Central Information Commission
Ram Gopal Dixit vs Ministry Of Statistics & Programme ... on 16 September, 2018
CENTRAL INFORMATION COMMISSION
(Room No.313, CIC Bhawan, Baba Gangnath Marg, Munirka, New Delhi-110067)
Before Prof. M. SridharAcharyulu (Madabhushi Sridhar), CIC
CIC/MOSPI/A/2017/195498
Ram Gopal Dixit v. PIO, M/o Statistics and Programme
Implementation
Order Sheet: RTI filed on 28.09.2016, CPIO replied on 21.10.2016, FAO - Nil, Second appeal filed
on 26.12.2016, Hearing on 15.03.2018;
Proceedings on 15.03.2018: Appellant and his representative Advocate Harish Kumar Sharma
present from NIC,Hathras, Public Authority represented by CPIO. Mr Rajeev Kumar and Mr. S.K.
Roy.
Date of Decision-16.09.2018: Directions issued.
INTERIM ORDER
FACTS:
1. Appellant Mr. Ram Gopal Dixit filed RTI application on 26.9.2016 seeking information/ certified copies of relevant documents from Ministry of Railways and MOSPI inter-alia on works recommended in Hathras Lok Sabha constituency represented by Shri Rajesh Diwakar, MP (LokSabha), details of Agencies through who the works were executed and payments were made, physical status/progress of works recommended in this Constituency area and MPLADS fund utilization and status of works recommended and executed in North Eastern Railway such as Road/Railway Station, etc. Mr. D Saibaba, CPIO of MoSPI replied on 21.10.2016 that the Members of Parliament send recommendations of works directly totheir respective Nodal District Authorities, they wouldgive fundsin instalments directly to their nodal district authorities. He should have transferred RTI request to the concerned District Authorities with a recommendation to provide information. The MoSPI should have learnt from this application to collect and disclose such information about the progress of MPLADS works to inform the people with whose money the MPs were using the discretion to recommend works. There was no decision by Appellate Authority, which is abdication of statutory duty. Railways Ministry PIO simply transferred RTI request to MoSPI without application of mind, and without checking whether they had part information. It was unnecessary transfer to avoid the CIC/MOSPI/A/2017/195498 Page 1 responsibility of providing information. Appellant was compelled to file second appeal.
2. The Railways Ministry should have given information from its NER wing on point number 3, whether the MP has recommended any such work in NER under MPLADS. Even 'no such work was recommended' could have been complete information. But, they did not care to check, and preferred to transfer RTI to concerned Directorate (without explaining what it was and where) who, claimed to have returned RTI application back to RTI cell stating there was no specific reference in the request to MR. This reply was dated 26.9.2016 but strangely refers to RTI dated 20-10-2016. The officer who signed this letter did not reveal his name. The signatory mentioned DD (PG) (APIO) Coord, (not explained). The applicant requested in Hindi, and Railway Ministry did not bother to write letter in Hindi, ignored specific request for Road Railway Station related work in NER as recommended by MP in Hathras, and wrongfully claimed that Director MR found no specific reference to MR. This letter dated 26.9.2016 reflects gross negligence and non-application of mind by the DD (PG) APIO (Coord), (The Commission was not informed who this officer is). It is so sad that they do not even know how to write a letter.
Contentions:
3. The appellant submitted that the information related to the Railway Department had not been furnished to him and his application with the LokSabha Secretariat was forwarded to the MPLADS Division, the response of CPIO was unjustified as the statistics related to MPLADS fund utilisation in every constituency was held by the Ministry and concerned district nodal authorities.He also contended that none in the constituency knew how the works would be rejected or recommended by MP. Information on some of the points of RTI request, such as what works he has selected or what requests for fund allocation was rejected etc are exclusively held by the MP himself, and MP alone knows why he left his quota unspent.
4. Mr Rajeev Kumar and Mr. S.K. Roy, representing MoSPI washed off their hands saying that though they received the progress report for overall distribution of MPLADS funds, category-wise utilisation into every welfare area was only maintained by the district authority and not by their Ministry. The CIC/MOSPI/A/2017/195498 Page 2 representatives of the MoSPI say that actual progress on the field could be ascertained from the local authorities like District Magistrate and his subordinates. Regarding how the works were chosen, the officers said that it was totally in the discretion of the concerned MP and no authority could intervene in it. They distribute people's money but they do not collect information for the people.
5. During the hearing the appellant pleaded that he wanted to know how the works were selected and progressed with details under MPLADs in Hathras, wherein he is a voter. The MoSPI, which releases the funds in instalments, Ministry of Railways and District Collector' office, who are supposed to have executed the recommendations of the MP and the MP himself, who has selected some works and sent recommendations for spending his quota of MPLADS money were holding the information sought in parts.
6. The Government of India has created a website india.gov.in for Indian Parliament, allocating a page for each parliamentarian, and https://www.india.gov.in/my-government/indian-parliament/rajesh-kumar- diwakar, is the link for the Honorable Member of Parliament, Mr.Rajesh Kumar since 2014, where MP generously gave even his personal details like date of birth, names of family members, address and email id etc. The same page should have contained details of the MPLADS works in his constituency.
7. In addition, National e-Governance Plan was envisaged by the present Government and being executed by the Ministry (MEITY)http://meity.gov.in/divisions/national-e-governance-plan, It claims:
e-Governance in India has steadily evolved from computerization of Government Departments to initiatives that encapsulate the finer points of Governance, such as citizen centricity, service orientation and transparency. .... Around this idea, a massive countrywide infrastructure reaching down to the remotest of villages is evolving, and large-scale digitization of records is taking place to enable easy, reliable access over the internet. The ultimate objective is to bring public services closer home to citizens, as articulated in the Vision Statement of NeGP- "Make all Government services accessible to the common man in his locality, through common service delivery outlets, and ensure efficiency, transparency, and reliability of such services at affordable costs to realise the basic needs of the common man"
CIC/MOSPI/A/2017/195498 Page 3
8. The Government, thus, has infrastructure with enough web space for transparency to accommodate MPLADS information. The Ruling BJP's official websitedeclared under the head of "core issues, good governance, BJP's take on good governance" at http://www.bjp.org/en/core-issues/good-governance:
The BJP's definition of good governance is administration where even the weakest and the most vulnerable sections of society have an equal stake in charting the country's growth. Everything starts and progresses from this single idea. Today, the BJP is the only true merit-based democratic political party in India. In governance, the BJP is committed to the ideals of transparency, efficiency and responsiveness. Time and again, the party has demonstrated its commitment towards these principles, wherever it has been voted to power....Our model of good governance ensures that even the tallest leaders and top bureaucrats are answerable to an ordinary citizen, hailing from any part of India. The government believes in operating in complete transparency, with every file and official record open for public scrutiny, except when these may endanger national security. ...For us, governance is a mission that isn't complete without proactive involvement of the citizens of India. We strive to provide a clean and efficient government that invites proactive participation and involvement of citizens at every step.
9. Similarly, main opposition, the Congress Party in its manifesto in 2014 declared at page 43:
The Indian National Congress gave the people of India the Right To Information (RTI). The RTI has been our most powerful weapon in the fight against corruption. Few governments have had the courage to enact legislation that rendered their processes more transparent and open to scrutiny. With the passage of the Right to Information Act, 2005 the Indian National Congress empowered the people with the biggest tool to fight corruption and ensure transparency of public service delivery systems. The recent landmark Whistleblowers Protection Act,2014 is another step in our efforts to create a society free of corruption. The Indian National Congress will give thehighest priority to ensuring accessibility andtransparency in governance systems. Source: https://www.inc.in/images/Pages/English%20Manifesto%20for%20Web.pdf CIC/MOSPI/A/2017/195498 Page 4
10. The Parliamentary Parties/Boards have a duty to fulfil these promises because they are financed by Government of India in proportion to their numbers in Loksabha. Following is strength of various political parties in LokSabha, since 2014:BharatiyaJanata Party (BJP)-282, Indian National Congress (INC)-44, All India Anna Dravida Munnetra Kazhagam (AIADMK)-37, All India Trinamool Congress (TMC)-34, Biju Janata Dal (BJD)-20, Shivsena (SS)-18, Telugu Desam (TDP)-16, Telangana Rashtra Samithi (TRS)-11, Yuvajana Sramika Rythu Congress Party (YSRCP)-9, Communist Party of India (Marxist) CPI(M)-9; Lok Jan Shakti Party-6, Nationalist Congress Party-6, Samajwadi Party-5;Parties with 4 MPs: RashtriyaJanata Dal, Aam Aadmi Party, ShiromaniAkali Dal, Parties with 3 members: All India United Democratic Front, Rashtriya LokSamta Party, Jammu & Kashmir Peoples Democratic Party. Two-Member Parties: Janata Dal (United), Apna Dal, Indian National Lok Dal Janata Dal (Secular), Jharkhand MuktiMorcha, Indian Union Muslim League; Single-member parties: All India N.R. Congress, Naga Peoples Front, Pattali Makkal Katchi, Sikkim Democratic Front, SwabhimaniPaksha, Communist Party of India, Kerala Congress (M), National Peoples Party, Revolutionary Socialist Party, All India Majlis-E-Ittehadul Muslimeen; There are 3 independents. The independents should also be made answerable. Every political party which has more than one seat in Parliament is expected to have Parliamentary Board/Party with all members elected, and each Parliamentary Party needs to make arrangements to inform the voters and RTI requestors. All those political parties having single member in Lok Sabha and independents should evolve their own mechanisms to do so regarding MPLADS.
Rs 12K crore not spent
11. The MoSIP in its recent report (August 2018) revealed that Rs 12,000 crore of MPLADs was unspent. This agenda paper of the meeting to review the MPLADS shows that in February 2018, funds allotted but unspent stood at Rs 4,773.13 crore while 2,920 instalments of Rs 2.5 crore were yet to be released, resulting in a total backlog of Rs 12,073.13 crore. Drinking water, sanitation, electricity, roads, community shelters-these are the kind of things MPs can spend their annual Rs-5-crore fund on. They can also spend for orphan homes, differently-abled persons, or build a class room in primary school in their constituencies. Probing the question why they are not spending this amount, CIC/MOSPI/A/2017/195498 Page 5 Pronab Sen, the former chief statistician of India, said the MPs have to be more proactive in identifying the needs of the locals.The rules of the MPLAD scheme state that the work has to be completed within 18 months from the date of demitting office in the case of Rajya Sabha MPs or dissolution of the Lok Sabha, and subsequently accounts have to be closed. But the government report shows several accounts dating back to the 14th LokSabha are yet to be closed."Obtaining utilisation certificate for a project is at the centre of using MPLADS. The UC gets stuck as most constituencies comprise more than one district and it gets caught between the different district collectors" said Nishikant Dubey, a Bharatiya Janata Party LokSabha MP. (A daily newspaper report on 30.8.2018, https://www.hindustantimes.com/india-news/rs-12-000-crore-of-mp-funds-lie-unutilised-uttar-
pradesh-tops-list/story-qNsS9AZ941qeWUGm5fdqjK.html) These problems can be fixed by making every process of the works transparency. It is reported that a year after they took office, 298 of 542 members of the 16th (present) LokSabha have not spent a rupee from Rs 5 crore. Following MPs have not used any funds> No. Of MPs Who Haven't Used Any Funds States No of MPs Andhra Pradesh 10 Arunachal Pradesh 1 Assam 13 Bihar 25 Goa 0 Gujarat 16 Haryana 5 Himachal Pradesh 0 Jammu & Kashmir 5 Karnataka 20 Kerala 2 Madhya Pradesh 17 Maharashtra 30 Manipur 0 Meghalaya 1 Mizoram 0 Nagaland 0 Odisha 14 Punjab 4 Rajasthan 20 Sikkim 0 Tamil Nadu 11 Tripura 1 Uttar Pradesh 52 West Bengal 13 A & N Islands 1 Chandigarh 1 D & N Haveli 1 Daman & Diu 1 Delhi 2 Lakshadweep 1 Puducherry 0 CIC/MOSPI/A/2017/195498 Page 6 No. Of MPs Who Haven't Used Any Funds States No of MPs Chhattisgarh 5 Uttarakhand 4 Jharkhand 12 Telangana 10 Total 298 Source: MPLADS
12. Since the constitution of the 16th Lok Sabha in May 2014, the government has released Rs 1,757 crore for MPLADs, of which Rs 281 crore has been utilised by 543 MPs. This means only 16% of the money has been spent. As on May 15, 2015, it was reported that Rs 1,487 crore was unspent, though deposited with various district authorities. The data shows that not a single rupee was spent in 278 constituencies (51 per cent) in 2014-15. Of these, 223 MPs did not recommend any amount. Considering that MPs have a recommendatory role in the scheme, it is surprising to see that 41 per cent of them haven't even recommended any amount for their constituency. In the remaining 55 constituencies, the MP recommended works, but no money was spent by the district authority. In all, the average amount of recommendations made was worth Rs. 2.16 crore, while the average expenditure incurred was mere Rs. 57 lakh.
