Saturday, 1 October 2016

Lokpal Update - 1st October 2016

The Orissa High Court has admitted the writ filed by Dr. Manoj Fogla and Mr. Jagadananda and issued a four weeks’ notice to the Central Government to respond.

Shri. Anand Sharma has been appointed Chairperson of The Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice.

The Court’s Notice

The Orissa High Court has issued notices to the Ministries of Law and Justice, Home, Personnel, Public Grievance and Pensions after a writ petition was filed seeking declaration of Section 14(1)(h) of Lokpal and Lokayuktas Act, 2013 as ultra vires to the provisions of the Constitution of India.

A division bench of the High Court comprising Chief Justice Vineet Saran and Justice B R Sarangi has asked the Ministries to submit their responses within four weeks.

Quoting the provision of Section 14 (1) (h) of Lokpal and Lokayuktas Act, 2013, the petitioners urged the High Court that Clause (h) of Section 14(1) of the Act declares as ‘public servant’ the director, manager, secretary or other officers of every other society or association of persons or trust who receive donations in excess of `10 lakh from foreign sources by being registered under the FCRA Act, 2010.

The writ appears to have challenged the constitutional validity of only Section 14(1)(h) and not Section 14(1)(g) under which: “Any person who is or has been a Director, Manager, Secretary or other Officer of every other Society or Association of Persons or Trust (whether registered under any law for the time being in force or not), by whatever name called, wholly or partly financed by the Government and the annual income of which exceeds Rs. 1 Crore”

It would be interesting to see the government’s response to the court’s notice.

The Lokpal and Lokayukta (Amendment) Act, 2016

The Lokpal and Lokayukta (Amendment) Act, 2016 has already substantially diluted the draconian provisions of Section 44, including doing away with the requirement to declare the assets of spouse and dependent children and publishing statements filed by “public servants” (trustees and officers of NGOs and charitable institutions) on the Ministry’s website.

It also provided interim relief, doing away with the requirement to declare personal assets and liabilities by 31st July 2016 and extended the date to 31st December 2016.

However, since Section 14 of the Act has not been amended, trustees and officers of NGOs and charitable institutions which receive more than Rs. 1 Crore from the Central Government or donations in excess of Rs. 10 Lakhs from ‘foreign source’ under FCRA continue to be deemed ‘public servants’.

The Standing Committee

The Memorandum regarding “delegated legislation in the Amendment Bill” of 2016 states:

Clause 3 of the Bill seeks to substitute clause (k) of sub-section (2) of section 59 of the Lokpal and Lokayuktas Act, 2013, so as to empower the Central Government to make rules for the purpose of prescribing the form and manner in which declaration of assets and liabilities is to be made by public servant under section 44.The proviso to the said clause (k) empowers the Central Government to make rules with retrospective effect.
2. The matters in respect of which rules may be made under the proposed amendments are matters of procedure and administrative details and it is not practicable to provide for them in the Bill itself. The delegation of legislative power is, therefore, of a normal character.”

Thus, the form and manner in which assets and liabilities require to be declared and by whom will be reviewed and re-framed.

These changes are to be referred to the Parliamentary Standing Committee. 

After over two months the government has finally appointed Shri Anand Sharma as Chairman of the Parliamentary Standing Committee, Personnel, Public Grievances, Law and Justice.

Centre for Advancement of Philanthropy will be forwarding a memorandum to Shri Anand Sharma early next week.

In the interim there is a strong possibility that the date for compliance under this Act may be further extended or the government may completely do away with the provisions of Section 14(1)(f), 14(1)(g) and 14(1)(h).

Noshir H. Dadrawala
Chief Executive
Centre for Advancement of Philanthropy

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