (PLHIV), women, etc., which is not to the liking of the government.
"Though the Supreme Court allowed the investigation to proceed, the Lawyers Collective approached the Bombay High Court which directed that no coercive action be taken. Moreover, the first information report (FIR) was registered in June 2019. After nearly five years, nothing has come of it."
In Paragraph 14 of its reply, the government of India states:
"The right to know and be informed has on numerous occasions been found to be an integral part of the freedom of speech and expression by the courts in India, particularly in the context of the functioning of democratic institutions."
The Supreme Court of India in Peoples Union for Civil Liberties versus Union of India had observed that the "right of information is a facet of speech and expression as contained in Article 19(1)(a) of the Constitution of India. Right of information, thus, indisputably is a fundamental right".
“Other civil society organisations have made their own submissions to the UNHRC on this and related issues, but it is essential to nail the canard against a respected organisation, The Lawyers Collective.
The fundamental right to know has been given statutory recognition in the form of the Right to Information (RTI) Act, 2005, which established a responsive regime for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability at all levels of governance.
The following note is a counter by Venkatesh Nayak, Director, the Commonwealth Human Rights Initiative, to certain claims contained in the government of India's report.
Counter to certain claims contained in Paragraph no. A (3) and Paragraph no. 14 of the government of India reply:
In 1975, in a landmark judgment involving a challenge to the election of an individual who was occupying the post of the Prime Minister of India (to Parliament's House of the People i.e., the Lok Sabha), the Supreme Court of India ruled that in a government of responsibility, people have a right to know every public act, everything that is done in a public way by public functionaries.
This right was deemed a fundamental right within the meaning and scope of the fundamental right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution.
However, the Union government enacted and implemented a national law to give effect to this fundamental right only in 2005, bowing down to pressure from grassroots-level people's movements, civil society actors, academics and mass media.
The RTI Act covers all State agencies wholly or partially (as in the case of security and intelligence agencies) and entities in the non-government sector that receive substantial financing from the government in a direct or indirect manner.
Arguably one of the most popular laws enacted after independence, between four–six million information requests are lodged by citizens every year seeking transparency and accountability from the government at various levels under the statute.
The RTI Act provides for an autonomous dispute resolution mechanism in the form of information commissions if the internal appeals systems fail to resolve the grievances of information-seeking citizens.
“In 2019, the Union government pushed through Parliament an amendment to the RTI Act to usurp the powers to determine the tenure and service conditions of all information commissioners across the country.
The Central Information Commission (CIC) adjudicates information access disputes between information requesters and the Union government; and State Information Commissions (SICs) perform similar functions and responsibilities at the state level.
The original RTI Act stipulated the tenure (maximum of five years or until the age of 65 years) and the service conditions for all information commissioners at the Union and the state levels.
Central information commissioners and the heads of SICs were equal in rank to the election commissioners of India— a constitutional position. The remaining state information commissioners were equal in rank to the highest-ranking civil servant in the state.
However, in 2019, the Union government pushed through Parliament an amendment to the RTI Act to usurp the powers to determine the tenure and service conditions of all information commissioners across the country ignoring the serious and very vocal objections raised by Opposition parties, civil society organisations and the mass media.
The amendment Bill was not even referred to a parliamentary standing committee for detailed vetting which would have required the citizenry to be consulted.
Subsequently, the Union government notified Rules to limit the tenure of newly appointed information commissioners for a period of three years with the possibility of reappointment for another two-year term.
The rank-related parity of Central information commissioners and heads of SICs was discarded, thereby lowering the prestige and gravitas of these bodies in the eyes of the bureaucracy.
Despite the burgeoning volume of information access disputes resulting from the increasing tendency of the bureaucracy to resist the implementation of the statutory mandate of transparency, the government at the Union and state levels have rarely filled up the vacancies in the information commissions.
In fact, since May 2014, efforts to fill up the vacancies in the CIC and the SICs had not been initiated even once by the respective governments until questioned by the Supreme Court of India in the course of hearing public interest litigation suits filed by RTI activists.
