Tag Archive | Legislature

‘Supreme’ Audit– ‘Shutting Stable Door After Steed Is Stolen!’ – By Mukesh Jhangiani

                                                                                                  June 23, 2002

 

 

Snapshot from Audit Document of Comptroller an...

Snapshot from an Audit Document: Of 1209 paras CAG submitted in 1997-98, PAC discussed only 16 (Photo: Wikipedia)

‘Supreme’ Audit– ‘Shutting Stable Door After Steed Is Stolen!’

 By Mukesh Jhangiani
United News of India

New Delhi (UNI) – India’s Comptroller and Auditor General (CAG) has acknowledged at least two instances in which Parliamentary recommendations arising from its findings have gone unheeded for 25 years, suggesting that the country’s ”supreme” audit system is not as effective as it should be.

   Both instances pertain to the University Grants Commission– its ”inequitable” distribution of grants between Central and State Universities and its failure to produce ”utilisation certificates” for Rs 511.37 crore grants made between 1958-59 and 1988-89.

   The Public Accounts Committee of Parliament had recommended steps to mend each situation, but, according to a CAG report, the steps were not implemented in either case. Here are excerpts of the report:

   ”During 1969-70 to 1975-76 the share of development grant of Central and Deemed Universities was 41 per cent against 59 per cent of State Universities.

   ”(The) PAC in its seventy third report (Sixth Lok Sabha) while disapproving the inequitable distribution of grants had directed (the) UGC to play a positive role in creating conditions to enable the State Universities and Colleges to take advantage of the facilities of development grant.

   ”Despite this inequity in the disbursement of development grant, it increased constantly since then and during 1992-93 to 1999-2000 the share of 15 Central Universities alone stood at 53.43 per cent as against 46.57 per cent of 212 Deemed and State Universities.

   ”Thus, (the) UGC failed to take effective measures to eliminate disproportionate disbursement of grants, despite the recommendations of (the) PAC 25 years ago…

   ”As many as 50,877 utilisation certificates (UCs) involving Rs 511.37 crore pertaining to the period 1958-59 to 1988-89 were outstanding as on 31 March 1999. (The) UGC failed to provide updated information as the details are yet to be compiled.

   ”On the basis of recommendations of (the) PAC in its 73rd Report(Sixth Lok Sabha) it was decided to constitute peripatetic parties for on the spot liquidation of outstanding utilisation. However, no peripatetic party was constituted as of July 2000.”

   The CAG’s report did not name the officials responsible for the failure nor did it explain how or why the situation was allowed to remain unsorted for so many years.

   Dr Bhimrao Ramji Ambedkar, one of the authors of India’s constitution, thought of CAG as ”the one man who is going to see that the expenses voted by Parliament are not exceeded, or varied from what has been laid down by Parliament in what is called appropriation Act.” He held the CAG’s duties to be ”far more important than the duties of the Judiciary”.

   The incumbent CAG, Vijayendra Nath Kaul, is an Indian Administrative Service officer appointed to the post three months ago by President K R Narayanan, to whom he reports. According to official documents, the CAG, as head of the Indian Audits and Accounts Department, is assisted by about 60,000 employees in over 90 offices across the nation. The Department has a Rs 846 crore budget– bulk of it spent on staff pay and allowances.

   The CAG’s reports on the accounts of the Union submitted to the President are laid before each House of Parliament, and those on the States submitted to the respective Governor are laid before the legislature.

   They contain objections and remarks over errors committed by government authorities in spending money– specifying non-spending, under-spending, overspending and misspending of allocated funds.

   In Parliament, they are routed either to the Public Accounts Committee (PAC)– which scrutinises sections on central ministries, departments and offices– or the Committee on Public Undertakings(COPU)– which goes over sections on central public sector undertakings (PSUs).

   Representatives from the ministries and departments appear before the Committees when matters relating to them are taken up to answer questions raised by members on the basis of the report of the CAG, who is present during the hearings.

