The Union government’s Cabinet Committee on Security recently gave clearance to the Home Ministry’s NATGRID project. The project aims to allow investigation and law enforcement agencies to access real-time information from data stored with agencies such as the Income Tax Department, banks, insurance companies, Indian Railways, credit card transactions, and more. NATGRID, like a number of other government initiatives (UIDAI), is being established through governmental notifications rather than legislation passed in Parliament. The examination of this issue requires an assessment of the benefits of legislation vis-a-vis government notifications. Government notifications can be issued either under a specific law, or independent of a parent law, provided that the department issuing such notification has the power to do so. Rules, regulations which are notified have the advantage of flexibility since they can be changed without seeking Parliamentary approval. This advantage of initiating projects or establishing institutions through government notifications is also potentially of detriment to the system of checks and balances that a democracy rests on. For, while legislation takes a longer time to be enacted (it is discussed, modified and debated in Parliament before being put to vote), this also enables elected representatives to oversee various dimensions of such projects. In the case of NATGRID, the process would provide Parliamentarians the opportunity to debate the conditions under which private individual information can be accessed, what information may be accessed, and for what purpose. This time consuming process is in fact of valuable import to projects such as NATGRID which have a potential impact on fundamental rights. Finally, because changing a law is itself a rigorous process, the conditions imposed on the access to personal information attain a degree of finality and cannot be ignored or deviated from. Government rules and regulations on the other hand, can be changed by the concerned department as and when it deems necessary. Though even governmental action can be challenged if it infringes fundamental rights, well-defined limits within laws passed by Parliament can help provide a comprehensive set of rules which would prevent their infringement in the first place. The Parliamentary deliberative process in framing a law is thus even more important than the law itself. This is especially so in cases of government initiatives affecting justiciable rights. This deliberative process, or the potential scrutiny of government drafted legislation on the floor of Parliament ensures that limitations on government discretion are clearly laid down, and remedies to unauthorised acts are set in stone. This also ensures that the authority seeking to implement the project is The other issue pertains to the legal validity of the project itself. Presently, certain departmental agencies maintain databases of personal information which helps them provide essential services, or maintain law and order. The authority to maintain such databases flows from the laws which define their functions and obligations. So the power of maintaining legal databases is implicit because of the nature of functions these agencies perform. However, there is no implicit or explicit authorization to the convergence of these independent databases. One may argue that the government is not legally prevented from interlinking databases. However, the absence of a legal challenge to the creation of NATGRID does not take away from the importance of establishing such a body through constitutionally established deliberative processes. Therefore, the question to be asked is not whether NATGRID is legally or constitutionally valid, but whether it is important for Parliament to oversee the establishment of NATGRID. In October 2010, the Ministry of Personnel circulated an “Approach paper for a legislation on privacy”. The paper states: “Data protection can only be ensured under a formal legal system that prescribes the rights of the individuals and the remedies available against the organization that breaches these rights. It is imperative, if the aim is to create a regime where data is protected in this country, that a clear legislation is drafted that spells out the nature of the rights available to individuals and the consequences that an organization will suffer if it breaches these rights.” As the lines above exemplify, it is important for a robust democracy to codify rights and remedies when such rights may be potentially affected. The European Union and the USA, along with a host of other countries have comprehensive privacy laws, which also lay down conditions for access to databases, and the limitations of such use. The UIDAI was established as an executive authority, and still functions without statutory mandate. However, a Bill seeking to establish the body statutorily has been introduced, and its contents are being debated in the Parliamentary Standing Committee on Finance and the Bill has also been deliberated on by civil society at large. A similar approach is imperative in the case of NATGRID to uphold the sovereign electorate’s right to oversee institutions that may affect it in the future.
The issue of judges declaring their assets assumes importance in light of recent allegations and inquiries into allegations of wrongdoing by judges (read our post on the report of the Committee set up to examine allegations of wrongdoing by Justice Soumitra Sen of the Calcutta High Court). The Delhi High Court also gave a judgement recently, requiring judges of the Supreme Court to declare their assets. The Bill on judicial accountability (read summary here) requires judges to declare their assets to a specified authority within 30 days of them taking their oath of office. The assets of spouses and dependents is also required to be disclosed. The Bill also states that the assets declared will be put up on the website of the relevant court.
