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Strong mechanism is required to regulate NGOs : Supreme Court

Non Governmental Organisations (NGOs) are now working without any regulation and doing what they want. Even many NGOs are doing unfair practices. The Supreme Court bench led by CJI Thakur appointed senior advocate Rakesh Dwivedi and sought his views on how to fasten accountability on the NGOs when they are funded from the public exchequer.

Favouring a strong regime to regulate NGOs, the Supreme Court suggested that the Law Commission may look into the matter and make suitable recommendations to fill in the lacuna in legal provisions. A bench led by Chief Justice of India T S Thakur appointed senior advocate Rakesh Dwivedi as amicus curiae and sought his views on how to fasten accountability on the NGOs when they are funded from the public exchequer.

“They are getting money from all over the world… what is an NGO? Anyone can register a society and it becomes an NGO. There is no central legislation to ensure accountability… no legal brainwork done at the central level to control them. Unless some mechanism is put in place centrally, nothing can be done,” observed the bench.

It regretted that out of around 31 lakh NGOs, less than 10 per cent submitted details of their accounts with the registrar of societies and said that absence of a central law could be the reason for lack of regulatory regime. It asked PIL petitioner-advocate M L Sharma to hand over a copy of the petition and other relevant documents to Dwivedi, and added that if necessary, the court might refer the matter to the Law Commission for an in-depth study.

The first-ever exercise by the CBI to map registered NGOs had disclosed that India has at least 31 lakh NGOs — more than double the number of schools in the country, 250 times the number of government hospitals, one NGO for 400 people as against one policeman for 709 people. These statistics, indicating the relative status of education and healthcare infrastructure apart from policing, have come to light after the CBI collated information from all states and Union Territories to list NGOs registered under the Societies Registration Act.

The CBI was directed by the court to collect information about NGOs and inform whether these NGOs have filed balance sheets, including income-expenditure statements, to ascertain compliance with accountability norms.
(Source: http://indianexpress.com)

NGO organisers and relatives have to file assets and liabilities under the Lokpal Act

The implications of falling under the ambit of the Lokpal Act have discomfited many non-governmental organisations.
Two years after the Lokpal and Lokayuktas Bill, 2013 was enacted by the UPA government, the Centre’s decision to operationalise a couple of provisions has set off alarm bells among a large section of the NGO sector.

Three notifications from the Department of Personnel dated June 20, 2016, and an official memo on June 24, laid down the procedures and timelines for filing returns of public servants, the definition of which in the Lokpal and Lokayukta Act includes office bearers of NGOs.

Section 14 (1) of the Act includes directors, managers, secretaries and other officers of societies, trusts and associations of persons that receive more than Rs 10 lakhs under the Foreign Contribution Regulation Act (FCRA) under its ambit. It does the same in the case the organisations wholly or partly funded by the Central government if they receive an annual grant above a limit that may be fixed by it. (This has been set at Rs 1 crore.)

July 31 deadline
Earlier, Central government employees had been asked to file their assets and liabilities under the Lokpal Act. But what the June 20 notifications did was extend this to those working in NGOs and set the deadline for submissions of their returns to a designated authority by July 31.

Ironically, the Lokpal Act’s definition of senior employees of NGOs as ‘public servants’, thereby bringing them under the Lokpal and making them prosecutable under the Prevention of Corruption Act, 1988 (PCA), went through Parliament without a murmur. These were inserted at the insistence of civil society activists such as Arvind Kejriwal, now Delhi’s Chief Minister, who were campaigning for the legislations.

“As the Act was passed in Parliament and defines those who work in NGOs as public servants, the rules are the same and they are expected to follow it,” said K.S. Dhatwalia, spokesperson for the Home and Personnel ministries.

Specific target
But the notification which makes it mandatory for senior staff of NGO’s to provide details of cash, bank balances, immovable properties and loans of themselves, their spouses and dependent children has caused a deep discomfort within a section of the NGOs.

Refusing to buy the Centre’s argument that it is merely implementing what is prescribed already in the Act, there are some who believe that this is a part of the Centre’s strategy to target NGOs. The Home Ministry’s cancellation of the registration of 10,020 associations for violation of the FCRA is cited as evidence of this.