   The Committees’ conclusions and recommendations are presented to Parliament and the Ministries concerned required to file action taken reports.

   A PAC official said matters reported by the CAG are usually gone into, the process sometimes involving more than one Action Taken reports.

   As to the system countenancing a lapse of 25 years just to find that steps recommended by the PAC were not acted upon, the official appeared surprised by the allusion to the observation made in the CAG’s report.

   But Chhattrapal Singh, a Lok Sabha Member who has been in the PAC four years in a row, said such occurences owed to the non-binding nature of its recommendations. ”That’s the lacuna in the Parliamentary system. It must be remedied by making the recommendations of the PAC mandatory.”

   A Bharatiya Janata Party Member from Uttar Pradesh, Singh said, ”To allow a choice in whether or not to implement recommendations after two eminent bodies– the CAG and the PAC– have gone into a matter raises questions about our earnestness to end corruption and improve administration.”

   Critics say such audit exercises mean little unless those responsible are brought to book– something over which India’s CAG is powerless. Critics say all that constitutional authority and elaborate auditing machinery notwithstanding there are several weaknesses in the system. And the situation is no different in the States.

   In countries such as  Germany, Japan, China, France and New Zealand auditing officers have powers to summon erring officials and make them pay from their own pockets for losses caused by them to the State. In some serious cases the erring official is imprisoned after institution of criminal proceedings in a court of law.

   In India, a group of Government appointed experts recently pointed to the fact that the CAG does not even have the power to summon government officials who commit irregularities to ask them to explain their decisions– let alone make them pay for the loss caused or punish those stealing public funds.

   Stressing that a primary audit function is to see that provisions of law, rules and regulation are properly applied in incurring expenditure or collecting revenue, experts reported that ”while audit notices systematic violation of law, rules and regulations by departmental officers it is unable to take an effective action to prevent them.”

   They cited the Bihar fodder scam. ”Serious financial irregularities and misappropriation of government funds were being committed by senior government functionaries and the Treasury officials all acting together in collusion.

   ”The Accountant General (AG) Bihar could not detect the irregularity in time as Treasury officers suppressed the vouchers through which money was drawn and did not transmit them to AG thus preventing its audit.

   ”(The) CAG has been making mention of excess drawal over voted provision in its Audit Report presented to Bihar Legislature but Public Accounts Committee, it is said, did not even me(e)t to discuss the report leave apart take preventive action.

   ”After the scam became public knowledge, (the) CAG has produced a well documented Audit Report but it is more a case of getting wise after the event– after crores in public money has been looted and shutting the stable door after the steed has been stolen.”

   The experts noted that the PAC’s functions included examining the Government explanation for extra expenditure and presenting a report to the legislature recommending regularisation– a necessity as all government expenditure must have the sanction of the legislature.

   But the group reported that ”In many States, (the) PAC’s have not been able to discharge even the  Constitutional obligation of regularising ‘excess expenditure’ over budgetary grants.”

   It cited how Rs. 94,314 crore excess expenditure was not regularised as of 1999– Rs 22,767 crore in Jammu and Kashmir, 13,618 crore in Uttar Pradesh, Rs 12,569 crore in Assam and Rs 6,059 crore in Bihar.

   ”Thus in almost all the States huge amount of public money has been spent  in violation of budgetary control envisaged in the Constitution and fraught with the risk of misappropriation of public money,” the group noted.

   The situation has arisen because no time limit is set for regularisation, experts said. ”There is no time limit prescribed for placing Appropriation Accounts certified by the CAG in Parliament or State Legislature and the regularisation of excess expenditure over voted grants by the PAC.”

   At the Central level, the Parliamentary PAC and COPU have not been able to examine all audit reports submitted by the CAG.

   In 1997-98, for instance, of 16 reports containing 1209 paras submitted by the CAG, the PAC selected 76 paras for review but was able to discuss only 16 of them.

