Comments on the proposal of MOSPI dated 17-08-2020 to amend the Collection of Statistics Act, 2008

(This was submitted to the Hon’ble Minister of Statistics & PI and the Chief Statistician of India on 26-04-2021)

Subject:       Proposal of MOSPI dated 17-08-2020 to amend the Collection of Statistics Act, 2008 in the context of decriminalisation of minor offences for improving business sentiment and unclogging court processes.

The Ministry of Statistics and Programme Implementation (MOSPI) uploaded a proposal on the above subject in their official website inviting comments / suggestions / views on the amendments to the Collection of Statistics Act, 2008 proposed by the MOSPI. The objectives sought to be achieved through the proposal are: decriminalisation of minor offences by removing criminal penalties such as imprisonment for minor offences, compounding lesser offences and making penalties just sufficient to work as deterrent, so as to improve ease of doing business and help unclog the court system and prisons.

Decriminalisation of a law can be carried out mainly in two ways. One way is to make provisions in the law to override the Indian Penal Code (IPC) generally applicable to offences, to provide for minor penalties (such as fines) for certain offences for which IPC prescribes imprisonment. This has been done in the Collection of Statistics Act, 2008. The Act, being a special law on statistics, overrides the general law, namely, the IPC in respect of statistical matters, in the light of section 32 of the Act reproduced below:

“32. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force except in relation to the conduct of human population census as per the directions, if any, issued under the Census Act, 1948.”

The manner in which the Collection of Statistics Act, 2008 overrides the IPC in respect of common offences is given below:

Nature of offence	Penalty prescribed under the
	Collection of Statistics Act, 2008	Indian Penal Code
1. Penalty for neglect or refusal to supply particulars	Fine up to Rs.1,000/- (Rs.5,000/- for a company). Further fine up to Rs.1,000/- (Rs.5,000/- for a company) for each day after the expiry of fourteen days from the date of conviction if the offence continues (Section 15)	Simple imprisonment for a term  which may extend to one month, or with fine which may extend to Rs.500/-, or with both
2. Making false statement	Fine up to Rs.1,000/- (Rs.5,000/- for a company) [Section 16]	Simple imprisonment for a term which may extend to six months, or with fine which may extend to Rs.1,000/-, or with both
3. Mutilation or defacement of information schedule	Fine up to Rs.2,000/- (Rs.10,000/- for a company) [Section 17]	Imprisonment of either description for a term which may extend to two years, or with fine, or with both
4. Obstruction of employees	Fine up to Rs.2,000/- (Rs.10,000/- for a company) [Section 18]	Simple imprisonment for a term which may extend to three months, or with fine which may extend to Rs.500/-, or with both
5. Failure to carry out duties and functions by employees	Fine up to Rs.2,000/- (Rs.10,000/- for a company) [Section 20]	Simple imprisonment for a term which may extend to one year, or with fine, or with both
6. Impersonation of employee	Fine up to Rs.2,000/- (Rs.10,000/- for a company) [Section 21]	Imprisonment of either description for a term which may extend to two years, or with fine, or with both

Thus, imposing fines in place of imprisonment as a measure of decriminalisation has already been incorporated in the Collection of Statistics Act, 2008.

The other way of decriminalisation is to provide for measures which, without altering the nature and ingredients of an offence, limit or dilute the penalty for that offence, through procedural or correctional devices. The general exceptions given in the IPC and the provision of releasing a convict on probation available in criminal law, which are conceived as measures of decriminalisation, have not been changed under the Collection of Statistics Act, 2008 for the common set of offences.