Says Aakar Patel, executive director of Amnesty India: “The present notification needs to be seen in the context of the actions of the government over the last two years, which has combined targeting of specific human rights NGOs and wholesale cancellations of FCRA registrations.”

Uniformly applicable
Privately, some members of NGOs admit they were blinkered in failing to notice the implication of being declared public servants under the Lokpal Act. Moreover, that it is also somewhat self-serving to continue to demand that disclosures be made by bureaucrats while seeking exemptions for themselves.

But what triggered the June notifications? According to official home ministry sources, it was the large amount of funds sent from foreign donors to Christian missionaries and Islamic organisations. On March 28, the Ministry of Home Affairs (MHA) put two foreign donors — U.S.- based Compassion International and South Korea’s Family Federation for World Peace and Unification — under the “watch-list” after adverse reports from security agencies. A senior government official said these two associations were sending money to NGOs in India who were involved in proselytisation.

The issue found an echo in the Rajya Sabha last week when nominated MP Anu Aga pointed out that while “NGOs and charitable institutions work for the public, they are voluntary and regulated by several laws including the Charity Commissioner and the Registrar of Societies and Income Tax and FCRA. Trustees of these NGOs are not public servants because they give their time and some also give their financial support on a voluntary basis.”

Senior Congress leader Digvijaya Singh, NCP leader Sharad Pawar wanted the Centre to have a relook at the provisions of the Act.

Several NGO representatives have petitioned senior officials in the Prime Ministers Office (PMO) asking for a respite from the order. The Centre is considering withdrawing the notification and making amendments to the Lokpal Act.

(News source: Vijaita Singh and G. Sampath : The Hindu)

Now NGO members’ record is mandatory to declare to get Government Funds

The Central Government has made a number of things mandatory in order to regulate corruption and misuse of NGOs, particularly in their financial matters. It was already mandatory to obtain Unique Identification numbers and have them registered on the portal of NITI Aayog. Now, in an effort to improve transparency and to keep a check on transactions involving misuse and corruption, the details of PAN and Aadhaar numbers of all the position holders and trustees of the organisation must be registered as well. Failing to do so would render them unable to apply for funding from any ministry of the government.

The NITI Aayog came upon this decision on 9 May 2016. All ministries have been instructed to process applications for grants and assistance from NGOs solely through the NITI Aayog’s portal.
Furthermore, development of a system to assign unique identification numbers to all charitable trusts and societies was also decided in another meeting regarding this matter, along with the provisions of direct benefit transfers and enrollment of Aadhaar.
In accordance with the provisions of the Aadhaar Act, this is one of the steps to involve the use of Aadhaar in various schemes of the government. Inclusion of the Aadhaar provides the factor of an additional security as there is biometric data of the participants involved which can be used to identify the individuals.
Another notification to heed to in particular is a June 26 notification of the Centre. It states that, in accordance with the Lokpal and Lok Ayukta Act (2013), the members handling an NGO’s everyday operations will be treated as public servants if an NGO acquires government funding exceeding Rs. 1 carore. This limit is marked at Rs. 10 lakh per year in case of foreign funding.
The notification also says that trustees and office holders of the NGOs must declare their moveable and immovable properties, cash, personal assets and jewellery by July 31.
They are subject to rules and regulations for government officials under the Prevention of Corruption Act too.
While the notification and regulations are an effort to increase the accountability of the NGOs, the notification has also caused a little chaos and raised some fears as it is being interpreted as an attempt to increase the Centre’s control in these regards.
The motive behind these reforms is to ease the process of identifying, verifying and maintanance for the receivers as well as the donors.

Organ Donation and Transplantation Provides Second Life

Enhanced awareness needed to encourage people to donate organs
(Dr. H. R. Keshavamurthy)

Organ donation and transplantation provides a second chance at life for thousands of people each year. The growing disparity between the rich and poor, demand for human organs and availability of technology in the country makes the trading of organs a quick means to riches for some and a relief for others. Invariably Organ trade leads to exploitation of the poverty-stricken people by tempting them with financial gains to meet their immediate short-term financial needs.