Status of MPLADS Funds For LokSabha
Cumulative
Funds Amount
Released By % of % of Unspent
available Amount Expenditure
Govt. Sanctioned Utilisation Balance
State/UTs with Sanctioned Incurred (Rs
Over Over (Rs
interest (Rs crore) crore)
Released Released crore)
Since 1993 (Rs crore)
(Rs crore)
Andhra
82.5 82.5 37.8 45.8 11.4 13.9 71.1
Pradesh
Arunachal
7.5 7.6 2.5 32.8 1.9 25.3 5.7
Pradesh
Assam 37.5 37.5 3.6 9.6 1.5 4.1 36.0
Bihar 125.0 128.1 43.7 35.0 19.7 15.7 108.5
Goa 5.0 5.1 2.9 57.8 0.5 9.4 4.7
Gujarat 77.5 77.6 25.7 33.1 10.3 13.3 67.3
Haryana 27.5 27.7 8.0 29.0 3.7 13.6 24.0
Himachal
20.0 21.1 8.6 42.8 2.8 14.0 18.3
Pradesh
Jammu &
15.0 15.0 3.3 21.8 2.0 13.5 13.0
Kashmir
Karnataka 80.0 80.5 23.7 29.6 13.1 16.4 67.3
Kerala 70.0 70.1 59.4 84.8 9.3 13.3 60.7
Madhya
97.5 98.4 25.3 25.9 17.3 17.7 81.1
Pradesh
Maharashtra 140.0 140.3 69.9 49.9 18.0 12.9 122.3
Manipur 10.0 10.0 6.6 66.0 5.4 53.7 4.6
Meghalaya 7.5 7.5 3.0 39.6 2.4 31.5 5.1
Mizoram 5.0 5.0 2.3 45.0 2.1 42.6 2.9
Nagaland 5.0 5.0 2.5 50.0 2.3 46.0 2.7
Odisha 65.0 65.2 17.1 26.3 4.7 7.2 60.5
Punjab 52.5 55.3 21.0 40.0 11.7 22.2 43.6
Rajasthan 70.0 70.0 12.3 17.5 6.0 8.5 64.0
CIC/MOSPI/A/2017/195498 Page 7
Status of MPLADS Funds For LokSabha
Cumulative
Funds Amount
Released By % of % of Unspent
available Amount Expenditure
Govt. Sanctioned Utilisation Balance
State/UTs with Sanctioned Incurred (Rs
Over Over (Rs
interest (Rs crore) crore)
Released Released crore)
Since 1993 (Rs crore)
(Rs crore)
Sikkim 5.0 5.0 2.6 52.0 0.1 1.0 5.0
Tamil Nadu 142.5 142.9 122.7 86.1 46.2 32.4 96.7
Tripura 7.5 7.5 2.5 33.3 1.6 20.9 6.0
Uttar Pradesh 252.5 252.8 60.8 24.1 28.3 11.2 224.5
West Bengal 172.5 173.2 98.5 57.1 36.4 21.1 136.8
A & N Islands 2.5 2.5 0.0 0.0 0.0 0.0 2.5
Chandigarh 2.5 2.5 0.0 0.0 0.0 0.0 2.5
D & N Haveli 2.5 2.5 0.0 0.0 0.0 0.0 2.5
Daman & Diu 2.5 2.5 0.0 0.0 0.0 0.0 2.5
Delhi 20.0 20.2 3.6 18.1 2.7 13.5 17.5
Lakshadweep 2.5 2.5 0.0 0.0 0.0 0.0 2.5
Puducherry 5.0 5.0 4.5 89.8 0.3 5.2 4.8
Chhattisgarh 32.5 32.6 9.6 29.7 7.4 22.7 25.2
Uttarakhand 15.0 15.1 2.3 15.6 1.4 9.0 13.7
Jharkhand 37.5 37.5 4.7 12.4 3.2 8.5 34.4
Telangana 55.0 55.0 25.7 46.7 8.0 14.6 47.0
Source: MPLADS
Amount
Released available % of Unspent
Amount Amount Expenditure
MP, Party & by Govt. with Utilisation Balance
Recommended Sanctioned Incurred (Rs
Constituency (Rs interest Over (Rs
(Rs crore) (Rs crore) crore)
crore) (Rs Released crore)
crore)
Dharambir (BJP),
Bhiwani-
2.5 2.7 3 2.9 2.5 98.7 0.2
Mahendragarh in
Haryana
Kamalbhan Singh
Marabi (BJP),
2.5 2.5 3.3 2.6 2.4 94.9 0.1
Sarguja (ST) in
Chattisgarh
Senguttuvan B.
(AIADMK), Vellore in 2.5 2.5 4.9 4.9 2.5 98.1 0.1
Tamil Nadu
Arunmozhithevan A.
(AIADMK), Cuddalore 2.5 2.5 5.8 5.1 2.2 88.5 0.3
in Tamil Nadu
Sandhya Roy (AITC),
Medinipur in West 5 5 5.7 5.7 4.4 88 0.6
Bengal
Gopalakrishnan C.
(AIADMK), Nilgiris 2.5 2.5 5.1 5 2.1 84.5 0.4
(SC) in Tamil Nadu
MuzaffarHussainBaig
(PDP), Baramullah in 2.5 2.5 3.3 3.3 2 80.8 0.5
J&K
Hari G. (AIADMK),
Arakkonam in Tamil 2.5 2.5 4.9 3.8 1.9 76 0.6
Nadu
AsaduddinOwaisi
(AIMIM), Hyderabad 5 5 6.5 4.9 3.8 75.5 1.2
in Telangana
Om Prakash Yadav
5 7 7.4 7.4 3.5 70 3.5
(BJP), Siwan in Bihar
Source: MPLADS
Probity and Transparency
13. The Minister of Statistics and Programme Implementation asked district authorities to be "more sensitive" and "ensure expeditious implementation" with CIC/MOSPI/A/2017/195498 Page 8 "probity and transparency" so that results were visible. Referring to members of 15th Lok Sabha utilising 90% of their MPLADS funds during their five-year term between 2009 to 2014, the Minister said that it is not very satisfactory for a scheme which has been in operation for more than two decades. It was concluded that 55 per cent of Lok Sabha MPs of 16th Lok Sabha have spent nothing on constituencies, in their first year. As many as 298 of 542 Lok Sabha members have not spent a single rupee of the annual Rs 5 crore given for constituency development (Media Report on 16.5.2015, https://www.business- standard.com/article/specials/55-per-cent-of-lok-sabha-mps-spent-nothing-on- constituencies-115052600134_1.html)
14. While Tamil Nadu and West Bengal are the best performing States with average recommendations worth Rs. 3.5 crore, spent more than Rs. 1 crore per constituency on projects, Jharkhand, Uttarakhand, Jammu & Kashmir, Rajasthan and Assam, on average, didn't even cross the Rs. 1 crore-mark for project recommendations, let aside the execution.(https://www.thehindu.com/ data/how-do-mps-spend-their-funds/article10864371.ece, June 5, 2015). Some MPs say the scheme is a godsend because it enables them to 'give' something tangible to their constituents.
15. A look at latest statistics reveals the truth. The details of the works (names, location, beneficiaries, payments etc) in each constituency and as per the MP are not available. Out of total fund entitlement of Rs 2725 crore (Lok Sabha) only Rs 1412.5 crore was released by Government and out of Rs 1225 Crore (Rajya Sabha) only Rs 594 crore was released. The statistical details are given by official MPADS website:
SUMMARY OF FUNDS RELEASED UNDER MPLADS FOR 2017-2018 Sl. STATE/UT LOK SABHA RAJYA SABHA No. No. of No. of No. of Total Total Total fund No. of No. of No. of Total Total Total fund instalm 1st 2nd No. of fund released by Govt. instalments 1st 2nd No. of fund released by ents instal instal instalm entitled of India(Rs. Crore) entitled by instal instal instalm entitl Govt. of entitled ment ment ents by the the state ment ment ents ed India(Rs. Crore) by the releas releas release State/U releas releas release by state ed by ed by d by T(Rs. ed by ed by d by the Govt Govt Govt of Crore) Govt Govt Govt of State of of India of of India /UT( India India India India Rs.
Cror
e)
1 Nominated 4 2 1 3 10 7.5 24 3 2 5 60 12.5
2 Andhra 50 10 3 13 125 32.5 22 6 3 9 55 22.5
CIC/MOSPI/A/2017/195498 Page 9
Pradesh
3 Arunachal 4 2 2 4 10 10 2 1 1 2 5 5
Pradesh
4 Assam 28 10 5 15 70 37.5 14 5 4 9 35 22.5
5 Bihar 80 23 15 38 200 95 32 6 4 10 80 25
6 Goa 4 0 0 0 10 0 2 0 1 1 5 2.5
7 Gujarat 52 20 13 33 130 82.5 22 6 7 13 55 32.5
8 Haryana 20 10 6 16 50 40 10 3 1 4 25 10
9 Himachal 8 4 4 8 20 20 6 3 2 5 15 12.5
Pradesh
10 Jammu & 12 3 1 4 30 10 8 4 2 6 20 15
Kashmir
11 Karnataka 56 16 3 19 140 47.5 24 8 4 12 60 30
12 Kerala 40 10 3 13 100 32.5 18 0 0 0 45 0
13 Madhya 58 26 21 47 145 117.5 22 10 9 19 55 47.5
Pradesh
14 Maharashtr 96 25 5 30 240 75 38 6 1 7 95 17.5
a
15 Manipur 4 2 2 4 10 10 2 1 1 2 5 5
16 Meghalaya 4 2 2 4 10 10 2 1 1 2 5 5
17 Mizoram 2 1 1 2 5 5 2 1 1 2 5 5
18 Nagaland 2 1 1 2 5 5 2 1 1 2 5 5
19 Odisha 42 16 8 24 105 60 20 10 4 14 50 35
20 Punjab 26 13 9 22 65 55 14 7 1 8 35 20
21 Rajasthan 50 15 8 23 125 57.5 20 9 4 13 50 32.5
22 Sikkim 2 1 0 1 5 2.5 2 1 1 2 5 5
23 Tamil Nadu 78 34 21 55 195 137.5 36 13 7 20 90 50
24 Tripura 4 1 1 2 10 5 2 1 1 2 5 5
25 Uttar 160 57 32 89 400 222.5 62 21 12 33 155 82.5
Pradesh
26 West 84 32 22 54 210 135 32 7 8 15 80 37.5
Bengal
27 A & N 2 1 0 1 5 2.5 0 0 0 0 0 0
Islands
28 Chandigarh 2 1 0 1 5 2.5 0 0 0 0 0 0
29 D & N 2 0 0 0 5 0 0 0 0 0 0 0
Haveli
30 Daman & 2 0 0 0 5 0 0 0 0 0 0 0
Diu
31 Delhi 14 0 0 0 35 0 6 0 0 0 15 0
32 Lakshadee 2 1 0 1 5 2.5 0 0 0 0 0 0
p
33 Puducherry 2 0 0 0 5 0 2 0 0 0 5 0
34 Chhattisgar 22 10 9 19 55 47.5 10 5 4 9 25 22.5
h
35 Uttaranchal 10 2 1 3 25 7.5 6 2 1 3 15 7.5
36 Jharkhand 28 6 3 9 70 22.5 12 2 2 4 30 10
37 Telangana 34 5 1 6 85 15 14 4 1 5 35 12.5
TOTAL: 1090 362 203 565 2725 1412.5 490 147 91 238 1225 594
16. These 'figures' do not reveal the actual details of works. Ground realities are hidden behind lifeless statistics. None can understand what works were taken up and what assets were created. Such a deliberate ambiguity is a kind of malicious denial of information.
CIC/MOSPI/A/2017/195498 Page 10 Four MPs suspended in MPLADS
17. A TV channel during December 2005, a sting operation (called Operation Chakravyuh) by an organization called, Star News Detective Intelligence Guild exposed four MPs involved in corruption in allotting work for the MPLADS. Media organization alleged that MPs belonged to Congress, BJP, Samajvadi Party and another supported by it were caught on camera negotiating bribes and commissions for recommending works.
(https://www.outlookindia.com/newswire/story/sting-operation-exposes-mps-in- mplad-project-selection/342971) In March 2006, a seven member Parliamentary Committee headed by Shri V Kishore Chandra S Deo recommended suspension of four members for improper conduct. Though Committee felt the need to handed out appropriate punishment, they need not be expelled from House as actual bribing was not shown. The Committee recommended that the government suitably revise guidelines governing MPLADs, with a view to plugging various loopholes and lacunae. It also asked the government to initiate steps for laying guidelines and norms for sting operators. The Committee suggested that non-governmental organisations and private institutions be barred from getting any funds under MPLADS as most of such NGOs are 'merely facades for unscrupulous organisations formed to usurp funds' from MPLADS, which are meant for community development works.
(http://www.rediff.com/news/report/sting/20060314.htm PTI report dated March 14, 2006) "The report of the Committee raises a few pertinent issues. To begin with, there is a divergence between the punishment recommended for the Lok Sabha MPs and that for the two Rajya Sabha MPs, who were also exposed in the MPLADS sting.
18. The Rajya Sabha Ethics Committee that probed the charges against them had recommended the expulsion of one MP and given the benefit of doubt to the other. ... The Lok Sabha Committee has recommended that the Government revise the guidelines governing MPLADS under which MPs may recommend "works" for "public use" up to Rs.2 crore per annum with a view to plugging loopholes. In this connection, it has suggested that NGOs and private institutions be barred from receiving any funds under the scheme. The submission misses the central point about MPLADS. The scheme has not been subverted by "unscrupulous" private organisations or suffered because of the existence of some legal lacunae. It has failed because it is inherently wasteful (having consumed more than Rs.14,000 crore cumulatively since its inception in 1993);
CIC/MOSPI/A/2017/195498 Page 11 because it "treads into areas of local government institutions" (as the National Commission to Review the Working of the Constitution has pointed out); and because it is tailor-made for misuse by those who occupy the legislative bodies in the country. The fact that MPLADS has been a study in abuse was clearly highlighted by two reports of the Comptroller and Auditor General, in 1998 and 2001, which strongly criticised the serious irregularities in the manner it was implemented. The sting operation, which revealed the ugly face of corruption, should have acted as a catalyst for giving the scheme a quick and unsung burial. Instead, the Lok Sabha Committee has suggested a mere tinkering of MPLADS and focussed its attention on issues unconnected with its agenda such as asking the Centre to lay down guidelines and norms for those who conduct sting operations. https://www.thehindu.com/todays-paper/tp-opinion/better-abandoned-than- revised/article3164851.ece Lack of accountability & constitutionality
19. It was criticised that MP is a legislator and he should not also be made an executive, with duties of spending money, which violates the constitutional principles of separation of powers. The frauds in MPLADS were exposed to buttress this argument. The Common Cause, NGO and Jammu and Kashmir National Panthers Party challenged MPLADS scheme as unconstitutional in 1999 alleging that in the absence of any guidelines, the funds allocated under the scheme were prone to be misused by MPs, violative of Article 14 of the Constitution (Right to Equality) as it gave totally arbitrary powers to an MP without there being proper checks and balances, monitoring and accountability. NGO Lok Sevak Sangh had pointed out that the scheme gives an unfair advantage to serving MPs over their rival candidates in elections, the powers exercised by the MPs by virtue of MPLAD scheme results in discrimination between various sections of society in allocation of work. The scheme had come under judicial scrutiny after a sting operation referred above. The important contentions of the petitioners are as follows:
20. Origin of the Scheme: Launching the scheme on 23rd December, 1993, the then Prime Minister in Parliament, said that MPLADS was formulated for enabling the M.P.s to identify small works of capital nature based on locally felt needs in their constituencies. Initially, each M.P. could suggest works to the tune CIC/MOSPI/A/2017/195498 Page 12 of Rs. 5 lakhs. During 1994-95, it was raised to One Crore per year per MP, in the year 1998-99, the funds of the MPLADS were increased to Rs. 2 Crores per year for each M.P. Up to October 1994, and then raised to Rs 5 crore. The Scheme is governed by a set of guidelines, which were first issued by the Ministry of Rural Development in 1994, later it was transferred to MoSPI and guidelines were revised in 1994. The Guidelines were further revised in February, 1997, September, 1999, April, 2002 and November, 2005. Important Guidelines are:
• Each MP will give a choice of works to the concerned Head of the District, • The Head of the District shall identify the agency to execute it, • The work shall not be changed, except with MPs concurrence. • If such work cannot be executed, the District Authority shall inform the reasons within 45 days of the receipt of the proposal. • If the estimated amount is for a work is more than the amount indicated by the MP for the same, MP's further consent is necessary before the sanction is accorded. MP alone can cancel only when it was not started and does not cost any loss.