One procedural device, generally adopted as a measure of decriminalisation, is to make a provision in the law to provide for previous sanction of a particular authority as a mandatory requirement for the prosecution of a particular person or class of persons for a particular offence or class of offences. If sanction for prosecution is not granted, then, the offender in question does not actually receive punishment. Such procedural restrictions are designed to operate as obstacles against carrying the conduct in question to the ultimate destination of imposing punishment. Section 25 of the Collection of Statistics Act, 2008 reproduced below serves this purpose:

“25. No prosecution for an offence committed by any informant shall be instituted except by or with the sanction of the statistics officer, and no prosecution for an offence committed by persons other than informants shall be instituted except by or with the consent of the appropriate Government.”

The penalties prescribed under the Act are mostly minor in nature and in the form of fines. Summary trials (section 26) have been prescribed to try offences under the Act, which conclude on the average within a period of six months for each case and therefore, there is no heavy pendency or clogging of cases in courts.

The MOSPI, vide Notification No. 3693 dated 14-09-2018, published in the Gazette of India, Extraordinary Part II-Section 3-Sub-section (ii), appointed Additional Director General handling statistical coordination in the MOSPI as the nodal officer under sub-rule (1) of rule 3 of the Collection of Statistics Rules, 2011, requiring him to submit Annual Reports, on the working of the Collection of Statistics Act, 2008 and the Collection of Statistics Rules, 2011, in the prescribed format for each financial year by the end of September of the next financial year. The status of submission of Annual Reports by the nodal officer is not clear, as only one Annual Report for the year 2011-12 has been uploaded on the website of MOSPI. The Annual Report for the year 2011-12 has not thrown up any evidence for amending the Act.

Nodal officer’s reports are an important input for reviewing the working of the Collection of Statistics Act, 2008 and for considering any amendments to address the difficulties mentioned in the reports. In the absence of this important material, one may end up addressing non-existing problems, as is the case now.

The above analysis indicates that decriminalisation has been fully followed in the Collection of Statistics Act, 2008. As such, there seems to be no further scope in the Act for further decriminalisation. However, specific comments on the amendment proposals of the MOSPI are given in the following paragraphs.

Proposals given in Table 1 (A): It is proposed by the MOSPI to amend the sections 15 (1), 15 (2) and 16-22 of the Collection of Statistics Act, 2008. The amendments are aimed at enhancing the fine for different offences and adding a proviso that the penalty shall be levied keeping in mind any rules framed under the Act. The enhancement of fine is to the extent of multiplying ten times in respect of sections 15 (1), 16, 17, 18, 19, 20, 21 and 22, and doubling it in respect of section 15 (2). The MOSPI feels that these amendments are a step towards decriminalisation and the rationale given by MOSPI was that enhancing fines will have more deterrent effect.

Comments: The Collection of Statistics Act, 2008 provided for fines for which the IPC provided for imprisonment, in respect of common set of offences. The offences for which simple imprisonment has been prescribed along with or as an alternative to fine in sections 16 – 22 of the Act are more serious offences and are not related to refusal / neglect to furnish information by informants. Simple imprisonment has been incorporated in these sections on the basis of the recommendations of the Standing Committee on Finance under the Chairmanship of Shri Anant Kumar in its 66^th Report presented to Lok Sabha on 18^th March 2008 and laid in Rajya Sabha on 18^th March 2008.

The existing penal provisions in sections 15-22 of the Act have been working as adequate deterrents for offenders and there is no justification for enhancing the fines. In any case, enhancing fines and then providing for compounding cannot be considered as a step towards decriminalisation by any stretch of imagination. Further, subjecting penalties to be levied to rules under the Act that may be framed later is like a postdated cheque and the Parliament has not so far resorted to this kind of a delegation.

Proposals given in Table 1 (B):

Proposal 1: It is about amending the Preamble to the Act. The words in the Act with the words proposed to be added are shown in bold italics are given below:

“An Act to facilitate the collection, processing, storage and dissemination of statistics on economic, demographic, social, scientific and environmental aspects, as also on other areas of relevance, and for matters connected therewith or incidental thereto.”