Each year hundreds of Indians die while waiting for an organ transplant. The reason being there is acute imbalance between the number of organs donated and the number of people waiting for a transplant. While 2.1 lakh Indians require kidney transplantation annually, but only 3000 – 4000 kidney transplants are done. The situation is not very different in relation to heart transplants. While annually around 4,000–5,000 patients in India require a heart transplant, so far only 100 heart transplants have been conducted across the country. According to the National Programme for Control of Blindness (NPCB) 2012-13 report, only 4,417 corneas were available in 2012-13 against a whopping requirement of 80,000-1, 00,000 per year.  There are currently over 120 transplant centres   in India performing approximately 3,500 to 4,000 kidney transplants annually. Out of these four centres undertake approximately 150 to 200 liver transplants annually while some do an occasional heart transplant.

Finding a donor is the main issue in the country. Lack of awareness and improper infrastructure facilities are the main reasons behind the existing scenario. Administrative hurdles and conservative mindset further affect organ transplantation scenario in India.  There are a lot of myths associated with organ donation which needs to be addressed to solve this problem. Most Indians generally believe that it is against the nature and religion that body parts are mutilated. Some are suspicious that the hospital staff may not work hard to save their lives if they want organs. Others believe that there might be a temptation to declare them dead before they are actually dead. Lack of a centralized registry for organ donation acts as another major hurdle for the people to donate organs or get data about donors. Also, there is a problem of certifying brain deaths; if people are not aware of brain deaths; it becomes difficult to convince the relatives of the patients for organ donation.

Kidney transplants in India first started in the 1970s and since then India has been a leading country in this field on the Asian sub-continent. The evolutionary history of transplants in the last four decades has witnessed commerce in organ donation becoming an integral part of the program. The Government passed the Transplantation of Human Organ Act (THO) in 1994 which made unrelated transplants illegal and deceased donation a legal option with the acceptance of brain death. Overcoming organ shortage by tapping into the pool of brain-dead patients was expected to curb the unrelated transplant activity. But, despite the THO Act, neither has the commerce stopped nor have the number of deceased donors increased to take care of organ shortage. The concept of brain death has never been promoted or widely publicized. Most unrelated transplants currently are being done with the approval from an Authorization committee.

Government of India enacted the ‘Transplantation of Human Organs (Amendment) Act in 2011 which made provisions for simplifying the procedure for human organ donation. The provisions included retrieval centres and their registration for retrieval of organs from deceased donors, swap donation and a mandatory inquiry by the registered medical practitioner of a hospital in consultation with transplant coordinator (if available) from the near relative(s) of potential donor admitted in Intensive Care Unit and informing them about the option to donate and if they consent to donate, inform the retrieval centre for retrieval of organs.

In India, the potential for deceased donation is huge due to the high number of fatal road traffic accidents and this pool is yet to be tapped. At any given time, every major city would have 8 – 10 brain deaths in various ICUs. Some 4 – 6% of all hospital deaths are due to brain death. In India, road accidents account for around 1.4 lakh deaths annually. Out of these, almost 65% sustain severe head injuries as per a study carried out by AIIMS, Delhi.  This means there are almost 90,000 patients who may be brain dead.

It is not that people don’t want to donate, but that there are no mechanisms in hospitals to identify and certify brain deaths. Plus, no one empowers the relatives of a brain-dead person to save lives by donating his organs. Anyone from a child to an elderly person can be a donor. Organ donation from the brain dead – also referred to a cadaveric donation is still very low in India. While Spain has 35 organ donors per million people, Britain has 27 donors, US 26 and Australia 11, India’s count stands at a mere 0.16 per million people.

Donor Card

Signing a donor card is the first step in making your wishes about donation known. A donor card is not a legal document but an expression of one’s willingness to donate. While signing a donor card demonstrates one’s desire to donate organ after death, letting the family or friends know about the decision is very important. That is because family members will be asked to give consent for the donation. The decision will be considered final when they give consent. Vital organs such as heart, liver, lungs, kidneys, pancreas and intestines, and tissues such as corneas, heart valves, skin, bones, ligaments, tendons, veins, etc. can be donated in case of brain death.

THOT Rules

The recently notified Transplantation of Human Organs and Tissues Rules(THOT), 2014 has many provisions to remove the impediments to organ donation while curbing misuse/misinterpretation of the rules. To mention a few;

The medical practitioner who will be part of the organ transplantation team for carrying out transplantation operation shall not be a member of the Authorisation Committee constituted under the Act.