• The funds would be non-lapsable. Unutilized can be carried forward to the subsequent year.
• The District Authority will maintain accounts of MPLADS, MP wise, will furnish Utilisation Certificate every year to the State Government and the administrating Ministry. They will be audited by the Chartered Accountants or the Local Fund Auditors or any statutory auditors. The audit report should be prepared MP wise. (earlier to 2005, CAG used to audit the accounts of the Scheme.)
21. Since the introduction of MPLADS in 1993, CAG has given two Audit Reports. (1998 and 2001). CAG in its both the reports pointed out the innumerable irregularities and illegalities in MPLADS. As per the report of the Comptroller and Auditor General of India for the year ended March 2000, since the inception of the scheme in 1993 till 2000, Rs. 5017.80 crores has been released against which Rs. 3221.21 crores have been spent. During the period from 1997-1998 to 1999-2000, the Ministry of Statistics & Programme Implementation released Rs. 2688 crores (84.43%) of the allotted budget provision of Rs. 3160 crores. From the inception of the scheme till the end of March 2000, 35.80% of the total releases by the Ministry amounting to Rs. 1956.79 crores remained unspent with the District Collectors (DCs) and the CIC/MOSPI/A/2017/195498 Page 13 implementing agencies. Some of the other findings of the CAG report (2001) are:
• Even after seven years of the operation of the scheme the Ministry did not have a suitable accounting procedure. This was a contributory factor in its financial administration.
• The scheme guidelines contain contradictory provisions. One provision related to the release of instalments to the actual progress in expenditure and execution of works, while another provision related it to funds sanctioned by the District Collectors to the implementing agencies. The Ministry continued to sanction funds based on the amounts sanctioned by the District Collectors, regardless of actual utilisation. Consequently, there were large unspent balances with the implementing agencies. • The Ministry did not submit any Action Taken Notes to the CAG's Audit Report of 1998 on the scheme. Many irregularities pointed out not only persisted but actually worsened. Some of these were:
a) The implementing agencies did not submit the utilisation certificates to the District Collectors;
b) They did not refund unspent balance;
c) There was misreporting of the financial progress of works by them;
d) They irregularly clubbed the scheme funds with the other schemes;
e) Diverted funds to inadmissible purpose;
f) There were executions of inadmissible works;
g) The District Collectors sanctioned works for commercial and private organizations, for repairs and maintenance works and on places of religious worship;
h) There were unauthorized purchases of stores & stock items;
i) District Collectors sanctioned and executed the works without the recommendation of the MPs, without technical sanction and administrative approval;
j) The nodal agencies did not maintain any asset records.
k) There were cases of irregular award of contracts as also deficient execution of works. There were instances of excess expenditure, excess payment, overpayments to contractors, wasteful expenditure, miscellaneous irregularities in purchases, abandonment of works, execution of petty works, irregular payment of supervisions and cent age charges, frauds and misappropriation.
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l) The Ministry of Statistics and Programme Implementation, who administer the scheme and are responsible for its monitoring and evaluation, admitted that they were not in a position to effectively monitor the scheme at the operational level. In fact the Ministry did not have any picture of works under implementation and quoted the Committee of Secretaries decisions that central monitoring of large number of works was neither practicable nor desirable.
The CAG in its final comment says; "In consideration of the various persistent instances of poor administration of the scheme, involving wastages, idling of funds, irregular and inadmissible expenditure and frauds highlighted in this and the earlier 1998 Report of the CAG, the Central Government needs to re-evaluate the need, manner and modality of resource transfer under the scheme as at present."
22. Some of the instances of irregularities mentioned above are shown in terms of Rupees (as per the CAG report 2001) in tabular form (by conducting random audit of 241 constituencies out of 786):
No. Particulars Amount Rs. 1. Utilisation Certificates not obtained by DCs (Annex III of the CAG report) 161.74 cr
2. Non-refunding of the unspent balance by the Implementing Agencies (Annex IV of the CAG report) 1072.26 lakhs
3. Misreporting of Financial Progress by DCs 82.06 Cr (Annex V of the CAG Report 2000)
4. Irregularly clubbing MPLADS funds with other schemes 321.15 lakhs (Annex VI of the CAG Report 2000)
5. Irregular Diversion of Funds to inadmissible purpose 1832.90 lakhs (Annex VII of the CAG Report 2000)
6. Execution of Inadmissible Works(Annex VIII of the CAG Report 2000) 478.30 lakhs
7. Sanction of works for Commercial & Pvt. Organisations 916.13. lakhs (Annex IX of the CAG report 2000)
8. Irregular Sanction of Repair and Maintenance Works 2659.05 lakhs (Annex X of the CAG Report 2000)
9. Purchase of Stores out of the MPLADS fund 546.19 lakhs (Annex XI of the CAG Report 2000)
10. Irregular sanction of Works on Pvt. Land 185.32 lakhs (Annex XII of the CAG Report 2000)
11. Other inadmissible works (Annex XIII of the CAG report 2000) 460.19 lakhs
12. Irregular Sanction of Loans, Grants and Donations 81.45 lakhs (Annex XIV of the CAG Report 2000) CIC/MOSPI/A/2017/195498 Page 15
23. The CAG in its report concluded: "This review covering the period 1997- 2000, was in the nature of updation of the findings of the previous review of the Comptroller and Auditor General on the subject covering the period 1993-1997. The findings of the present review point out of the fact that the implementation of the scheme has become worse during the years 1997-2000 as evidenced by the low utilisation (64.2 per cent) of the released funds and a very poor record of completion of the works as revealed in test check according to which percentage of completed works came down from 56.13 (as per the 1998 report) to 39.22. In other words even the 64.2 per cent utilized expenditure has not yielded commensurate assets. Added to this are significant percentage of irregular and inadmissible works that were detected in test audit. If these are reckoned, the real utilisation figures will be much lower. Overall, the audit findings reveal failures: in operationalising the MPLADS; in meeting its stated objectives; in conforming to the prescription of the scheme by the MPs at the recommendation stage and by the District Officers at the execution stage; and, last but not the least, admitted failure of the Ministry to effectively administer and monitor the scheme. In summary, in the present form, the scheme, which is in operation since December 1993 has hardly served its main objectives. In view of these findings and the findings of the 1998 audit report, the Central Government needs to have a thorough review of the present arrangements for the implementation of the scheme. Such a review should cover the present manner of resource transfer along with the technical and administrative arrangements."
24. Report of Programme Evaluation Organization of the Planning Commission, November 2001: The Audit Report 1998 stressed the need for the evaluation on the working and the progress of implementation of the MPLADS. Need for evaluation of the working of the Scheme was reiterated by the Audit Report 2001. Accordingly, the Ministry of Statistics and Programme Implementation made arrangements with the Programme Evaluation Organization of the Planning Commission to undertake a study to evaluate the design, implementation and impact of the schemes and to identify the areas of weakness and strength for the improved performance of the scheme. The Evaluation Team launched the study in April 2000 and submitted its report in November 2001. Some of the finding of the said report as given in Era Sezhiyan's book published by Institute of Social Science titled, 'MPLADS CIC/MOSPI/A/2017/195498 Page 16 Concept, Confusion, Contradictions' are reproduced herein below: "Although the cost-estimates of a work recommended by the MP should have been worked out at the time of sanctioning of the work, the Evaluation Team found:
"Cost estimates are prepared afterwards and perhaps, made to conform to the amount allocated by the MP. Consequently many of the works are either completed by supplementing the fund allocated by the MP by fund procured from other sources or compromising the quality of assets created." (Para 3.9) "Both CAG and this evaluation team found financial mismanagement of the Scheme and consequent inflated reporting of amount spent. If these are taken into account the percentage utilization of the fund will be much lower than what is being officially reported." (Para 3.10) Apart from the non-maintenance of a satisfactory accounting system for the Scheme, there was no monitoring about the expenses actually incurred and the state of completion. In this regard, the Report observed:
"It seems that in a large number of cases once the work is recommended, sanctioned and fund released, nobody kept track of the progress. Such status not known works are largest in number among those classified under Drinking water and sanitation followed by Roads and bridges. The evaluation team during their field visits failed to locate quite a few of the assets claimed to have been created in these sectors. Such cases, largely a consequence of weak monitoring, perhaps encourage various types of irregularities to thrive." (Para 3.5) "The Evaluation Team found that there was a tendency on the part of several Rajya Sabha MPs to recommend works in a particular district in addition to those by the Lok Sabha MP(s) in the same District. This has caused a disproportionately large amount of money being invested in these districts out of MPLADS Fund alone....About the uneven distribution of works and their benefits, the Evaluation Report stated:
"A disproportionately large amount of money is flowing into these districts out of MPLADS funds leading to such an undesirable situation. The choices CIC/MOSPI/A/2017/195498 Page 17 of the areas of works have become very much distorted and unequally distributed. Apart from an uneven distribution of works across the districts, this increases the workload for the Collectors and the field officials leading to weak monitoring and supervision. Many of these districts are not among the less developed ones in the country/State."
25. NCRWC Report: The report of the National Commission to Review the Working of the Constitution (2002), which was headed by former Chief Justice M. N. Venkatachaliah, also recommended the discontinuance of the MPLAD scheme. The Commission was of the opinion that these schemes militate against the principle of demarcation of responsibilities between the legislative and the executive, as they involve the legislators in the exercise of executive powers. According to the Commission, "the MPLAD scheme is inconsistent with the spirit of federalism and distribution of powers between the union and sates. It also treads into the areas of local government institutions. The commission recommends immediate discontinuance of the MPLAD scheme as being inconsistent with the spirit of the constitution in many ways."
26. NAC recommendation: The National Advisory Council (NAC) set up by the government in 2005 also recommended the discontinuance of MPLADS. It said, "The MPLADS scheme is implemented through district collectors. Ideally, local area development needs should be determined and interventions made by the elected local governments. Therefore, MPLADS scheme should be dispensed with, and these funds should directly go to Panchayats and Municipalities for the same purposes."
New Guidelines worsen MPLADS
27. The Guidelines for MPLADS were revised in 2005 to take into account the suggestions made by Rajya Sabha and Lok Sabha Committees on MPLADS, observations of CAG, Programme Evaluation Organization of the Planning Commission and operational experience over the years. It is submitted that new guidelines, instead of plugging the loopholes, have worsen the Scheme. Mr. Era Sezhiyan had written another article on new guidelines, published in Mainstream dated 15th April, 2006. Mr Era Sezhian pointed out serious lapses:
CIC/MOSPI/A/2017/195498 Page 18 • No Auditing from CAG: "The foremost objectionable part of the New Guidelines is removal of the CAG Audit in respect of the Scheme funds... This suspicious attempt to remove the CAG Audit on the accounts of the Scheme is unconstitutional and cuts at the very base of accountability of the executive to Parliament. ...Sec. 13 of the Act provides that it shall be the "duty of the Comptroller and Auditor-General to audit all expenditure from the Consolidated Fund of India and of each State and of each Union territory."
• Art. 151 of the Constitution states: "(1) the reports of the Comptroller and Auditor-General of India relating to the accounts of the Union shall be submitted to the President, who shall cause them to be laid before each House of Parliament."
• Further, Guidelines 5.5 states that the Audit Report should be prepared MP-wise. This provides that the auditors appointed will audit the accounts maintained by District Authorities. There are 593 Districts in India and each Lok Sabha Member can choose one District whereas a Rajya Sabha Member may suggest one or more Districts in the state of his election. Nominated members may recommend works in one or more Districts anywhere in the country. Even if we take it that a Rajya Sabha Member or a Nominated Member may recommend works in at least four Districts on an average, the total number of accounts to be maintained for the Rajya Sabha and Nominated Members will come to more than 1000. If we add the number of elected LS Members, the number of accounts to be audited in all will be above 1500.
• Thus, the New Guidelines will introduce more than 1500 auditors, not within the purview of the CAG, to audit the Scheme accounts, replacing the constitutional requirement of public audit.
• Nodal Ministry not in a position to monitor the Scheme: As per the General Financial Rule 65 (1), the nodal Ministry on whose behalf a grant is given by Parliament is fully "responsible for the control of expenditure against the sanctioned grants and appropriations placed at its disposal."