   The implication: these committees are able to examine only a tiny fraction of the contents of the CAG’s multi-volume reports, ”which defeats the very purpose of parliamentary financial control and the accountability of Executive which Parliament is required to enforce”.

   But a senior official aiding the PAC said that even the CAG paras that are not ticked for detailed attention or examination are circulated to the departments concerned for their Action Taken Notes. The PAC, taking ”serious note of the prevailing laxity and the formalistic ritual with which the ATNs on the non-selected paras are generally furnished,” has decided to examine all ATNs, the official said.

   He cited the CAG’s unselected para on the purchase of a Rs 1.42 crore house for India’s Consulate General at Frankfurt that came with  a ”heated indoor swimming pool with a sauna bath cabin and a separate shower room”. The problem: Recurring pool maintenance costs. The outcome: The Mission was ”instructed to exercise restraint to meet any unnecessary expenditure on the maintenance of the swimming pool”.

   The experts’ group suggested need to empower Audit Officers to pursue their findings by summoning the officers concerned for evidence on oath and, where default is established, taking steps for recovery of loss or disciplinary action under the Civil Services Conduct Rule or initiation of criminal action under the Penal code in cases involving criminal liability.

   For that matter, experts noted that the CAG itself is dependent upon public funds for functioning and therefore must be held accountable to Parliament for its spending decisions.

   In countries such as Britain and Australia, independent auditors audit CAG accounts and a Parliamentary committee oversees their work.

   But in India, there is no external audit of the accounts of the CAG’s office, proclaimed as India’s ”Supreme Audit Institution”.

The CAG nominates one of the Accountants General under him as an auditor for the CAG’s office. Experts believe that the accounts of the CAG must also be scrutinised independently.

   ”The operations of the office of the CAG itself should be subject to scrutiny by an independent body. To fulfil the canons of accountability, a system of external audit of CAG’s organisation should be adopted for both the Union and the State level organisations,” the expert report said.

   UNI MJ YJ HS1011

Whither Reform ? Time To Audit Law-making ? – By Mukesh Jhangiani

                                                                                                                        February 19, 2006

Whither Reform ? Time To Audit Law-making ?

By Mukesh Jhangiani
United News of India

English: Parliament building in New Delhi (San...

Where Laws Are Made – Sansad Bhavan or Parliament Building (Photo: Wikipedia)

New Delhi (UNI) – Pendency went up 25 per cent – to 30 million cases – as authorities spent 2005 computerising courts, equipping judges with laptops, promoting arbitration and legal literacy and planning nyayalayas across rural India– all the while deferring reforms mostly to 2006. Maybe !