When the proposed donor or recipient or both are not Indian nationals or citizens whether near relatives or otherwise, the Authorisation Committee shall consider all such requests and the transplantation shall not be permitted if the recipient is a foreign national and donor is an Indian national unless they are near relatives.

When the proposed donor and the recipient are not near relatives, the Authorisation Committee shall evaluate that there is no commercial transaction between the recipient and the donor and that no payment has been made to the donor or promised to be made to the donor or any other person

Cases of swap donation referred to under subsection shall be approved by Authorisation Committee of hospital or district or State in which transplantation is proposed to be done and the donation of organs shall be permissible only from near relatives of the swap recipients.

When the recipient is in a critical condition in need of life saving organ transplantation within a week, the donor or recipient may approach hospital in-charge to expedite evaluation by the Authorisation Committee.

The quorum of the Authorisation Committee should be minimum four and is not complete without the participation of the Chairman, Secretary (Health) or nominee and Director of Health Services or nominee.

Every authorised transplantation centre must have its own website. The Authorisation Committee is required to take final decision within twenty four hours of holding the meeting for grant of permission or rejection for transplant and the decision of the Authorisation Committee should be displayed on the notice board of the hospital and the website within twenty four hours of taking the decision. The website of transplantation centre shall be linked to State/Regional/National Networks through online system for organ procurement, sharing and transplantation.

There would be an apex national networking organization at the centre. There would also be regional and State level networking organizations where large of number of transplantation of organ(s) or tissue (s) are performed. The State units would be linked to hospitals, Organ/Tissue matching Labs and Tissue Banks within their area and also to regional and national networking organisations. Such networks shall coordinate procurement, storage, transportation, matching, allocation and transplantation of organs/tissues and shall develop norms and standard operating procedures.

A National Registry on Donors and recipients of Human Organ and Tissue accessible on-line through dedicated website having National, Regional and State level specificities will come into force. National/Regional registry shall be compiled based on similar registries at State level. The identity of the people in the database shall not be in public domain.

NOTTO

National Organ and Tissue Transplant Organization (NOTTO) is a National level organization set up under Directorate General of Health Services, Ministry of Health and Family Welfare, Government of India located Safdarjung Hospital New Delhi. Website of NOTTO (National Organ and Tissue Transplant Organization) has been launched recently.

NATTO has following two divisions:
National Human Organ and Tissue Removal and Storage Network
This has been mandated as per the Transplantation of Human Organs (Amendment) Act 2011. The network will be established initially for Delhi and gradually expanded to include other States and Regions of the country. National Network division of NOTTO would function as apex centre for All India activities of coordination and networking for procurement and distribution of Organs and Tissues and registry of Organs and Tissues Donation and Transplantation in the country.

National Biomaterial Centre (National Tissue Bank)
The main thrust & objective of establishing the centre is to fill up the gap between ‘Demand’ and ‘Supply’ as well as ‘Quality Assurance’ in the availability of various tissues.

Making organs a commodity is fraught with erosion of social, moral, and ethical values and is not an alternative that can be acceptable to meet organ requirements in a civilized society. The World Health Organization (WHO) in its statement on the sale of organs clearly states that it violates the Universal Declaration of Human Rights as well as its own constitution: “The human body and its parts cannot be the subject of commercial transactions. Accordingly, giving or receiving payment… for organs should be prohibited.” Enhanced awareness among people is needed to encourage people to donate organs. This requires involvement of the civil society, religious leaders and other stakeholders in creating awareness.

RTI is a weapon for citizen facing arbitrary power, needs to be protected, taken further

Aruna Roy and Nikhil Dey
(Social activists and founder members of the NCPRI)

Today, India celebrates 10 years of the practice of the right to information. In this decade, this law, one critical to Indian democracy, has established the citizen’s right to make informed choices, not just once every five years, but every single day. Governments at the Central and state levels have been forced to concede to the democratic principle of sharing power. An estimated five to eight million applications are filed every year, making it clear how popular the law is. The more than 45 RTI users who have been killed bear testimony to just how much the act threatens vested interests. In posterity, those studying governance in independent India will be able to mark the patterns of a pre- and post-RTI era. It is, therefore, important to understand the immense contribution of the ordinary Indians who battled for years to get the entitlement and, since 2005, to implement the law.