The Public Accounts Committee examines how the Government spends public money. It examines the amount granted by the Parliament and the amount actually spent. A Speaker in the past, has passed a direction which specifies clearly that a Minister cannot be summoned by the Financial Committees. This has been incorporated in a document titled "Directions by the Speaker" available here. The actual text of the direction reads - "99. (1) The Committee on Estimates or the Committee on Public Accounts or the Committee on Public Undertakings may call officials to give evidence in connection with the examination of the estimates and accounts, respectively, relating to a particular Ministry or Undertaking. But a Minister shall not be called before the Committee either to give evidence or for consultation in connection with the examination of estimates or accounts by the Committee." -Co-authored by Chakshu
During the recess, the Departmentally Related Standing Committees of Parliament examine the Demand for Grants submitted by various Ministries. The Demand for Grants are detailed explanations of that Ministry's annual budget which form part of the total budget of the government. These are examined in detail, and the committees can approve of the demands, or suggest changes. The Demand for Grants are finally discussed and voted on by the Parliament after the recess. (The post below lists the ministries whose Demand for Grants will be discussed in detail after the recess). The issue is - how effective is the institution of Parliament in examining the budget? Though India specific information on this subject is hard to find, K. Barraclough and B. Dorotinsky have cited the World Bank - OECD Budget procedures Database to formulate a table on the legislature approving the budget presented by the executive ("The Role of the Legislature in the Budget Process: A Comparative Review", Legislative Oversight and Budgeting). I reproduce the table below:
|In Practice, does the legislature generally approve the budget as presented by the Executive? (in percent)|
|Answer||All Countries||OECD Countries||Presidential democracies||Parliamentary democracies|
|It generally approves the budget with no changes||34||33||14||41|
|Minor changes are made (affecting less than 3% of total spending)||63||67||71||59|
|Major changes are made (affecting more than 3% but less than 20% of total spending)||2||0||7||0|
|The budget approved is significantly different (affecting more than 20% of total spending)||0||0||0||0|
|Sources: K. Barraclough and B. Dorotinsky; PRS.|
The presentation of the Annual Budget before the parliament is one of the mechanisms available to any legislature to scrutinise and authorise revenues and expenditures of the country. In this post I quote and summarise from two sources (Rick Stapenhurst, "The legislature and the Budget", in Legislative Oversight and Budgeting, World Bank Institute Development Studies, and The evolution of parliament’s power of the purse) which describe briefly how oversight by the legislature over the state's finances evolved historically. "The evolution of legislative "power of the purse" dates back to medieval times, when knights and burgesses in England were summoned to confirm the assent of local communities to the raising of additional taxes." By the 1300s the English parliament had begun to use its power to vote on funds depending on the acceptance of petitions presented by parliament to the monarch. In 1341, the monarch agreed that citizens should not be taxed ("charged or grieved to make common aid or sustain charge") without the assent of Parliament. "In parallel, the English Parliament began to take an interest in how money was collected, as well as how it was spent." In the 1300's itself, it started appointing commissioners to audit the accounts of tax collectors. This power of oversight however evolved gradually, and particularly over the 16th century, when the "monarchs needed parliamentary support and voting of funds for their various political and religious battles. King Henry VIII for example, gave Parliament enhanced status in policy making, in return for support during his battles with Rome." The 1689 Bill of Rights firmly established "the principle that only Parliament could authorize taxation. Still, at this stage there was still no such thing as an annual budget, and there was no comprehensive control of expenditures." The British Parliament also passed a resolution in 1713 to limit Parliament's power to "not vote sums in excess of the Government’s estimates. Consequently, the only amendments that are in order are those which aim to reduce the sums requested." "Since that time, the "power of the purse" function has been performed by legislatures around the world as a means to expand their democratic leverage on behalf of citizens."