The year had begun with a call in the presence of a senior Supreme Court judge to curtail lawyers’ fees and sieve out those who do not conform to the expectations of a noble calling.
About same time, President A P J Abdul Kalam was questioning a bid to transfer a high court chief justice whose concern over judicious conduct had 25 brother judges attempting a ‘strike.’
And Law and Justice Minister Hans Raj Bhardwaj was announcing moves to strengthen the Judge’s Inquiry Act and a Bill to appoint a Lokpal to ensure accountability in executive, legislature and judiciary– the three key branches of governance.
Those events marked the very first week of 2005.
If such straws in the wind– and a new left-backed United Progressive Alliance at helm– produced hopes of real reforms in delivery of justice and rule of law blowing in soon– the wait did not end with the year.
The Right To Information Act, 2005 which came into force on October 12– cited by Prime Minister Manmohan Singh among key achievements– is seen by experts as a valuable tool to expose corruption.
Legal redress or remedy which include compensating victims and punishing culprits is another matter.
Media ‘stings’ which showed some Members of Parliament virtually vending the privilege of raising questions in the House or spending on development were a rude reminder that accountability was not really round the corner.
Their expulsions notwithstanding, the ‘exposed’ MPs are knocking on the doors of courts for justice.
It refreshes memories of one of the most controversial Supreme Court judgements that the Indian Constitution gives MPs taking bribes an immunity from prosecution ”if they have actually spoken or voted in the House pursuant to the bribe taken by them.”
That judgement allowed the acquittal of four Jharkhand Mukti Morcha MPs who had voted for the Narasimha Rao Government 12 years ago in return for bribes.
Then Law Commission Chairman B P Jeevan Reddy suggested making bribe-taking legislators liable for prosecution.
”Nothing… should bar the prosecution of a Member of Parliament under the Prevention of Corruption Act… if they take money for voting in Parliament.”
Asked about it eleven years later at a news conference in January 2005, the Law Minister acknowledged that steps were yet to be taken to preclude such interpretation– as, indeed, they yet are.
Lokpal to check corruption in public offices itself was conceived four decades ago but is still nowhere in sight. Tired of waiting, activists have announced a People’s Lokpal.
Efforts on Lokpal or to strengthen the law to discipline errant senior judges remain under way.
By proclaiming 2005 as the Year of Excellence in Judiciary and pronouncing the institution ‘clean’– close on the heels of allegedly scandalous behaviour involving some senior judges– then Chief Justice of India Ramesh Chandra Lahoti helped underscore accountability as well as transparency.
Bhardwaj insists that any disciplinary action against senior judges be taken only by their peers and to that end the Judges’ Inquiry Act 1968 needs strengthening.
The Act provides to impeach an errant judge– a step rendered ineffective due to partisan politics the only time it was invoked against Supreme Court Judge V Ramaswamy who had been dubbed ”guilty of wilful and gross misuses of office…”
Authorities have no other way to effectively discipline senior Judges. An in-house mechanism has been adopted in absence of any legislative provisions. But experts say such a mechanism suffers from opacity and uncertainty.
Three years ago, within hours of taking office as CJI, Justice Gopal Ballav Pattanaik stressed in a television interview more powers to tackle corruption in judiciary.
Just a week before, his predecessor, Justice Bhupinder Nath Kirpal had called for ”robust safeguards” to minimise fears of corruption and incompetence in a judiciary appointing itself.
He said, ”the members of the judiciary are also Indian citizens who come from the same aggregate as those in the legislature and the administration, and therefore, there are also instances where corruption and incompetence have also pervaded the judicial establishment that cannot be denied.”
In December 2001, then CJI, Justice Sam Piroj Bharucha told a lawyers’ group in Kerala that ”more than 80 per cent of the Judges in this country, across the board, are honest and incorruptible.
”It is that smaller percentage that brings the entire judiciary into disrepute. To make it known that the judiciary does not tolerate corruption in its ranks, it is requisite that corrupt Judges should be investigated and dismissed from service.”
In December 1989, on the eve of retiring as CJI, Justice E S Venkataramaiah told an interviewer that ”judiciary in India has deteriorated in standards because some of the judges are willing to be influenced by lavish parties and whisky bottles.”
However, concern and disquiet voiced over the years has yet to produce a remedy.
The Law Minister suggests ‘formalising’ the in-house mechanism– leaving the task of ensuring accountability still with judges but making clear provisions for punitive measures such as suspension or resignation of errant judges.