It was stated by the MOSPI that the inclusion of the words like processing, storage and dissemination only makes the Preamble consistent with the legislative intent as these concepts are already prescribed in sections 2 (g), 13 and 27 of the Act. It was also stated by the MOSPI that the insertion of the term “on other areas of relevance” in the Preamble allows the Act to extend its jurisdiction to generate data systems for other areas of human development.

Comments: In the preamble or long title of the Act, the objectives of the Act are given. The long title gives brief description of the purpose or scope of the Act and it does not affect the operative provisions of the Act. However, where the operative provisions are unclear or ambiguous, the long title provides guidance to know the legislative intent. Processing, storage and dissemination, to the extent they are connected to collection of statistics, are covered in the operative provisions of the Act. Hence, there is no need to add the phrase ‘processing, storage and dissemination’ in the Preamble, as it will not enhance the scope of the Act in any way.

Secondly, there is no need to insert the words ‘as also on other areas of relevance’ in the Preamble as theirmeaning is covered in the phrase ‘for matters connected therewith or incidental thereto’.

Proposal 2: It is proposed to add a new definition, namely, “Data Ombudsman” to mean any officer appointed under section 3B for the purposes of any direction issued under section 3B of this Act.

Comments: There is no place for Data Ombudsman within the framework of the Act and there is no provision for issuing a direction under section 3B. The MOSPI has appointed a nodal officer and it appears that he has not been performing his statutory duties. The MOSPI may monitor and ensure proper functioning of the nodal officer, rather than considering creating one more statutory position.

Proposal 3: It is about amending section 3 of the Act. The words in the Act with the words proposed to be added are shown in bold italics and given below:

“The appropriate Government may, by notification in the Official Gazette, direct that the statistics on economic, demographic, social, scientific and environmental aspects as also on other areas of relevance shall be collected through a statistical survey or otherwise, and thereupon the provisions of this Act shall apply in relation to those statistics:”

Comments: The words ‘statistics on economic, demographic, social, scientific and environmental aspects’ cover all subject areas for collection of statistics by the Government and hence, there is no need to insert the words ‘as also on other areas of relevance’.

Proposal 4: It is about inserting a new section 3B in the Act. The new section proposed is given below:

It was stated by the MOSPI that the In-house resolution mechanism framework would be instrumental in building goodwill such that the legal provisions are rarely taken recourse to and that the resolution framework would explore all instruments namely, persuasion, mediation, and negotiation, to name a few, before invoking the compliance through criminal justice system.

Comments: The Collection of Statistics Act, 2008 has two important provisions under sections 24 and 25, reproduced below:

“24. Cognizance of offences. – No court shall take cognizance of any offence under this Act except on a compliant made by the appropriate Government or an officer authorised in this behalf by such appropriate Government or, as the case may be, the statistics officer, and no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act.

25. Sanction for prosecution for offence. – No prosecution for an offence committed by any informant shall be instituted except by or with the sanction of the statistics officer, and no prosecution for an offence committed by persons other than informants shall be instituted except by or with the consent of the appropriate Government.”

These provisions indicate that only competent courts can cognize offences, that too, after instituting prosecution after obtaining sanction for prosecution from the statistics officer or the appropriate Government, as the case may be. Hence, cognizance of offences cannot be exercised centrally by an officer in the Government, who may be designated as Data Ombudsman. As such, the question of his initiating any conciliation process will not arise. Since the definition of appropriate Government covers local authorities also, appointment of an officer centrally for any conciliation process will impose unnecessary fetters on the data collection process. With regard to the measures, such as persuasion, mediation, and negotiation, they are available before sanctioning prosecution and are usually resorted to. In the amendments, no specific functions have been proposed to be assigned to Data Ombudsman, other than strengthening the system of mutual trust, building goodwill and conflict resolution through various conciliation processes. These functions are highly imaginary within the framework of the Act and hence, the proposed amendment will not serve any purpose, except becoming an impediment in the process of data collection.