CIC/MOSPI/A/2017/195498 Page 19 • The Evaluation Team of the Planning Commission confirmed on direct field survey the observation of the 2001 Audit report in this regard: "Ministry of Statistics and Program implementation who administer the Scheme and are responsible for its monitoring and its evaluation, admitted that they were not in a position to effectively monitor the scheme at the operational level."
• No Parliamentary control over contingency expenditure: Para 4.17 of the new Guidelines allows that the District Authority to utilize 0.5% of the amount spent under the Scheme in the year as 'contingency expenses' on stationary, office equipment, telephone, fax, postal charges, monitoring expenses and to get audit certificate and audit of the accounts. Under this provision contingency expenses for each MP per year will be Rs. 1 lakh and a total of Rs. 7.9 crores will be at the disposal at the District Authorities.
• It is to be seen whether the CAG was consulted in creating such contingency expenses and placing them at the disposal of the District Authority. In the absence of an accounting system with the approval and audit of the CAG, Parliament cannot have any control over the expenditures incurred by the District Authorities and implementing agencies.
• Limitations on the cost and nature of works to be executed, which were in the earlier guidelines, removed: "At the time of announcement of the Scheme on December 23, 1983, Prime Minister Narasimha Rao put certain limitations on the cost and nature of works to be executed under the Scheme. It was stated: "The Scheme was for developmental works of small nature" and that "each work under the Scheme shall not exceed Rs. 10 lakh." An illustrated list of small works permissible was also then given. The Guidelines of December 1994 added another list of non-permissible works under the Scheme. Alterations were made several times in these two lists....
a) The new Guidelines of November 2005 have deleted the illustrative list of permissible works.
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b) Para 2.4 of the New Guidelines allows sanction of all works 'except those prohibited' in the list of non-permissible works.
c) The limit of Rs. 10 lakh for each work was later raised to Rs. 25 lakh. However, requests from Members for works costing more than Rs. 25 lakh were placed for consideration and approval of the MPLADS Committee of the House concerned. The New Guidelines remove this limit of Rs. 25 lakh per work.
d) A member can now recommend at his discretion a work costing up to Rs. 1.99 crore (excluding the contingency expenses) in one lump sanction.
e) Scheme funds are sent directly to the District head even though the funds are sanctioned as 'part of the Central Assistance for State Plans'
f) "The funds to the Centrally sponsored schemes are normally routed through the State Governments and implemented through the District Planning Centers. The MPs, MLAs and the representatives of the Panchayati Raj Institutions are in the DPC. In fact, the first set of Guidelines of the Scheme formulated in April 1994 by the Ministry of Rural Development contained procedures to coordinate the works under the Scheme with other Centrally sponsored and central sector programmes operating within the District.
g) However, when a new set of Guidelines were prepared in 1994 December after transfer of the Scheme to the Ministry of Statistics and Programme Implementation, the procedure of involving the District Planning Committee and the Panchayati Raj Institutions was completely deleted and the recommendation of the MP was directly dealt by the Collector without any determination of priorities and coordination with other Schemes in the District.
h) Many of the works to be undertaken under the Scheme are from the items included in the 11th and 12th Schedule for the Panchayati Raj Institutions
i) Though the November 2005 Guidelines has removed the list of permissible works under the Scheme, they have still indicated the types of works to be undertaken under the Scheme.
j) Para 2.4 of the Guidelines states: "MP may choose some works for creation of durable assets if national priorities namely drinking water, education, public health, sanitation, and roads under the Scheme." All CIC/MOSPI/A/2017/195498 Page 21 these items are included in the eleventh Schedule and the Twelfth Schedule of the Constitution for the Panchayati Raj Institutions.
28. Report of the Second Administrative Reforms Commission, January 2007: With regard to the unconstitutionality of the MPLADS scheme, the recommendations of the Second Administrative Reforms Commission (ARC) are particularly relevant. The Second ARC has recommended the abolition of the MPLADS and Members of Legislative Assembly Local Area Development Scheme (MLALADS) because "these schemes seriously erode the notion of separation of powers, as the legislator directly becomes the executive." The Commission considers the exercise of discretionary powers by legislators to sanction or approve public works clearly as an executive function, whether or not the government appoints the legislators to a designated office. Therefore, "the use of discretionary funds at the disposal of legislators, the power to determine specific projects and schemes or select the beneficiaries or authorize expenditure shall constitute discharge of executive functions and will invite disqualification under articles 102 and 19 (of the Constitution), irrespective of whether or not a new office is notified or held."
Era Sezhiyan's Critique
29. Mr. Era Sezhiyan, former Chairman, Public Accounts Committee of Parliament and Senior Fellow of Institute of Social Sciences, New Delhi, published in 'The Hindu' dated 24th April 2003. The article, apart from giving details of irregularities and the comment on the report of CAG, also gives an insight how the scheme is contradictory to the constitutional provisions and the general financial rules. The relevant extract of the article is reproduced below:
• "To say the least, the management of the scheme is a shambles. The accounting process is abominably anarchic. Some guidelines are blatantly contradictory to the constitutional provisions and general financial rules. There is a clear guideline that the funds released under the scheme are non-lapsable: it means that funds unutilized in a particular year can be carried forward to the succeeding years."
• "Under Article 112 of the Constitution, the annual financial statement, popularly known as the budget, presents the estimated receipt and expenditure of the government. After the grants are approved and the CIC/MOSPI/A/2017/195498 Page 22 Appropriation Bill is passed by the Parliament, the Government is empowered to draw from the Consolidated Fund monies not exceeding the amount sanctioned. The grants sanctioned by the Parliament are valid only for the financial year. The general financial rule No. 64 states: any unspent amount is not available for utilisation in the following year." • "Nothing will be more incredible than the Secretary in administrative charge of the Ministry disowning the basic responsibility in administration of the grants placed at the disposal of his Ministry. Financial rule 65(1) reads: that the Department of the Central Government administratively concerned or the authority on whose behalf a grant of appropriation is authorized by Parliament shall be responsible for the control of expenditure against the sanctioned grants and appropriations placed at its disposal and shall exercise control through the Heads of Department and other controlling officers, if any, and disbursing officers subordinate to him."
Mr. Era Sezhiyan recommended; "there should be effective decentralization of the planning process starting from the District Planning Board where MPs, MLAs and Heads of the District, Block and Panchayati Raj Institutions should be involved in the formulation of planning and supervision of the projects chosen. The MPLADS has only served the purpose of diverting the attention of MPs from the failures of planning and administrative performance at all levels, and to confine the attention to some small schemes restricted to individual constituencies. The Government's disowning of responsibility for the works under their scheme and the involvement of MPs in the administrative system, thereby weakening the capability to ensure the accountability of the executives to Parliament, cuts at the very roots of the Parliamentary System of Democracy in the country."
Whether MPLADS Constitutional?
30. The petition of Common Cause pointed out several grounds how the MPLADS was unconstitutional.
a) MPLADS erodes the system of checks and balances and seriously undermines the Parliamentary System of Governance that was adopted by the Constitution of India. The cardinal premise of a parliamentary CIC/MOSPI/A/2017/195498 Page 23 democracy, as also enshrined in our Constitution, is that the legislature legislates and gives sanctions, but it is the executive which implements those policies and programmes while rendering full account of its action, plans and programmes to the Parliament regularly. The Parliament is not meant to govern, but to control the government. In Ram Jawaya Kapur vs. State of Punjab, AIR 1955 SC 549, the Hon'ble Supreme Court has categorically held that "In India, as in England, the executive has to act subject to the control of the legislature.." Further, in Indira Nehru Gandhi vs. Raj Narain, (1975) Supp. SCC 1, it has been held by this Hon'ble Court that 'separation of power' is the basic structure of the Constitution. It is in this background, Era Sezhiyan's book titled, 'MPLADS Concept, Confusion, Contradictions' states, "The concept of the MPLAD Scheme to place certain annual grants at the discretion of each Member of Parliament to choose small works for implementation in their respective constituencies has done irreparable damage to role of Members of Parliament in the parliamentary system." By making the legislature a partner in the functioning of the executive, the MPLADS erodes the check, which the legislature is supposed to exercise over the executive. The legislature has been provided with the task normally done by the executive in our present form of Parliamentary Democracy. This overlapping of functions is clearly in violation of the constitutional mandate. If the Parliament, which is supposed to keep a check on the Executive, is entrusted with executive tasks, then it will not be possible for them to monitor and keep a proper check on the executive. This will erode the whole system of checks and balances and fair accountability, which will be detrimental to the progress and functioning of the country as a whole.
b) It offends the spirit and object of 73rd and 74th Amendment of the Constitution which provides for local self governance. The prime object of the 73rd and 74th Constitutional Amendments was to move towards decentralization of the governance by envisaging panchayats and municipalities as institutions of self government. The 11th Schedule (Article 243 G) and 12th Schedule (article 243W) contain the list of 47 subjects which are related to programmes and works to be done by the Panchayats and Municipalities. Ironically, most of the Schemes being funded and executed under the MPLADS are not from the Union list at all, instead they are part of the 11th and 12th Schedules of the Constitution.
CIC/MOSPI/A/2017/195498 Page 24 MPLADS is a central government grant released directly to the District Collector and is completely out of bounds of the Panchayati Raj Institutions. The allocations for MPs under the MPLADS are financed out of the public exchequer and divert funds which would otherwise be available to the local bodies. To quote from the Consultation Paper of the National Commission to Review the Working of the Constitution as extracted in the aforementioned book of Era Sezhiyan, "MPs and MLAs exercising their personal choice and decision in funding and executing the scheme is an usurpation of the power and responsibilities of the Panchayats and Municipalities....In many instances the choice of schemes and the amounts expected can significantly alter or distort local priorities as may be desired or decided by the Panchayats and the Municipalities. However, they may be helpless to rectify the situation, as their own fund may be very limited in comparison to what an MP or an MLA can bring as largesse." I
c) It results in discrimination between the sections of societies in allocation of the work and hence, violation of Article 14 of the Constitution: The powers exercised or enjoyed by the MPs by virtue of MPLADS results in discrimination in allocating the work, thus resulting in violation of Article 14 of the Constitution. The MPs under this scheme can allocate projects and work in any one particular area to the benefit of a particular section of the society and neglect other areas or sections of the society if the said areas or sections are not politically favourable to him. To quote from Era Sezhiyan's book titled, 'MPLADS Concept, Confusion, Contradictions' "When the MP is given full discretion and annual grants at his disposal, he will be eager to undertake works to satisfy the voters in his constituency. However, he will be inclined, more often, to give preference to the demands of those who are politically favourable to him or likely to be favourable to him and his party in the elections. The fact of discretionary us of the public funds for the selected voters favourable to the MP has been brought by the Evaluation Report if the Planning Commission: "Small group having easy access to the MP at times may impress upon him to recommend works according to their felt needs, consequently the felt need of many others may get overlooked." Such a scheme is therefore discriminatory and violative of Article 14 of the Constitution.
d) It gives an unfair advantage to the incumbent MPs/MLAs over their rival candidates in elections: The scheme in the present form gives an unfair CIC/MOSPI/A/2017/195498 Page 25 advantage to the incumbent candidates over their rivals, in as much as it gives a huge amount of discretionary funds in the hands of the incumbent candidates which they can use as they please. To quote from Era Sezhiyan's book titled, 'MPLADS Concept, Confusion, Contradictions' "The political bias caused by the MPLAD Scheme is obvious by the fact that the Lok Sabha MP has the discretion to spend Rs. 10 crore during his term of 5 years and to gain the appreciation and support of his constituents. To control the use of money power in the elections, the election law has set limits to the election expenses at Rs. 1 crore for a candidate in LokSabah elections and Rs. 50 lakhs for an Assembly candidate in a state. However, a sitting Member in a Lok Sabha Consittuentcy for a term of five years has already spent Rs. 10 crore in the constituency at his discretion and in free choice of sites and works. This surely creates a political bias and an electoral advantage in favour of a sitting MP over other candidates who have not the benefit of any public fund spent during or before the election. Though, the public fund under the Scheme may not have been spent for the personal benefit of the Member, still it is a misuse of public funds not for the public purpose for which it was granted by Parliament. As the Law Lords observed in the Porter v Magill case, "It was a misuse of power not for the purpose of financial gain, but for that if electoral advantage. In the sense, it was corrupt."
e) It is being implemented in violation of several financial rules: MPLADS is being implemented in violation of several financial rules, particularly, Rule 64 of the general financial rules, which provides that any unspent amount is not available for utilisation in the following year and Rule 65 (1) which provides that the Secretary of the Ministry in charge will be responsible for the control of expenditure against the sanctioned grants. As apparent from the above, in the present scheme, the funds are non-lapsable and unspent funds can be used for the next financial year. In this scheme, normally Heads of District are responsible for the control of expenditure against the sanctioned grants. Moreover, if some of the MPs are not utilising their funds for the local development and the funds are just lying idle and accumulating (as they are nonlapsable) then the MPLADS is hardly serving its objective.
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31. A five-judge Constitution Bench headed by Chief Justice K.G. Balakrishnan, comprising Justices R.V. Raveendran, D.K. Jain, P. Sathasivam and J.M. Panchal, on May 6, 2010 in a unanimous verdict, held that the MPLAD scheme was Constitutionally valid". Rejecting the contention of the opponents of the scheme that it gives an unfair advantage to the sitting MPs against their political rivals, the bench said there is no reason to believe that the MPLADS cannot be implemented and monitored by the district authorities. It was contended that with MPLADS legislator becomes an executive, which is against principle of separation of powers, but Supreme Court did not agree. The verdict of the Supreme Court is mainly based on the point that both LokSabha and Rajya Sabha have Standing Committees to monitor the scheme and there are various levels of accountability for its implementation. This accountability and answerability need to be systematized.