With that in mind, India’s Central and State Law Ministers met at Simla in June 2005 and decided to set up a National Judicial Council to ensure judicial accountability.
Such measures may not find favour with some judges.
On the other hand, legislators and the executive– not to mention the judiciary– owe the citizens a transparent and accountable system of justice.
In a broader context, accountability was emphasised by Justice Yogesh Kumar Sabharwal seven months before he became the 36th CJI.
Speaking at the launch of a legal literacy mission by Prime Minister Singh, Justice Sabharwal said, ”We need to set examples of accountability in our governance.”
Three months ago, the Law Commission received a reference on the Judges’ Inquiry Act. This month, the Commission submitted to the Law Minister ”a comprehensive study” on ”the procedure for removal of the judges of the Supreme Court and High Courts.”
As it is, on one hand, judges cannot be disciplined unless their peers so choose– on the other they cannot be criticised without risking six months in jail under the court’s contempt power.
A long-awaited reform has been to allow truth as a defence against the contempt power which ends up silencing, at least discouraging, even fair, healthy and well-meaning criticism.
Last February, a Bill to ”further liberalise the scope to permit a defence of justification by truth on satisfaction as to bona fides of the plea and it being in public interest” was introduced in the Lok Sabha.
Just two days before the year ended did the Manmohan Singh Cabinet approve a ”proposal to proceed further in Parliament (on) the Contempt of Courts (Amendment) Bill 2004.”
An even more basic issue is judges’ strength. Not only it is known to be lower in India than elsewhere, it is further undermined by many vacancies and possible quality issues. Delayed judicial appointments contribute to delayed justice, even though authorities know years before vacancies arise and can set up a pool from which judges are assigned without delay.
So far as making lawyers accountable to litigants is concerned, the Advocate’s Act remains where it was.
Apart from complaints of incompetence, inefficiency and indifference, ethical issues are a major concern in the legal profession.
Lawyers who should look out for clients’ interests, are at times known to mislead them– treating cases as milch cows prolonged through adjournments for years– or even colluding with clients’ opponents.
Victims can complain to statutory Bar Councils. But the Councils are not always prompt in responding, nor can they help litigants recover any losses caused due to members’ misconduct.
One practical remedy might be for courts to keep for litigants’ reference a lawyers’ roster along with any record of complaints of misconduct against each– whether resolved or pending.
As it is, the authorities have not even dusted Law Commission findings since protesting lawyers clashed with police on Parliament Street a few years ago.
Here is an undergraduate textbook extract on the reality of Equality Before Law in actual practice during the erstwhile British rule:
”The principle of equality before law was violated when laws became complicated and beyond the grasp of uneducated poor masses.
They had to engage lawyers who charged excessive fees and preferred to work for the rich. In addition, the prevalence of corruption in the administrative machinery and the police worked against the rights of the masses.”
More than 57 years after the British quit India, the call to simplify the language of laws of the land was given by Prime Minister Singh at the launch of the country’s first nationwide legal literacy mission in March 2005.
”The complex legal language of our statutes acts as a hurdle to legal literacy… compounded by the intricacies of legal language in judicial pronouncements,” Dr Singh told law professionals.
”An attempt should be made to simplify the language of the law so that any one who reads judgements and laws can easily understand their true meaning.”
In November, the cold-blooded killing of Indian Oil Corporation officer Manjunath Shanmugam, who blew the whistle on corrupt petrol outlets, underscored once again the crying need in India for law to protect whistleblowers– insiders who expose corrupt or abusive organisations or employers.
Such laws have existed in and served other advanced societies for decades.
In India, a study was made by the Law Commission and a Draft Bill put together and placed in Parliament more than three years ago.
It was before the MPs when National Highway Authority officer Satyendra Dubey lost his life in November 2003, not to mention when Shanmugam lost his– two years later.
As it is, critics say, officials who appear to find protection in Indian jurisprudence are the sort who acquiesce in or connive at violations.
In case after case– whether petrol pump distribution scam, St Kitts affair, Hawala scam, Bofors scandal or many more– bureaucrat after bureaucrat and politician after politician has found acquittal or escape.
It is dramatically exemplified in manifestations of justice that hit consumers of New Delhi’s municipal and housing services this winter.