Proposal 5: It is proposed by the MOSPI to add a proviso in section 6 of the Act. The words in the Act with the words proposed to be added are shown in bold italics and given below:

“The informants who are asked to furnish any information under the provisions of this Act shall be bound to furnish the information so asked in the prescribed manner to the best of knowledge or belief; and in cases where only a portion of a particular class or group of persons or units is asked to furnish information because of any sampling procedure, it shall not be a defence in failure on the part of any informant to furnish that information, if so asked:

Provided failure to supply the desired information by an informant from a household to the statistics officer or his authorised representative shall not be penalised except for the sweep of section 17 and 18 of the Act.”

The rationale given by the MOSPI is that an informant from a household need not be penalised for any contraventions except for any act becoming inconsistent with the provisions of section 21 of the IPC as provided for, in section 29 of the Act.

Comments: The proviso is about failure to supply the desired information by an informant from a household, whereas section 21 of the IPC and section 29 of the Act deal with public servants engaged in collection of statistics. The informants and the public servants are two different categories of persons. Hence, the rationale given by the MOSPI is misconceived.

As per the provisions under section 2 (c) of the Act, informants in the data collection process are either natural persons or legal persons (companies). Natural persons, in whatever capacity they are required to furnish information, are informants of one household or the other. Exempting them from being penalised for failure to supply the desired information will encourage them not to furnish data but not deter them. Further, it is tantamount to killing the law in respect of the whole gamut of surveys covering natural persons, as there are very few surveys covering legal persons.

The MOSPI conducts Economic Census periodically and has invoked the provisions of the Act in the latest Economic Census. The report of seventh Economic Census is yet to be released. However, the sixth Economic Census conducted during 2012-13 revealed that there were 58.5 million establishments in the country and more than one third (36.19%) of all the establishments were home based establishments i.e. inside household. Except about 15 lakh establishments which may relate to companies, the rest are establishments relating to non-legal persons. This gives a dimensional idea of the major chunk of informants whom the proviso sought to be inserted will exempt.

Thus, there are substantial number of natural persons who are informants in the Economic Census, whereas informants who are legal persons are comparatively very few. Exempting natural persons from penalty will make the Economic Census a big failure resulting in heavy wastage of resources. Hence, the proposal to insert the proviso in section 6 of the Act will render the Act as infructuous and nugatory.

Proposal 6: It is proposed by MOSPI to add the following provisions under the relevant chapter (perhaps Chapter IV) of the Act.

The rationale given by the MOSPI is that the procedural, technical and minor non-compliances, especially the ones not involving subjective determinations, may be dealt with through in-house resolution mechanism and compounding so as to de-clog the criminal justice system.

Comments: The Act prescribes for an upper ceiling limit for fines to be imposed for neglect or refusal to supply particulars (section 15). In sections 16 – 22 of the Act, the penalty prescribed is simple imprisonment or fine (upper ceiling limit) or both. The courts impose the penalty of simple imprisonment or fine in each case looking at the gravity of offence and the status of the offender. The variations in the penalties imposed by courts, in the cases already disposed, indicate this phenomenon. Thus, there is an inbuilt mechanism of compounding, which the courts exercise, looking at the facts and circumstances of each case. Section 25 of the Act provides for prior sanction for prosecution before instituting legal proceedings in competent courts. This stage eliminates many cases from being dragged to courts. Section 26 of the Act prescribes summary trials. This eliminates clogging of cases in courts.

The Act is an enabling legislation. The appropriate Government (which includes local authorities), at its discretion, may invoke the provisions of the Act for collection of statistics on subjects handled by them. Thus, the actual field operations happen in the nooks and corners of the country. If offences occur in remote areas, it is desirable to leave it to the concerned officers (statistics officers) to handle the situations. It is not desirable to bring the cases to Delhi or any State capital, where a nodal officer is located, in the name of compounding. It is neither cost effective nor practically feasible. Hence, the proposed provisions are not required to be added in Chapter IV of the Act.