Public Money, Private Agenda: The Use and Abuse of MPLADS
32. In practice several agencies found that there was no proper supervision by Parliament or its committees and there was no strict adherence to guidelines or norms. Every norm in MPLADS was altered or breached and revised norms are not effective but defective as explained above. Mr. A. Surya Prakash, author, columnist and distinguished fellow at the Vivekananda International Foundation, held several important editorial positions in media organizations such as Zee News, India Editor, Asia Times, The Pioneer. His columns appear in The Pioneer, Dainik Jagran, Eenadu and Samyukta Karnataka. He is also the author of What Ails Indian Parliament. He was awarded a D. Litt by Tumkur University for his work on parliamentary institutions, including this thesis on MPLADS. Presently Chairman, Prasar Bharthi, Dr Surya Prakash authored a book Public Money, Private Agenda: The Use and Abuse of MPLADS (2013) critically analysed the scheme that currently costs the exchequer a staggering 4,000 crore per annum, slammed it as breeding ground of corruption that violates the separation of powers between the legislature and the executive; MPs say that the scheme allows them to 'give' something tangible to their constituents. Author delves deep into the processes of the scheme and brings forth many uncomfortable facts about its functioning, exposing some worrying trends in its implementation, highlighting gross violation of the guidelines by MPs; MPs investing these funds in private trusts and societies created by them; recommending projects CIC/MOSPI/A/2017/195498 Page 27 that are prohibited; insisting on choosing the implementing agencies and handing over the cheques to them; wanting to control payments to contractors; and constantly resisting transparency and accountability. The Comptroller and Auditor General examined this scheme thrice and the government has sponsored independent surveys to assess the scheme. On each of these occasions, the auditors and surveyors have expressed concern over lack of supervision at the district level and gross violation of guidelines by MPs. The book expressed scepticism in regard to the working of MPLADS. The Lok Sabha Committee probed the MPLADS scandal. Legitimate concerns were expressed by Era Sezhiyan and J M Lyngdoh at the available evidence about the misuse of the scheme by many MPs and the cases of corruption. Mr. Surya Prakash gave several examples of misuse. Some excerpts:
Assets not traceable: "Assets" allegedly created under the scheme "could not be traced" by the surveyors; construction of community halls etc within religious places in gross violation of guidelines; construction of shopping complexes to promote private enterprise; diversion of computers bought for schools to commercial enterprises; supply of computers to private educational institutions; community centres built with MPLADS funds being commercially let-out by the beneficiary agencies; and repeat expenditure on a length of road via MPLADS after the very same contract has been "executed" under MLALADS - a similar constituency development scheme for state legislators.
Without sanction: A NABCONS (NABARD Consultancy Services) survey has thrown up disturbing facts. A brief recall of some of these cases would be in order. The guidelines prohibit MPs from identifying the implementing agency because this is seen as the root cause of corruption. Yet, district authorities often come under pressure to appoint an Internal Auditor of the MP's choice.
The auditors found evidence of MPs recommending IAs in nine states and Union territories. In five selected districts the auditors found that over 25 per cent of the works sanctioned were executed by private agencies, and strangely, when MPs recommended works for NGOs, clubs and educational institutions, the beneficiary institutions were themselves appointed as the IAs for the projects. The CAG also found that contracts were awarded CIC/MOSPI/A/2017/195498 Page 28 without adopting standard tendering processes. Another irregularity was the absence of financial sanction and administrative approval. Auditors found that 26 per cent of the works were executed without sanction in four states that were surveyed by them.
Classrooms not found: The auditors have also come up with evidence which establishes fraud. Some samples of state- and district-level records showed misappropriation of funds in some states including West Bengal, Jharkhand, Bihar and Mizoram. School classrooms which were "constructed" by village education committees were nowhere to be found. An FIR had to be lodged with the police about the missing classroom! In Jharkhand a company took an advance of Rs 8 lakh for installing solar water pumps and vanished. In Bihar, officials of the National Rural Employment Programme were duping the government by claiming MPLADS funds for roads already constructed.
Private works of MP: In Sikkim, funds from this scheme were used to construct anti-erosion bunds and walls to protect the private property of the MP and his relatives. Of 22 works sanctioned, all but one related to private property and in a dozen cases the contractors were also the beneficiaries. But, the biggest area of misuse is allocation of these funds to trusts and societies, often controlled by the MPs themselves. In ten states, the CAG found that funds in excess of the prescribed ceiling per society or trust had been released. In seven states, auditors found that 145 ineligible societies and trusts were given funds. Finally, the accounts are not audited regularly. The auditors found 40 such districts. Strangely, the accounts of one DA (District Authority) in Jammu and Kashmir and one DA in Lakshadweep had not been audited since the inception of the scheme in 1993! Diversion of Funds: Actually, some of the cases discussed by the surveyors, which show blatant misuse of the scheme, warrant criminal investigation. Field reports which speak about public money having gone down the drain on works which were never executed are too serious for any agency or institution to gloss over. Similarly, diversion of crores of rupees from this fund to the coffers of private trusts, societies and NGOs, CIC/MOSPI/A/2017/195498 Page 29 or to effect improvements in private property or to further the business interests of individuals, are infringements that warrant severest action.
Each of these instances constitute a betrayal of trust by the MPs who recommended these works and in effect amount to gross misuse of public funds. The response of the parliamentary committee on MPLADS to all the evidence that was placed before it is disturbing. It had nothing to say on these aspects of the NABCONS survey.
Credibility of Parliamentary Committees: This raises the question as to whether people can rely on parliamentary committees to discipline members and protect public interest. If these instances do not stir the conscience of parliamentarians, what will? Further, if such apathy is the standard response of Parliament, can we continue with a scheme that puts so much money in the hands of MPs?
No monitoring: It must also be noted that the government has not taken any initiative to create the administrative infrastructure to monitor the scheme at the district level. Instead, it has raised the fund per MP per year to Rs 5 crore. Since the outgo from fiscal 2011-12 will be close to Rs 4,000 crore per annum, stricter enforcement of accountability norms both at the level of the MP and the district administration is an imperative. Side by side, Parliament will have to ensure greater vigilance to prevent MPLADS from becoming a moneymaking machine for unscrupulous public representatives.
.... there is need to mount pressure on Parliament to ensure that MPs adhere to the guidelines. The Union government must have the gumption to withhold funds to all MPs who fail to comply with the guidelines. There is also need for 100 per cent transparency in the allocation of these funds and accountability in regard to implementation of the projects recommended by members.
Starting point of corruption: Finally, it must be said ...there will be no moral sanctity for its continuance if members of Parliament do not adhere to the scheme's guidelines. Often, MPs tend to be rather brazen in violating the guidelines. It is as if they are throwing a challenge to the CIC/MOSPI/A/2017/195498 Page 30 government and asking it to do whatever it can. Now that the government has announced a humongous increase in the annual allocation for the scheme, it cannot shirk the responsibility of ensuring strict compliance with the guidelines. As everyone knows and as successive audit reports establish, noncompliance with guidelines is the starting point of corruption. Therefore, if MPs lack the discipline to conform to the guidelines, MPLADS must be scrapped", Mr A Suryaprakash wrote in his book.
Only immunity: no accountability?
33. Every scheme should have proper checks. An authority like MP who recommends works at his own discretion should be accountable and answerable. A wrong doer should be questioned, inquired and if proved should suffer consequences so that public money is saved or recovered if wrongfully spent. Whether MPs are accountable or totally immune from accountability? The Constitution accorded them some freedom and privileges to do public good. Two important provisions of the Constitution of India prescribe powers, privileges and salaries of the MPs. They are:
105. Powers, privileges, etc., of the Houses of Parliament and of the members and committees thereof. -- (1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament. (2) No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.
(3) In other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament by law, and, until so defined, shall be those of that House and of its members and committees immediately before the coming into force of section 15 of the Constitution (Forty-fourth Amendment) Act, 1978.
(4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of Parliament or any committee thereof as they apply in relation to members of Parliament.
106. Salaries and allowances of members. -- Members of either House of Parliament shall be entitled to receive such salaries and allowances as may from time to time be determined by Parliament by law and, until provision in that respect is so made, allowances at such rates and upon such conditions as were immediately before the commencement of this Constitution applicable in the case of members of the Constituent Assembly of the Dominion of India.
CIC/MOSPI/A/2017/195498 Page 31
34. The Freedom of Speech of MPs is much wider privilege than the fundamental right of citizens, so that they speak truth fearlessly. In Pandit M.S.M Sharma v. Shri Sri Krishna Sinha & Ors., 1959 Supp. (1) SCR 806, at 856, and Special Reference No. 1 of 1964, also known as the Legislative Privileges case, 1965 (1) SCR 413, at p. 441]. The freedom of speech that is available to Members of Parliament under Article 105(1) is wider in amplitude than the right to freedom of speech and expression guaranteed under Article 19(1)(a) since the freedom of speech under Article 105(1) is not subject to the limitations contained in Article 19(2).
35. Clause (2) confers immunity in relation to proceedings in courts. It can be divided into two parts. In the first part immunity from liability under any proceedings in any court is conferred on a Member of Parliament in respect of anything said or any vote given by him in Parliament or any committee thereof. In the second part such immunity is conferred on a person in respect of publication by or under the authority or either House of Parliament of any report, paper, votes or proceedings. This immunity that hasbeen conferred under Clause (2) in respect of anything said or any vote given by a Member in Parliament or any committee thereof and in respect of publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings, ensures that the freedom of speech that is granted under clause (1) of Article 105 is totally absolute and unfettered. [Legislative Privileges Case pp. 441, 442].
36. This cannot extend to mean immunity from criminal liability, but this privilege has been expanded by the Supreme Court in PV Narasimha Rao v CBI case [AIR 1998 SC 2120] by giving a literal interpretation to Article 105. Facts of this case are: 10th Lok Sabha (1991) Congress (I) party emerged as the single largest party and it formed coalition government. The support of 14 members was needed to have the no-confidence motion defeated. On 28-7- 1993, the no-confidence motion was lost, 251 members having voted in support and 265 against. MPs of Jharkhand Mukti Morcha (the JMM), Janata Dal, and Ajit Singh group (the JD, AS) voted against the no-confidence motion. Ajit Singh abstained from voting thereon. Shri Ravindra Kumar filed a complaint alleging that in July 1993 a criminal conspiracy was hatched pursuant to which the above members agreed to and did receive the bribes, to vote against the no-confidence motion. A prosecution was launched and cognizance was taken by the special CIC/MOSPI/A/2017/195498 Page 32 Judge Delhi. The Delhi High Court dismissed the petitions seeking to quash the charges. The Supreme Court referred appeals to a Constitution Bench, which considered two main issues - whether MP could claim immunity from prosecution for bribery and whether MP a 'public servant'? Though SC agreed that MP is a public servant, their acceptance of bribe was held to be 'immune' from prosecution. This simply means, they can take bribes for actions in House, and by law no action could follow! A tragedy, indeed.
US case
37. The US Supreme Court adjudicated a similar case of MP's bribery with a different conclusion unlike our Supreme Court. In U.S vs. Brewster (United States), case, a former United States Senator was charged with solicitation and acceptance of bribes. The district Court dismissed the indictment on the ground that the Speech or Debate Clause of the Constitution shielded him 'from any prosecution for alleged bribery to perform a legislative act'. The United States filed a Direct Appeal in the Supreme Court of United States. The main issuebefore it was: Whether a Member of Congress (US Parliament) may be prosecuted under 18 U.S.C. ss 201(c)(1), 201(g), for accepting bribe in exchange for a promise relating to an official act? US court did not favour corrupt MP. A law scholar, Mr. Supallab Chakraborty has compared these two significant decisions of two democratic nations in an article published on www.lawsctopus.com. Section 9 of Representation of People's Act states that the state shall have conclusive proof to the fact that the person dismissed on the grounds of corruption of disloyalty and until proved the person may keep holding his office (Lalu Prasad @ Lalu Prasad Yadav v. State through C.B.I (A.H.D.) Ranchi, Jharkhand; AIR(2003)SC 3838). This is a privilege accorded to MPs and similar elected office holders. Author says: "There is plethora of cases filed against sitting MLAs MPs and even Indian Foreign Services for that matter (Ratan Tata v. Union of India; (2014) 1 SCC 93; Nira Radia group of cases handled by a special team under CBI allegedly involved in corporate lobbying and 2G scam spectrum broking still holds office as an officer of Indian Foreign Services.); but none has been seen till the end. It is as if a cocoon of protection has been built by the legislative and judicial process around these extra privileged persons. ...the court has laconically favoured the political crowd by wrongfully interpreting the discretionary powers entitled to them by the constitution.The U.S. court has been bold enough to not to give the judgement CIC/MOSPI/A/2017/195498 Page 33 in favour of the corrupt politicians and state that the "primary responsibility for punishing the wrongdoer rested with the Judiciary and it is the duty of the same to delimit the scope of legislative immunity" [Tenney v. Brandhove, 341 U.S. 367 at 371; U.S. v. Brewster, 408 U.S. 501 (1972)]. The element of corruption was not taken into consideration in the majority decision of PV Narasimha Rao case. The reflective effect of this interpretation on the society was not taken into consideration.