Law abiding citizens hailed the drive ordered by the Delhi High Court, urging impartiality and wondering whether– and why– law spared pre-2000 violations or officials on whose watch violations took shape.
Published accounts say three-fourths– perhaps more– of the Capital’s 36,00,000 buildings are illegal. Yet municipal authorities have taken note of only 200,000 of them and acted against barely a thousand.
The ongoing drive targets a mere 18,299 cases detected since 2000.
The court also has ordered the city to ”fix responsibility” and initiate major penalty against engineers and officials ”who allowed or took no notice” of such constructions.
If punitive action has been taken, it has not been made public.
Critics say city bulldozers have been ‘discrete,’ steering wide clear of homes of India’s bigwigs or affluent– entire unauthorised neighbourhoods or localities !
Critics advocate punishing officials who let violations occur and such agencies as the Delhi Development Authority whose policies or actions– why lottery ? for instance– have encouraged and stoked speculation in housing.
They say it all reflects the state of rule of law in India.
Here are some more reflections of it:
— Hundreds of thousands of undertrials have been in custody– many for years, even longer than their convictions might have required them to spend in jail. Why legal attention remains denied is not clear given huge sums spent year after year on legal aid for needy. Former Law Minister Jana Krishnamurthi saw it as a serious flaw that must not be allowed.
— An Indian Society of International Law inaugurated in August 1959 by India’s first Prime Minister Jawaharlal Nehru might have been a guiding force, helping inform and shape public opinion on global law. In 2005, it was sued by its Treasurer over violations of domestic norms.
— The Bar Council of India disclosed two years ago that 131 high court judges– one in four– across India have kin practising in the same court– an arrangement or coincidence forbidden under the law for fear of promoting unfairness in justice. The Council campaigned for transfer of 131 HC judges– in vain.
— But 2005 saw a High Court Chief Justice transferred twice in seven months, each time reportedly on brother judges’ complaints. In February, Justice B K Roy was transferred to Gauhati HC after he had asked some Punjab and Haryana HC judges why they took complimentary membership of an exclusive club, and in September, to the Sikkim HC, after he tried to improve access to justice in the Northeast by assigning Judges to benches in states neighbouring Assam.
— Despite scam after sordid scam sapping public interest, legislators have neither enacted Lokpal nor discarded it as a bad idea unfit for Indian society in the 40 years since it was recommended by the Administrative Reforms Commission set up under Morarji Desai in 1966.
— In November 1996, the Supreme Court found that former Petroleum Minister Satish Sharma favoured 15 petrol pump allottees and fined him Rs 50,00,000. Another Bench overruled this in August 1999. Two years later, an expert group led by Justice Reddy reviewed both orders and said it was ”absolutely essential” and ”urgent” to enact a law making public servants liable– with exemplary damages– for loss caused to the State by their mala fide actions. Last April, the Central Bureau of Investigation explained its failure to file chargesheet in the 15 cases citing a government decision ”not to grant sanction” to prosecute Sharma.
— In 30 years, the Lalit Narain Mishra murder case has been transferred to nine judges, and of seven accused, the statement of only two recorded. A Parliamentary report dubs it ”a classic case” which ”epitomises the lethargic pace at which the Indian legal system operates.”
”We must realise,” Justice Sabharwal said in his Law Day speech in November ”that the end of law must be justice. Law and justice cannot afford to remain distant neighbours. There must be harmony between law and justice.
”We must, in all seriousness, ask ourselves… how far we have been able to fulfil the mission of law to deliver justice and to what extent we have succeeded in using law as a vehicle for ensuring social justice to the large masses of people in the country.”
Experts concede that not just justice, legislation– the process of enacting laws of the land– also suffers from delays.
They say the terribly slow pace of legislating reforms is as constricting and agonising to the society as delay in adjudication is to an individual victim.
In India, the process also suffers from near absence of public participation in so-called public debate– often confined to hearing select speakers in one forum or another with hardly any audience input.
Those are just some of the serious questions that need to be faced. ”It is also perhaps a most ignored aspect of public interest issues by Indian research and scholarship,” a Delhi University Law teacher acknowledges.
Experts concede what is needed is a thorough but quick audit or study of legislative function– to see how it can be made effective in dealing with the needs of transparency, accountability and law in the society.
UNI MJ PK GC1148