Powerful and relevant local struggles can organically grow into national movements that enrich democratic practice. The demand for information was brilliant in its simplicity. People honed it locally on the nerve centers of unaccountable power. These demands for details of expenditures on roads, of life-saving medicines in hospitals, of disappearing rations, sent shockwaves through the establishment and shook the foundation of bureaucratic governance. The RTI has proved its efficacy from the panchayat to Parliament. Cutting through red tape and bureaucratic prevarication, it has exposed entrenched vested interests in policymaking and implementation, and undermined officials’ impunity in perpetuating both grand and mass corruption.

The modes of putting information to use in the public domain have been equally important. Jan sunwais evolved as a form of public accountability from a historic first hearing held in the village of Kotkirana in Pali district on December 2, 1994. The process of sharing information initially obtained through informal means and publicly verifying the evidence with local citizens galvanised people. The opposition grew in proportion, as when panchayat officials went on strike against transparency and public audits and elected representatives gave them support. It became clear that accessing information would need a sustained struggle and campaign.

The campaign built an effective and popular discourse on the right to information, using slogans and songs to articulate and communicate. The slogan “hamara paisa, hamara hisaab” powerfully asserted people’s ownership over public money and resources. The late Prabhash Joshi highlighted another slogan in his editorial in the Jansatta in 1996, “hum janenge, hum jiyenge (the right to know, the right to live)”. The RTI so defined was seen and used as a transformative right.

The straightforward logic of the struggle and campaign drew diverse groups into articulating the demand for a law. A 40-day dharna in Beawar in April 1996 led to the formation of the National Campaign for People’s Right to Information (NCPRI). Set up with the twin objectives of drafting the law and supporting the use of the RTI by citizens’ groups, it circulated the first draft with the support of the Press Council of India in 1996. State laws began to be enacted in 1997, and continued to be in force till the national law was passed in 2005.

The enactment of the RTI not only inspired a spate of other rights-based laws, but also embedded transparency and accountability within them. The structural design of social audits derived from public audits, or jan sunwais, is becoming a systemic part of democratic governance. Earlier this year, the Comptroller and Auditor General of India declared that social audits will be a part of the formal audit process. The mode of social audits is also spreading to other parts of the world.

The RTI has been India’s most powerful “weapon of the weak”, enabling citizens everywhere to question and hold to account the legislature, executive and judiciary.

They have exposed misdeeds by governments across the board, in the delivery of basic services, in land and mining, as well as grand corruption in arbitrary contracts, like in the allocations of 2G spectrum and coal blocks.

With the current attack on rights-based laws and that framework, there are difficult times ahead. The few instances of obvious “misuse” by blackmailers and eccentrics have been blown out of proportion in an attempt to discredit the RTI. Governments have excelled in delays and manipulations in appointing information commissioners. The consensual (informal) decision by all political parties to ignore the orders of the information commission mandating their inclusion under the RTI has exposed the degree to which the establishment can go to brazenly undermine the rule of law.

At one level, there is a sense of wonder that the law was enacted at all, defying prophecies that a corrupt system would never allow self-exposure. The truth is that the RTI did manage to build some statesmanship, and a consensus outside and in Parliament. Notwithstanding the implementation roadblocks, it is internationally acclaimed as amongst the strongest RTI laws in the world.

The end of the first decade sees the RTI movement poised to fight battles for accountability — the passage and implementation of the grievance redress, whistleblowers’ protection and Lokpal legislation. The unfulfilled potential of people’s participation in the pre-legislative consultative process awaits parliamentary sanction. The unfinished promise of proactive disclosure under Section 4 of the RTI Act,
the pendency in the commissions, the ever-looming threat of amendments, must keep the campaign alert to attacks to dilute the impact of the law.

“RTI laga denge (we will file an RTI application)” has become one of the most popular refrains of the frustrated Indian facing the arbitrary exercise of power. In fact, it needs to be taken further. Much eventually depends on an alert and vocal people.

The encouraging sign is that it seems like the argumentative Indian, who is now speaking truth to power, cannot and will not be gagged.

(Source: Indian Express)