The CIC has 23,103 cases pending before it currently, with eight vacancies yet to be filled. The minimum waiting period for the disposal of a case by the CIC is between 10-12 months due to this huge pendency.
It may take much longer for cases to be resolved in other SICs which function with one or two information commissioners. On the 18th anniversary of the RTI Act in October 2023, four SICs in Jharkhand, Mizoram, Telangana and Tripura had become defunct because none of the vacancies had been filled up.
Counter to certain claims contained in Paragraph no. 12 of the government of India's reply:
Despite the immense popularity enjoyed by the RTI Act as a tool that empowers private citizens to ask questions and demand answers from the government about their actions and omissions, the implementation of this seminal law has not been without its violent fallout.
“Despite investigations being carried out by law enforcement agencies at the Union and state levels, the perpetrators in the very first case of the alleged murder of an RTI activist have not been identified even after 14 years.
As of 2018, more than 65 RTI activists had been allegedly murdered, and more than 380 others physically assaulted, often brutally, or threatened or harassed due to their use of the RTI Act to unearth petty and big-ticket corruption.
Nevertheless, the justice delivery system has rarely been able to punish the culprits resulting in the creation of an atmosphere of impunity for the perpetrators who in some cases happen to be legislators.
Despite investigations being carried out by law enforcement agencies at the Union and state levels, the perpetrators in the very first case of the alleged murder of an RTI activist have not been identified even after 14 years.
Governments at the Union and state levels have completely failed to put in place any protective mechanism to prevent such attacks. Parliament enacted the Whistleblowers Protection Act in 2014.
Even though this law does not provide any protection for citizens who are attacked only because they have sought information to expose corruption and wrongdoing in government, it provides several measures to protect RTI users who expose irregularities and malfeasance in government.
Nevertheless, this law has remained a dead letter for over a decade because the Union government has not brought it into force. None of the state governments have enacted whistleblower protection laws either as they wait for the Union government to enforce the existing law.
Counter to certain claims contained in paragraph no. 12 of the government of India reply:
In 2018, the Union government pushed through Parliament a series of amendments to the Prevention of Corruption Act, 1988. The amendment created a new offence of bribe-giving which is punishable with a prison term of up to seven years or with fine or both, unless the bribe-giver reports such action to the competent authorities within seven days or if he/she is compelled by the authorities to pay the bribe.
However, the scope of actions that constitute 'criminal misconduct' on the part of the public servant under the Act has been diluted considerably. In the original version, actions such as habitually taking bribes, accepting anything or consideration for free or obtaining pecuniary advantage for oneself without any public interest being served were all termed 'criminal misconduct'.
“The RTI Act covers all State agencies wholly or partially (as in the case of security and intelligence agencies) and entities in the non-government sector that receive substantial financing from the government.
The amendments restrict criminal misconduct to only fraudulent misappropriation of property and illicit gain such as amassing assets disproportionate to the public servant's known sources of income.
Further, the amendment introduces a prohibition on the commencement of any inquiry or investigation into any complaint of corruption against a public servant.
Prior approval of the relevant government or competent authority is necessary before the anti-corruption agency can even commence an inquiry or investigation into a complaint of corruption (unless the public servant is caught in the act of accepting bribes).
Further, the amendments bar any person other than the investigating officer or agency or law enforcement authority from making a request to the relevant government or the competent authority to accord sanction for the purpose of the competent court to take cognizance of any offence under the Act and set the prosecution process in motion.
Even though the amendments set a time limit of three months (extendable by one month if legal consultation is required) for the relevant government or competent authority to make a decision on the request for sanction for prosecution, the amendments are silent about what will happen to the case if such time limit is breached and no decision is made on the request.
The amendments do not provide for the 'deemed sanction' principle if the limitation period is breached.
Further, despite having an obligation to enact and implement a law to criminalise bribery of foreign public officials, the State has not made much progress in this regard after 2012.
“In the original version, actions such as habitually taking bribes, accepting anything or consideration for free or obtaining pecuniary advantage for oneself without any public interest being served were all termed 'criminal misconduct'.