38. In the Brewster case the Supreme Court of the United States narrowed the scope of the Speech or Debate Clause of the U.S. Constitution which provides immunity to the Senators from certain civil and criminal suits concerning their legislative acts. In explaining the purposes of the Speech or Debate Clause, the US Supreme Court traced the ancestry of the Clause to the English Bill of Rights of 1689, which they put as "the culmination of a long struggle for parliamentary supremacy". Not all actions taken by a Member in the course of his congressional duties are covered by the Speech or Debate Clause. As is also aptly, pointed out by Lord Salmon in the Salmon Commission Report [Report of the Royal Commission on Standards of Conduct in Public Life, 1976 (chaired by Lord Salmon)] "Now this is a charter for freedom of speech in the House; it is not a charter for corruption". The law scholar pointed out that PV Narasimha Rao judgment blatantly took the literal interpretation of the provision 105(1) and 105(2) rather increased the scope of immunity under it. According to article 105(2) of the Constitution of India a Member of the parliament is immune from any proceeding against him in respect of any Vote or in respect of any speech made by the M.P in the parliament. "According to the provisions of the Parliament such immunity is necessary in order to protect the integrity of the Country. But such immunity cannot go beyond the ambit of the scope of the article. Article 105(1) of the Constitution of India says that the freedom of speech in Parliament is absolute and independent of Article 19. And Article 105(2) says that the Constitution of India provides Immunities of M.Ps in respect of anything said or any vote given by him in Parliament. But these Immunities do not allow the MPs to accept bribes and indulge into immoral practices. The right to indulge into bribe is no where explained in the Articles of the Constitution as it is an illegal practice". This scholar referred to two Rules of interpretation- Golden Rule and Mischief Rule. Golden Rule is that Sec 2(c)(viii) & 2(b) of the Prevention of Corruption Act and the Representation of the Peoples CIC/MOSPI/A/2017/195498 Page 34 Act, the MP comes under the term of Public Servant, thus taking of bribe by a Public Servant under his office capacity is an illegal Act which needs to be prosecuted.[L.K. Advani v. CBI; 1993 IIIAD Delhi 53, 1997 RLR 292] Mischief Rule ignored
39. The SC in PV Narasimharao should have taken into consideration the reason behind the statute, i.e, mischief rule. The purpose behind the immunity of the Article is to let the M.P speak his heart out without any fear or scare of being convicted. In order to give the MP safeguard the constitution of India found this immunity for the MPs so that they cannot be prosecuted for anything they say or vote in the Parliament. Though the immunity given to the members of the Parliament under Article 105(1) and (2) has wide amplitude but the act of bribe taking cannot be included into it. The offence of bribe taking is a big offence and it involves the act of breaking of trust and misuse of the belief of the people.However the court did not take into consideration any of the above and thereby came to an absurd rationale that the alleged bribe-takers were entitled to immunity under Art. 105(2) and as the alleged conspiracy for acceptance of bribe was "in respect of" or having nexus with the vote against the no- confidence motion. Mr.Ajit Singh, the MP who had abstained from voting, however, was not to be entitled to such immunity because he didn't actually exercise his vote. On the contrast, with respect to the bribe -givers, charges against them of bribe giving were held to be valid and sustainable.
40. Though MP is public servant under Prevention of Corruption Act, 1988, he cannot be removed from his office. Supreme Court said that it has no power to remove MP from his office. The Constitution did not give power to President also to remove an MP. Parliament alone can remove an MP. This means Parliament is a judge in its own case, which might lead to further corruption, as MP's might then try to appease those Members who decide their fate. The rationality of distinction made by the Supreme Court, (PV Narasimha Rao) between bribe- givers and bribe-takers, rendering bribe-givers susceptible to prosecution but not bribe-takers, is absurd according to them indignation should not entitle them to interpret the constitution narrowly. However, an apt rationale can be found in the majority opinion in Brewster, and their verdict that the illegal conduct is taking or agreeing to take money for a promise to act in a certain way........acceptance of the bribe is the violation of statute, not performance of CIC/MOSPI/A/2017/195498 Page 35 the illegal promise. Mr Supallabh quoted Buckley J., in R v Currie, 1992:"That a Member of Parliament against whom there is a prima facie charge of corruption should be immune from prosecution in the courts of law is to my mind an unacceptable proposition at the present time. I do not believe it to be the law." (https://www.lawctopus.com/ academike/ comparative-analysis-p-v-narasimha- rao-v-state-u-s-v-brewster/). PV Narasimharao case emphatically established that MP, is a public servant, and enjoys unparallel privilege of immunity from even criminal liability and that he cannot be removed either by Supreme Court or even President of India. The MP is authority because he is a lawmaker, his vote can change the Government, pass or defeat a legislation, alter rights and duties of the entire people of the nation. This kind of immunity conditions facilitated an MP to escape to other countries. Mr. Vijay Mallya was elected to Rajya Sabha as an independent candidate with the support of MLAs various parties like Congress, BJP and Janata Dal (U) in Karnataka Assembly twice. Being an honourable member of RajyaSabha, he was wanted in a loan fraud case, and he fled on 2nd March 2016 from India, facilitation of fleeying is a controversy now. A group of 17 Indian banks were trying to recover approximately ₹9,000 crore in loans which Mallya has allegedly routed to gain 100% or a partial stake in about 40 companies across the world. The Income Tax Department and the Central Bureau of Investigation are investigating Mallya for charges including financial fraud and money laundering. The 17 banks filed a joint petition at the Supreme Court of India in March 2016 to try to prevent Mallya from leaving the country, but the Government indicated that he had already left. The Enforcement Directorate of India also filed a money laundering case against him in March 2016 for allegedly sending abroad some ₹900 crore (US$130 million) that had been loaned to his airline. On 24 April 2016, the Ministry of External Affairs (India) revoked Mallya's passport. An MP with such serious allegations could have been removed from Rajya Sabha membership but he was allowed to resign on 2 May 2016, the day before their Ethics Committee was prepared to recommend his expulsion. There is still dearth of law to remove and disqualify such persons from entering people's Houses again.
UK: MPs responsibilities & Code of Conduct
41. Parliament of UK, in its website, has a leaflet called 'You and Your MP' contributing to well-informed democracy, explains the role of an MP. MPs have responsibilities to three main groups: their constituents, Parliament and CIC/MOSPI/A/2017/195498 Page 36 their political party. MPs' duties in Parliament include participating in debates and voting on legislation and other matters. They may also be members of committees examining new laws or the work of government departments. Some have a role as a minister in government or a spokesperson in opposition. MPs can help their constituents by advising on problems (particularly those that arise from the work of government departments), representing the concerns of their constituents in Parliament and acting as a figurehead for the local area. MPs usually support their party by voting with its leadership in the House of Commons and acting as a representative for the party in their constituency.This leaflet says citizen can have internet access with MP, call him on given number, or can write to them or meet the MP in constituency, if he has an office. The links like http://findyourmp.parliament.uk/commons/l/ or www.parliament.uk/directories/hciolists/alms.cfm, provide means of access. They help voters with problems such as • Benefits, pensions, national insurance, and other matters dealt with by the Department for Work and Pensions; • Immigration and other problems dealt with by the Home Office; • Tax problems involving the HM Revenue and Customs • Problems with the NHS; • Problems with the Child Support Agency; • School grants and closures.
42. Unlike in India, the MPs in UK there is a Code of Conduct that helps MPs understand their responsibilities to Parliament and the public. In addition to guidance, the Code also requires all Members to declare outside interest, like paid work or gifts. (House of Commons Code of Conduct Approved by the House of Commons on 12 March 2012, 17 March 2015 and 19 July 2018 Ordered by the House of Commons to be printed 24 July 2018). The Code says:
Accountability Holders of public office are accountable for their decisions and actions to the public and must submit themselves to whatever scrutiny is appropriate to their office. Openness Holders of public office should be as open as possible about all the decisions and actions that they take. They should give reasons for their decisions and restrict information only when the wider public interest clearly demands. Honesty Holders of public office have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest.
43. They have a register, where members have to disclose financial interests. For instance an MP Abbott Ms Diane (Hackney North and Stoke Newington) CIC/MOSPI/A/2017/195498 Page 37 disclosed: 1. Employment and earnings 9 October 2017, received £1,500 from Avalon Television, 4A Exmoor St, London W10 6BD, for an appearance on the Russell Howard Hour television show. Hours: 3 hrs. (Registered 07 November 2017) 8. Miscellaneous Since December 2015, a trustee of the Diane Abbott Foundation, which works to excel and improve education. (Registered 26 October 2016). [https://www.parliament.uk/mps-lords-and-offices/standards- and-financial-interests/parliamentary-commissioner-for-standards/registers-of- interests/register-of-members-financial-interests/The register has 441 pages.] In UK, the Salmon Commission has recommended:"Membership of Parliament is a great honour and carries with it a special duty to maintain the highest standards of probity, and this duty has almost invariably been strictly observed.Recently the Vice-President of India, and RajyaSabha Chairman, Mr Venkayya Naidu emphasized the need for developing a Code of Conduct for MPs. He said: "To ensure that people do not lose faith in political processes and institutions, there is a need for political parties to "evolve a consensus on the code of conduct for their members, both inside the legislature and out of it". (https://indianexpress.com/article/india/need-code-of-conduct-for-mps-mlas-says-vice-president- venkaiah-naidu-5336575/) Answerability of MP: CIC Bench decision
44. It is unfortunate that Division Bench of CIC failed to make MPs answerable under RTI Act. The question whether MP a public authority under RTI Act was considered by a bench of Ld CIC Wazahat Habibullah and Ld IC Shri ShaileshGandhi in Girish Chandra Mishra v Smt Sonia Gandhi, on December 10, 2009. It was contended that with the specific authorities conferred by the Constitution each individual MP should be regarded as public authority under RTI Act. Shri L Nageshwar Rao, then Senior Advocate in his written argument stated that MP is an individual and not a 'body' or 'authority', which only could be considered as 'public authority' as per definition under Section 2(h) of RTI Act. He wrote to CIC: The term 'body' is defined by Black's Law Dictionary (6th edition, 6th reprint 1995) as 'Used of a natural body, or of an artificial one created by law, as a corporation.' The same is defined in P. RamanathaAiyar's 'Advanced Law Lexicon' (3rd edition 2005) as 'a number of individuals spoken of collectively, usually associated for a common purpose, joined in a certain cause, or united by some common tie or occupation, as, a legislative body the body of the clergy a body corporate.' It is, therefore, evident that such elected CIC/MOSPI/A/2017/195498 Page 38 representatives cannot individually constitute a 'body' for the purposes of section 2 (h) of the RTI Act, though the institutions of which they are members may be said to constitute such a 'body'. Furthermore, it is self-evident that elected representatives cannot constitute an 'institution of self-government' within the meaning of section 2 (h)" of the RTI Act, though in the case of elected representatives to Panchayats, Municipal Corporations, etc they are members of such institutions of self government. In Rajasthan State Electricity Board, Jaipur v. Mohan Lal & Ors. (1967) 3 SCR 377 (@ page 385), a Constitution Bench of the Supreme Court referred to the meaning of the word/ authority' as defined in Webster's Third New International Dictionary, and observed as under:-The meaning of the word 'authority' given in Webster's Third New International Dictionary which can be applicable, is 'a public administrative agency or corporation having quasi-governmental powers and authorised to administer a revenue- producing public enterprise. This dictionary meaning of the word 'authority' is clearly wide enough to include all bodies created by a statute on which powers are conferred to carry out governmental or quasi- governmental functions.' This definition of authority propounded in the Rajasthan State Electricity Board case was quoted and relied upon by Lahoti, J.(as the learned Chief Justice then was) in his dissenting judgment (on behalf of Raju, J. and himself) in Pradeep Kumar Biswas &Ors. V. Indian Institute of Chemical Biology & Ors. (2002) 5 SCC 111 (Para 74). In Some Prakash Rekhi v. Union of India & Anr. (1981) 1 SCC 449 (Para 27), it was observed by Krishna Iyer, J. (Speaking for himself and Chinappa Reddy, J., with Pathak, J. delivering a separate but concurring judgment) as under: "Authority in law belongs to the province of power: 'Authority (in administrative law) is a body having jurisdiction in certain matters of a pubic nature.' Therefore, the 'ability conferred upon a person by the law to alter, by his own will directed to that end, the rights, duties, liabilities or other legal relations, either of himself or of other persons' must be present extra to make a person an 'authority'. When the person is 'an agent or instrument of the functions of the State' the power is public."
45. He further argued applying the test laid down by the Supreme Court in Som Pal Rekhi's case, viz., that there must exist the 'ability conferred upon a person by the law to alter, by his own will directed to that end, the rights, duties, liabilities or other legal relations, either of himself or of other persons' to make a CIC/MOSPI/A/2017/195498 Page 39 person an 'authority', it would appear that an elected representative would not satisfy the tests laid down and would not constitute an 'authority'. A fortiori, such an elected representative may not comprise an 'authority' as usually understood in law and therefore not be covered by the said expression as used in section 2 (h) of the RTI Act. In support of his arguments Shri L. Nageshwar Rao has cited Venkatarama Aiyar, J. speaking for the Court in Tirath Singh vs. Bachittar Singh & Ors. (1955) 2 SCR 457 (page 464):
"But is a rule of interpretation well- established that where the language of a statute, in its ordinary meaning and grammatical construction, leads to as manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumable not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence."
Shri Rao further contended:
"(i) it is a well-known fact that most elected representatives and their offices function on the basis of political supporters and party workers and not of duly appointed officers or employees. There are also usually no well- defined spheres of work, no fixed remuneration or budget, and no fixed hierarchy amongst such workers who are involved in the functioning of the office of an elected representative. Furthermore, even if such of those obligations as are incapable of performance by the very nature of an elected representatives' office were to be left out of consideration, even then other issues would remain such as that of appointment of the Public Relations Officers and First Appellate Authority by elected representatives.
(ii) A Member of Parliament (who would obviously be receiving maximum facilities and allocation in the hierarchy of elected representatives) receives, as per the Salary, Allowances and Pension of Members of Parliament Act, 1954 (as amended from time to time), a sum of Rs. 8500 towards office expenditure. Imposing an obligation of maintaining an establishment (which would be a necessary fallout of being held to be a 'Public Authority' and therefore being held liable to discharge the obligations imposed by section 4 (1) of the RTI Act would thus necessarily entail additional personal expenditure by elected representatives, which may not necessarily be made up by the statutorily prescribed fee that is required to be paid by information seekers."