In 2011, the government introduced the Prevention of Bribery of Foreign Public Officials and Officials of Public International Organisations, Bill 2011, upon the recommendation of the Law Commission of India.
This Bill was referred to a department-related standing committee for detailed vetting. However, that Bill lapsed with the dissolution of the House of the People (Lok Sabha) in May 2014 after the completion of the general elections to Parliament. The present government has not gone back to Parliament to legislate on the subject again.
Further, currently, there is no formal mechanism to receive, investigate and prosecute complaints of corruption against judges of constitutional courts (high courts and the Supreme Court of India).
In 2010, the then government introduced in Parliament, the Judicial Standards and Accountability Bill, seeking to create a mechanism for receiving and inquiring into complaints of corruption and other kinds of misconduct against sitting judges of the high courts and the Supreme Court of India.
This Bill was extensively debated within and outside Parliament. However, that Bill lapsed with the dissolution of the House of the People (Lok Sabha) in May 2014 after the completion of the general elections to Parliament.
The present government has not gone back to Parliament to legislate on the subject again. The Lokpal Act, 2013, which creates the Lokpal as India's apex anti-corruption investigation and prosecution agency does not have jurisdiction to receive or investigate complaints of corruption against members of the judiciary.
However, the Supreme Court of India has instituted an in-house procedure to receive and inquire into complaints against its judges. Similarly, a complaint against a sitting judge of the high court may be submitted to the chief justice of that high court or the Chief Justice of India.
Counter to certain claims contained in Paragraph no. 93 of the government of India reply:
Even after 17 years having lapsed after the Supreme Court issued specific directives to the Union and state governments to establish authorities at the district and the state levels to receive and inquire into complaints against serving police personnel, compliance remains extremely poor across the country.
“The amendments do not provide for the 'deemed sanction' principle if the limitation period is breached.
An evidence-based study of the constitution and functioning of the state police complaints authorities (PCAs) completed and released in December 2023 has come up with the following findings:
1. Only 11 of the 28 states and seven Union territories (UTs) had functional PCAs as of June 2023. Appointments had been made to three more such bodies in other states but they were yet to become fully functional.
Civil society organisations and public-spirited lawyers have had to take recourse to public interest litigation suits to get high courts to question the non-compliant state governments about dysfunctional PCAs.
2. Nine states and UTs have serving police officers as members of the state PCAs which is a complete violation of the Supreme Court's 2006 directive in Prakash Singh versus Union of India & Others that such bodies must be independent of government control.
Only two states have civil society members on the state PCAs which is also another violation of the court's directives.
3. Several states and UTs have diluted the mandate of the state PCAs and severely restricted the definition of 'serious misconduct' which allegations they must investigate based on complaints received from the citizenry.
4. Only 50 percent of the state PCAs across the country have developed their own Rules of Procedure to act upon complaints received against police personnel.
Only two state PCAs in Assam and Tripura have dedicated investigation cells to investigate such complaints. In other states, state PCAs are dependent upon the respective police departments to investigate complaints of serious misconduct against their own personnel.
5. Data obtained through the RTI Act shows that people complain to the SPCAs in the hundreds and thousands. However, a large number of them are about omissions of the police or non-registration of crime-related complaints (first information reports or FIRs).
As such matters are not included in the definition of 'serious misconduct' the state PCAs end up admitting only a fraction of complaints for investigation.
“The Supreme Court of India has instituted an in-house procedure to receive and inquire into complaints against its judges.
6. Even when only a small fraction of the complaints admitted are investigated, the process takes a long time to reach finality. Cases remain pending for several years. State PCAs recommend action against the erring police personnel in very few cases while most of the complaints are simply closed.
7. Where the state PCAs recommend action to be taken against erring police after the completion of an investigation into a complaint of serious misconduct, state governments rarely act on them.
8. Only a handful of state PCAs (Assam, Delhi, Karnataka, Tripura and Uttarakhand) publish annual reports about their performance. Only the Karnataka PCA publishes its annual reports in the official language of the state apart from English.
Note: Two of Lawyers Collective's founders, Indira Jaising and Anand Grover, are also founders of The Leaflet.