46. There is a strong counter argument to the above contention. There are two land mark orders of the Supreme Court that held MP is public servant and has 'office'. In A. R. Antule case (AIR 1984 SC 718), the SC said: "It is admitted fact that all the MPs and MLAs are public servants defined u/s 21 description 12(a) of the Indian Penal Code 1860. In MP Bribery Case P.V. Narsimha Rao vs. State (CBI etc)[AIR 1998 SC 2120]held that in the light of Articles 84 (Qualification for membership of Parliament), 99 (Secretariat of Parliament), 101 (Vacation of Seat), 173 (Qualification for Membership of the State Legislature) & CIC/MOSPI/A/2017/195498 Page 40 190 (Vacation of Seats), a Member of Parliament holds an office and is required to perform public duties, thereby he is a public servant (Prevention of Corruption Act (44 to 1988) Sec. 2(c)(viii) [B at page 2122]. It also held that "Office" means a position to which certain duties are attached esp. a place of trust, authority or service under the Constituted authority (per Agrawal J), PARAS 65, 66, 67, 70 & 90. In Badri Prasad vs. President, District BoardAIR 1952 All 681, the Allahabad High Court explained the "Authority'-as -"A legal body invested with some power. A body of persons who are not recognized by law as a legal entity cannot be considered to be am authority within the meaning of the word in the Constitution of India". As per Wharton Law Lexicon the Authority means -"a right, an official or judicial command, as a legal power to do or act given by one man to another. It may be express or implied". Sec. 186, Indian Contract Act 1872 says: An authority of an agent may be express or implied. Sec. 187 explained it further that an authority is said to be express when it is given by words, spoken or written. An authority is said to be implied when it is to be inferred from the circumstances of the case; and things spoken or written, or the ordinary course of dealing, may be accounted circumstances of the case. Halsbury's laws of England 3rd Ed. Vol. 30 Pg. 682, defined 'Public Authority' saying - A public authority is a body not necessarily a country council, municipal Corporation or the local body authority, which has public or statutory duties to perform; and which performs those duties and carries out its transactions for the benefit of the public and not for the private profit. Such an authority is not precluded from making a profit for the public benefit; but commercial undertakings acting for profit and trading corporations making profits for their corporate are not public authorities even if conducting undertakings of public utility.
47. MPs are bound by the provisions of the Constitution of India and the Representation of the People Act 1950 and also 1951 and its Rules, before and after election and they are also bound by model code of conduct during election process. The state's exchequer is burdened with the all expenses of the MPs. MP is provided with a residence which includes an office, given a PS and body guards, besides driver. The decision of MPs to recommend certain works under MPLADS will provide benefits to some and deny to those whose application for works will be denied. Article 12 'Definition- "In this part, unless the context otherwise required, 'the state' includes the government and Parliament of India CIC/MOSPI/A/2017/195498 Page 41 and the government and the legislature of each of the states and all local or other authorities within the territory of India or under the control of the government of India." Supreme Court said in Ramana Dayaram Shetty v. International Airport Authority of India, [AIR 1979 SC 1628, 1638 paragraphs 14-16]: "If a statutory corporation, body or other authority is an instrumentality or agency of Government, it would be an 'authority' and therefore 'state' within the meaning of that expression under Article 12". That the definition of 'State' is not confined to a Government Department and the legislature but extends to any action Administrative (Whether statutory or non- statutory), judicial or quasi-judicial, which can be brought within the fold of 'state action' being action which vitiated dates a fundamental right. Under mentioned decisions are very much relevant for kind consideration. The Supreme Court in Gulam v. State of U. P. AIR 1981 SC 2198 Para 23, State of Punjab v Raja Ram AIR 1981 SC 1694, Para 5, and Som Prakash v UOI AIR 1981 SC 212 Para 34, 37 explained that even a private body may be 'State' (Mahabir Auto Stores v Indian Oil Corporation (1990) 3 SCC 952.)
48. Ignoring all these authorities of law the bench of two Ld. Commissioners agreed with the argument of Shri L Nageshwar Rao and declared that MPs, MLAs and counsellors are not public authorities. His argument and CIC's conclusion in this case does not hold water. Shri Rao relied mostly on dictionary meanings and interpretation of words 'body' and 'authority'. The Ld Counsel Mr Rao was right in saying MP is an individual and not a 'body', but it cannot be said that such a constitutionally empowered 'office' is not 'an authority'. The membership in Parliament is an office created by Constitution that conferred significant 'authority' to every Member of Parliament, who together in majority make law, form and throw out government.
49. Culling out from various Judgments, Shri Rao pointed out the criterion of 'authority' as follows: the 'ability conferred upon a person by the law to alter, by his own will directed to that end, the rights, duties, liabilities or other legal relations, either of himself or of other persons' must be present extra to make a person an 'authority'. When the person is 'an agent or instrument of the functions of the State' the power is public." Then he argues that he is not. Having elected as per delimitation, process, recognition, norms etc of Representation of People Act, as per qualifications prescribed under Constitution, CIC/MOSPI/A/2017/195498 Page 42 MP enjoys very substantial powers of passing law, and altering the rights and duties of the people. MPs share the sovereign power of Parliament, they can even form Executive Government, they can throw away a Government and elect another. They decide the fate of 25 crores of Rupees of people's money in five years. They are fully and directly financed by the Government. Political Executive controls the MPs. They enjoy immunity which is almost 'absolute' as envisaged by Constitutional provisions and expanded by literal interpretation by the Judiciary. MP is more than an authority. Unfortunately the Two-member bench of CIC failed to find this 'authority'. Shri Rao relied upon the 1955 Judgment of Supreme Court, considering the fact that then the salary of MP was only Rs 8500. In 2018 the financial benefits and privileges of MPs cannot be compared to what they had in First Lok Sabha. The CIC should have understood this difference and absence of MPLADS in 1955.
50. Shri Rao says if MP is interpreted as public authority under RTI Act, such a grammatical construction will lead to manifest contradiction of apparent purpose of the enactment or to absurdity. But it is exactly reverse of it. If the MP is not considered as public authority and based on dictionary meanings as contended by Shri Rao, concluded that he is not answerable, it surely contradicts the basic purpose of RTI Act, i.e., bringing transparency in democratic governance and making public servants accountable and answerable to the people. This Commission has no doubt that an MP, who does not spend the quota of Rs 5 crore per annum, or rejects valid requests for allocation, should be answerable. The RTI Act imposes a very minor obligation of being accountable. "Hamara paisa hamara hisaab" (we demand accounts for spending our money) is the foundation of the RTI. By not extending this obligation to MP, an office created by the Constitution and a law passed by Parliament, this interpretation results in absurdity of giving undesirable immunity to MP from answerability. Supreme Court says that MP is immuned from criminal prosecution though he accepted bribes for doing official favour in Parliament, and CIC division Bench says, that MP need not inform its voters. In a democracy, can we believe that MP has privilege to reject works, or need not spend quota under MPLADS and also exempted from giving reasons for the same? Is it just rule to say that MP can take bribes to vote in Loksabha without fear of any prosecution? Shockingly it is not a belief, but the law laid down by the Supreme Court (PV Narasimhar Rao) read with CIC Division Bench (Girish Chandra Mishra). It is sad that the CIC/MOSPI/A/2017/195498 Page 43 division bench of CIC has unreasonably agreed that if we interpret otherwise it will lead to absurdity! It is difficult to agree with this kind of propositions. This order of the CIC, not to consider MP or MLA as 'public authority' under RTI Act, is per incuriam - illegal, unconstitutional and totally against the democratic norms of transparency of elected representatives and accountability of political parties. (A finding of per incuriam means that a previous court judgment has failed to pay attention to relevant statutory provision or precedents.) Section 2(h) of RTI Act & Parliamentary Party
51. The MP should at least be answerable on Rs 3825 crore of MPLADS funds. It is minimum accountability expected from elected representative of people. In this case MP belonged to BJP party. As a member of BJP Parliamentary Board which is ruling the nation now, he has a duty to share the information held only by him as far as MPLADS is concerned, through Parliamentary Board. In this context we need to examine the accountability of Parliamentary Party of ruling BJP as public authority. As matter of law, the Parliamentary Board/Party of all original Political Parties, should have acted as public authorities, honouring their- own transparency commitment, by disclosing the 17 categories of information envisaged under Section 4(1)(b) and have designated ideally, a CPIO to answer the questions from the voters/citizens like this applicant. As the Parliamentary Party of the ruling party BJP with majority members is at the helm of Union Government, like the original political party BJP, its Parliamentary Party, it also should have to be accountable as the public authority under section 2(h) of the RTI Act, which says:
Section 2(h) of RTI Act: Definitions--In this Act, unless the context otherwise requires,-- (h) "public authority" means any authority or body or institution of self-government established or constituted,--
(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
(d) by notification issued or order made by the appropriate Government, and includes any--
(i) body owned, controlled or substantially financed;
(ii) non-Government Organisation substantially financed, directly or indirectly by funds provided by the appropriate Government;
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52. The Parliamentary Party of Original Political Party having majority of elected representatives in the House is constitutionally recognized under Tenth Schedule [Provisions As To Disqualification On The Ground Of Defection] under Article 102(2) of the Constitution of India. Parliamentary Parties of BJP and Congress are recognized as 'legislature party' under Paragraph 1(b) of Tenth Schedule of the Constitution, while the party from which legislators are elected is recognized as 'original political party' in relation to the members of the House under Paragraph 1(c). Paragraph 2 [Disqualification on ground of defection] says: "...a member of House will be disqualified if he has voluntarily given up his membership of such political party, or if he votes or abstains contrary to direction given by Political Party..." There are several such provisions which mandate disqualification in the context of members vis-a-vis their relationship with original political party, as prescribed. Article 74 (1) says 'there shall be a Council of Ministers with the Prime Minister at the head to aid and advice the President who shall, in exercise of his functions, act in accordance with such advice'. Article 75 says: '(1) The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister'. Prime Minister is the leader of the House. As per the Constitution, the elected MPs belonging to a political Party having secured majority seats in Lok Sabha will form the Executive Government, those MPs constitute a Parliamentary Party. Main opposition party, which has highest number of seats next to ruling party, also will be enjoying constitutional status and minister rank as leader of opposition. Similarly all other Parliamentary Parties of the 'original parties' having multiple members in Parliament, are totally financed by the Government. The secretariat of Lok Sabha or Rajya Sabha, which gave them room, phone and secretarial assistance, shall have to facilitate the Legislature (Parliamentary) parties to disclose information sought.
Besides, each MP has a moral duty to inform people in general on their own, about the developmental activities under MPLADs in particular recommended by him in their constituency. The MP, as an individual making promises to his voters in the Constituency, is a constitutional office holder. The Parliamentary Party, unlike individual MP, is a body, group of persons who individually have authority to elect a Prime Minister and collectively to form or dislodge a Government, pass laws that would alter the rights and duties of the people. The people elected them trusting their manifesto, promises of candidates and details provided by them in affidavits about their economic, educational and criminal background.
CIC/MOSPI/A/2017/195498 Page 45 After getting elected, each MP of ruling party has a governmental and Constitutional duty to answer the people. Apart from all the above mentioned reasons, the Parliamentary party of ruling political party, i.e., BJP, which has 282 members in Lok Sabha, (besides substantial representation in Rajya Sabha), while each Lok Sabha member gets Rs 5 Crore per year, for five years for developmental works in their respective constituencies, which comes to Rs 1410 crore per annum and Rs 7050 thousand crore per five years. (Similarly Rajya Sabha members also will get Rs 30 crore each). Similarly the Congress Party, and its Parliamentary Party with 44 members in Lok Sabha will get quota of Rs 220 cr. for development works and Rs 1100 Crore per five years, in addition to Rs 30 cr. each for their Rajya Sabha members. On the same lines other Parliamentary Parties also will get proportionate Quota of Funds under MPLADS. Hence, each Parliamentary Party of Original Political Parties with multiple members in Parliament shall be a public authority as per the clauses of Section 2(h) of RTI Act- falling under category of authority or body or institution established or constituted,--
(a) by or under the Constitution;
(b) by any other law made by Parliament;
...includes any--
(i) body owned, controlled or substantially financed;
(ii) non-Government Organisation substantially financed, directly or indirectly by funds provided by the appropriate Government;
53. Parliamentary Party is a body constituted by Constitution; each MP comes into existence as per procedure prescribed by law made by Parliament, Representation of People Act. If for any reason, they disagree on this point, and argue that they are Non-Governmental Organization but governing the country by virtue of people's votes, each MP and their Parliamentary Party is totally controlled by the executive government, besides being substantially financed. None can doubt the fact that they are totally financed by the Union of India.
54. The office of the Speaker occupies a pivotal position in our parliamentary democracy. It has been said of the office of the Speaker that while the members of Parliament represent the individual constituencies, the Speaker represents the full authority of the House itself. She symbolises the dignity and power of the House over which she is presiding. Therefore, it is expected that the holder of this office of high dignity has to be one who can represent the House in all its CIC/MOSPI/A/2017/195498 Page 46 manifestations. ...The office of the Speaker in India is a living and dynamic institution which deals with the actual needs and problems of Parliament in the performance of its functions. The Speaker is the constitutional and ceremonial head of the House. She is the principal spokesperson of the House. It is in her that the responsibility of conducting the business of the House in a manner befitting the place of the institution in a representative democracy is invested. (See https://speakerloksabha.nic.in/roleofthespeaker.asp#adm) In the discharge of his/her Constitutional and statutory responsibilities, the Speaker, Lok Sabha is assisted by the Secretary-General, Lok Sabha.
55. The Vice-President of India is ex officio Chairman of Rajya Sabha. He is the channel of communication between the House and any other outside person or authority. He has to decide under constitutional provisions whether a member of Rajya Sabha has tendered his resignation voluntarily. He has also to decide under the constitutional provisions, question of disqualification on grounds of defection. Under the Rules of Procedure and Conduct of Business in Rajya Sabha, the Chairman admits notices of Questions, Motions, Resolutions, etc. Rajya Sabha has a Secretariat of its own headed by the Secretary-General, who is a permanent official working under the overall control of the Chairman of Rajya Sabha.
56. The recommendations of the Special Lok Sabha Committee after sting operation, suggestions by various committees referred above and constructive findings of Sri A Surya Prakash's Book should have been considered by the appropriate Constitutional office holders in the Parliament and introduced necessary transparency systems. Let us have a look at the huge quantum of money allocated under this head. There are 545 MPs in Lok Sabha and 245 in Rajya Sabha. 790 x Rs 5 Cr per year = Rs 3950 cr. This scheme (is it a scheme or program or distribution of money?) has spread, like a viral, to almost all State Legislative Assemblies and Union Territories. The states went on increasing the fund year after the year. For instance, the official website of Delhi Government in its guidelines says: "The scheme was started in the year 1994-95 when the fund under the scheme was Rs.1.00 crore per MLA per year. After gaining some experience the Govt. decided to revise the scheme & increase the fund to Rs.1.40 crore per MLA per year w.e.f. 1999-2000". From the financial year CIC/MOSPI/A/2017/195498 Page 47 2000-01 the limit of Rs.1.40 crore has been raised to Rs.1.90 crore per MLA. And from 2004-05, the limit has been further increased to Rs.2.00 crore and w.e.f 2011-12 the limit has been further increased to Rs. 4 crore. Under this scheme of "Strengthening and Augmentation of Infrastructure facilities in each Assembly Constituency", commonly known as MLALAD's each MLA can suggest small works of capital nature to be done in their constituencies' up to the tune of Rs.4.00 crore in a year with each individual project not exceeding Rs.2 crore". (http://delhi.gov.in/wps/wcm/connect/a61120004ea387f2b5c3f78cde80066d/ml alad%2Bguidelines.html?MOD=AJPERES&lmod=228286823). Bihar cabinet in 2010 December resolved to scrap the MLALADS on the ground of corruption. Speaking to the media about the decision taken in the two-hour long meeting, State Cabinet and Coordination Department's Principal Secretary Afzal Amanullah said the cabinet decided in principle to scrap allocation of LAD funds for MLAs and MLCs, he said: "The next cabinet meeting scheduled to take place on December 14 will discuss an alternative scheme. The decision was taken in the light of charges of corruption being raised from several quarters," said Amanullah". (http://archive.indianexpress.com/news/nitish-govt-to-scrap-fund- allocation-for-mlas-mlcs/723368/) But within three years, the fund allocated for MLAs is doubled (from Rs 1 crore). A news report says: "Sulking over the scrapping of their local area development fund by Chief Minister Nitish Kumar more than two years ago, the legislators in Bihar have something to cheer about now. They can recommend development works worth Rs 2 crore every year in their respective constituencies from now onwards under the existing Chief Minister Area Development Scheme (CMADS). Besides, they will head a monitoring committee at the sub-divisional level to oversee the progress of the schemes". (https://www.indiatoday.in/india/east/story/nitish-kumar- doubles-fund-for-bihar-lawmakers-bihar-chief-minister-157788-2013-04-04). Similarly Jammu & Kashmir doubled it from Rs 1.5 cr to 3 cr per year in 2017. Different states are offering crore every year to MLAs: Andhra Pradesh, Assam, Mizoram, Odisha Rs 1 crore each; Puducherry 1.25 cr; Gujarat-1.5; Madhya Pradesh, Bihar, Karnataka, Maharasthra, Manipur, Meghalaya, Uttar Pradesh, Rajasthan- Rs 2 cr each; Arunchal Pradesh, Uttarakhand & Tamil Nadu Rs 2.5 cr each; Jammu & Kashmir and Talangana-Rs 3 cr each; Delhi & Jharkhand-Rs 4 Cr each; and Kerala-Rs 5 Cr. Seven states out of 29 have legislative councils; AP- 58, Bihar-75, J & K 36, Karnataka 75, Maharasthra -78, Telangana-40 and UP- 100 in all 462 MLCs in seven states. (Delhi State Cabinet has decided to increase CIC/MOSPI/A/2017/195498 Page 48 the fund from 4 cr to 10 cr per annum, i.e., Rs 50 cr per MLA for five year term, https://www.dailypioneer.com/2018/page1/delhi-govt-plans-to-hikemla-lad- fund-to-rs-10-cr.html). (Note: Information of MLALADS quota per annum from at least 14 states/UTs could not be accessed) Number of MLAs we have in all states is 4120. Total strength of MLAs and MLCs is 4120+462= 4582 x average of Rs 2 cr per annum that could be spend on local area development comes to Rs 9164 Cr. If this is added to Rs 5 cr each allotted x 790 MPs (545 LS + 245 RS) = Rs 3850 Cr. Grand total Rs 3850 + Rs 9164 = Rs 13014 Cr is being spent on this scheme every year from public exchequer. The major lacunae of the MPLADS are that though it is a massive scheme with Rs 13014 Cr per annum (in five years Rs 65070), but without any legal basis, transparency, accountability, answerability and liability besides have no sound policy behind. Most risk factor is MPs and MLAs enjoy unreasonably high immunity and power. The recommendation for works up to Rs 5 cr per annum (for MP) and Rs 2 cr (average per MLA) is totally dependent on the personal discretion of the elected legislator, who has unquestioned privilege. This is a very fertile ground for corruption which puts an existing legislator in a very high advantage in terms of money in competition with aspiring candidates, which is totally against the principles of rule of law and equality. There are neither proper rules nor regulations, because there is no law. There are only guidelines, which could be easily changed by Executive and flouted by MPs without any consequence. The procedure prescribed for works is reverse in this scheme. In all other programs/schemes a work has to be proposed, viability need to be examined and then funds will be allocated or released. But in MPLADS, first funds are allocated, then works are recommended, thereafter district administration has to implement it if viable. Because of this reversing of process, the need for securing the funds increased. The Parliament of India, basically has been conceived as most transparent constitutional institution. Though there is a rule providing for secret sittings when national security is threatened, there was no secret sitting of the Parliament so far, which means every sitting was open to public. The standing committee of Parliament on different subjects have proved how effective they are. The Parliament is also known for enforcing strict financial discipline. Not even a single rupee could be spent without prior sanction by the House, which also should be based on strict rules and regulations. But MPLADS that was launched in 1993 allows sanction of Rs five crore per annum without prior study of viability of work and before it was recommended. There are no CIC/MOSPI/A/2017/195498 Page 49 strict provisions to make it transparent. It is totally discretionary based massive funded scheme prone to high corruption leaving no scope to scrutiny at appropriate stages. Besides unquestionable discretion under MPLADS, the MPs are accorded high privileges. They have power of fixing or increasing their own salaries and allowances by making law without any pre-enactment obligations to conduct survey and fix appropriate scales. It is difficult to prevent corruption in such a non-transparent massive funding scheme, without legal basis, totally dependent upon individual discretion with unquestionable privileges coupled with immunity of MPs. Because of existing transparency principles, every word uttered in Parliament is recorded and kept in public domain. Live telecasting of entire proceedings made it further open to people; and by introducing the Information Communication technology supported transparency systems would enhance the prestige of Parliament further. When Honourable MPs are caught on camera negotiating a bribe or another respectful member of Elders House flee from the country, the dignity of the people's House will suffer, and everybody occupying a seat in power has a moral and legal duty to bring back the dignity of the House through transparency. It is sad that law makers of the nation did not make law for their own MPLADS.
Directions & Recommendations
57. The Commission directs the CPIOs of the Offices of Secretary General Lok Sabha and Rajya Sabha to place this CIC order on MPLADS before the Honourable Speaker Lok Sabha and Honourable Chairman Rajya Sabha, to facilitate appropriate action. The Commission humbly recommends these two personalities holding high positions in the most important Constitutional Estate:
the Central Legislature (Parliament) to consider:
a) To provide necessary LEGAL FRAME for the MPLADS, with specific duties and compulsory transparency obligations, definitions of breach of duties, prescribing rules and regulations, besides imposing liabilities for dereliction of those duties and breach of rules and regulations; which may include prohibition of certain acts such as:
i. assets claimed to have been created under MPLADS not traceable, ii. spending MPLADS funds for private works of MP, iii. recommending funds to ineligible agencies, CIC/MOSPI/A/2017/195498 Page 50 iv. diversion funds to private trusts, v. works recommended under MPLADS benefits the MP or his relatives, vi. breach of any norms laid down for recommending works.
b) this legal frame may also ideally list out the obligations of MPs such as:
i. duty to inform every year, number of applications received, works recommended, works rejected with reasons, progress of works, details of beneficiaries, and a comprehensive report on MPLADS works after completion of term by MP, to Chairman of Rajya Sabha or Speaker of Lok Sabha, respectively, and to office of Parliament; ii. duty to inform the voters seeking such details through RTI Act and generally;
iii. duty of Parliamentary Party to post the details on their pages in official websites and on webpages of MP such as https://www.india.gov.in/my-government/indian-parliament/;
c) To ensure compliance of transparency obligations by the Parliamentary Parties of various Original Political Parties, having presence of multiple members in Parliament, under Section 2(h) of RTI Act, and direct the office machinery of Parliament to provide necessary secretarial assistance to fulfill their obligations under RTI Act;
d) To direct the office machinery in coordination with National Informatics Center to incorporate in each page of MP on their official website (https://www.india.gov.in/my-government/indian-parliament/) a software provision to upload an application for recommendation of works under MPLADS; which could be either recommended; or rejected with reasons in a time bound manner, online; and on recommendation of such work, its progress from time to time shall be reported on the same page; and detailed final report with all beneficiaries and assets created be filed on completion of the work; and more importantly; such a page shall be accessible to common-man, officers concerned and the Parliament. This will enhance the dignity of already transparent institute- the Parliament, and prevent corruption in MPLADS as apprehended by various committees as mentioned above, besides saving thousands of crores of rupees of public money every year;
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e) To take necessary initiative to develop code of conduct as has been rightly recommended by Honourable Chairman Rajya Sabha and Vice President of India, in his wisdom to cover ethics on MPLADS.
58. The Commission recommends the Ministry of Parliamentary Affairs to render necessary assistance to Honourble Chairman of Rajya Sabha and Honourble Speaker to develop legal frame for MPLADS as mentioned above and to make all Parliamentary Parties and MPs answerable and accountable for MPLADS funds as public authorities under RTI Act to prevent MPLADS irregularities.
59. The data related to the cumulative expenditure of MPLADS funds for the period 2014-2019 for constituency Hathras during the tenure of Mr. Rajesh Kumar Diwakar as Member of Parliament available at https://www.mplads.gov.in/MPLADS/UploadedFiles/HTML/16ls/lsstat24.htm is:
Entitlement Fund Amo Cumulative Cumulative Expenditure %of Unspent of Released unt amount amount Incurred Utilis Balance Constituency by G.O.I. with recommen Sanctioned by the District ation with MP's (Rs.Crore) (Rs.Crore) Distri ded by by the Authority Over District Name ct MP for District (Rs.Crore) Rele Authority and Auth MPLADS Authority ased (Rs.Crore) Constituen ority works (Rs.Crore) Sl.No. cy (0) (1) (2) (3) (4) (5) (6) (7) (8) (9) 40 Rajesh Kumar 25.0 17.50 18.22 17.38 17.31 14.10 80.55 4.12 Diwaker 0 HATHRAS (SC)
60. The figures speak for themselves. Out of entitlement of Rs 25 crore, the Honourable MP Rajesh Kumar Diwaker (Hathras) has recommended works to the tune of Rs 17.38 crore. 80.5 per cent of released amount is spent and balance unspent is Rs 4.12 crore. People of his constituency, including this appellant, have every right to know progress of these works, payments made, reasons for not spending amount etc. The Commission hopes that Honourable MP Shri Rajesh Diwakar, MP will understand his duty and honour the commitment made by his party BJP to transparency, and publish the MPLADS works details on his page in https://www.india.gov.in/my-government/indian-parliament/rajesh- kumar-diwakar, regularly update the same, explain the figures given above, in discharge of his obligation towards the people of Hathras constituency. It is legitimately expected from the Parliamentary Board of BJP to take steps to make CIC/MOSPI/A/2017/195498 Page 52 all their MPs, especially this MP in this case, accountable and answerable to provide such information.
61. The Commission directs Mr. Rakesh Kumar, Secretary (PG) and CPIO, Railways Department to collect information related to works recommended under MPLADS by Shri Rajesh Kumar Diwakar MP for the season 2016-17, details of Implementing Agencies and MPLADS fund utilization on point number 3 of RTI Application and provide the same to the appellant within 30 days from the receipt of this order.
62. The State Governments and their nodal district authorities are under the jurisdiction of the State Information Commissions; hence, apparently the Central Information Commission has no authority to direct them on these issues. But the information sought by the appellant is related to MPLADS work for which respondent MoSPI from centre has released funds, and such information is supposed to be disclosed by the authorities on their own as per Section 4(1)(b) of RTI Act. Non-compliance of Section 4 obligations will amount to a serious dereliction of RTI Act. Under Section 19(8) the Commission require to make certain changes in transparency disclosures and furnishing certain categories of information for RTI requests. To that extent the concerned district authorities, are accountable to the MoSPI, the funds-releasing agency on submission of utilization certificates, and thus, is under an obligation to submit details explaining how such fund was properly spent. As the appellant sought such information from public authority MoSPI under RTI, they have a duty to assist it by furnishing those details to share with appellant. According to S. 19(8)(a)(iii), the Commission requires the District Administration to furnish such information work-wise, MP-wise, year wise progress of works regularly to the MoSP, concerned MP, his Parliamentary Party, and also office of the Parliament.
63. The Director MR, and DD (PG) & APIO (Coord), Ministry of Railways, are liable for denying the information, for this kind of reply without typing the name of the officer, for drafting in English in response to a Hindi application and using abbreviations without expansion, which amount to deliberate denial of information. The Commission records its admonition for such dereliction of duty.
64. The Commission recommend all the Parliamentary Parties or any of their representatives to submit, if they desire, their written contentions, if they CIC/MOSPI/A/2017/195498 Page 53 believe that their Parliamentary Board/Party is not public authority under RTI Act, to justify the same before 9th October, 2018.
65. The Commission require under Section 19(8)(a)(iii) of RTI Act, the public authority (Ministry of Statistics and Program Implementation) to make necessary changes to publish MP-wise, Constituency wise and work-wise details, with names of beneficiaries, and reasons for delay, if any, after duly procuring from the concerned district administration and ensure its voluntary disclosure under Section 4. The Case is posted for compliance by Ministry of Railways, Ministry of Statistics and Program Implementation, to 9 October 2018 at 2.30 pm. SD/-
(M. Sridhar Acharyulu)
Central Information Commissioner
CIC/MOSPI/A/2017/195498 Page 54