SC’s Verdict on CVC gives RTI activists 10 Reasons to Cheer!

Friends,

We should cheer now! Thursday’s Supreme Court verdict annulling P J Thomas’s appointment as CVC gives nepotism a kick in the pants! This order contains instructions for ensuring transparent selections of constitutional authorities such as State & Central Information Commissioners, members of Human Rights Commission, Minorities Commission, etc. We can use these ‘legal gems’ in our letter-baazi, complaints, RTI applications & writ petitions.

In this copy of the SC judgment, these 10 directives are shown in the right margin in Red Roman Numerals: http://tinyurl.com/SC-sacks-CVC1

These are also listed below.

10 Directives for Transparent Selection:

I. High Courts must entertain when appointments are challenged. “We reiterate that Government is not accountable to the courts for the choice made but Government is accountable to the courts in respect of the lawfulness/legality of its decisions when impugned under the judicial review jurisdiction.”(Pg 52, Point 45)

II. Recommendation made without due procedure are null & void. “If a duty is cast under the proviso to Section 4(1) on the High Powered Committee (HPC) to recommend to the President the name of the selected candidate, the integrity of that decision making process is got to ensure that the powers are exercised for the purposes and in the manner envisaged by the said Act, otherwise such recommendation will have no existence in the eye of law.” (Page 2, point 2).

III. CVC is defined as an “Integrity Institution”. (The same definition may stretch to Information Commissions.) “In our opinion, CVC is an integrity institution. This is clear from the scope and ambit (including the functions of the Central Vigilance Commissioner) of the 2003 Act. It is an Institution which is statutorily created under the Act. It is to supervise vigilance administration. The 2003 Act provides for a mechanism by which the CVC retains control over CBI. That is the reason why it is given autonomy and insulation from external influences under the 2003 Act.” (Page 22, Point 26.)

IV. The key issue is Institutional Integrity, not Personal Integrity. “The constitution of CVC as a statutory body under Section 3 shows that CVC is an Institution. The key word is Institution. We are emphasizing the key word for the simple reason that in the present case the recommending authority (High Powered Committee) has gone by personal integrity of the officers empanelled and not by institutional integrity.” (Point 28, page 30)

V. Recommendation of Selection Committee must show a proper thought-process. “The word ‘recommendation’ in the proviso stands for an informed decision to be taken by the HPC on the basis of a consideration of relevant material keeping in mind the purpose, object and policy of the 2003 Act. As stated, the object and purpose of the 2003 Act is to have an integrity Institution like CVC which is in charge of vigilance administration and which constitutes an anti-corruption mechanism. In its functions, the CVC is similar to Election Commission, Comptroller and Auditor General, Parliamentary Committees etc. Thus, while making the recommendations, the service conditions of the candidate being a public servant or civil servant in the past is not the sole criteria.” (Point 28, page 31-32).

VI. The logic of decision-making process must be self-evident. “Appointment to the post of the Central Vigilance Commissioner must satisfy not only the eligibility criteria of the candidate but also the decision making process of the recommendation. The decision to recommend has got to be an informed decision keeping in mind the fact that CVC as an institution has to perform an important function of vigilance administration. (Point 33, page 36)

VII. The touchstone is Public Interest. “When institutional integrity is in question, the touchstone should be ‘public interest’ which has got to be taken into consideration by the HPC and in such cases the HPC may not insist upon proof ” (i.e. conclusive proof of the candidate being corrupt or ineligible.) “The point to be noted is that in the present case the entire emphasis has been placed by the CVC, the DoPT and the HPC only on the bio-data of the empanelled candidates. None of these authorities have looked at the matter from the larger perspective of institutional integrity including institutional competence and functioning of CVC. It is the independence and impartiality of the institution like CVC which has to be maintained and preserved in larger interest of the rule of law. While making recommendations, the HPC performs a statutory duty. Its duty is to recommend. While making recommendations, the criteria of the candidate being a public servant or a civil servant in the past is not the sole consideration. The HPC has to look at the record and take into consideration whether the candidate would or would not be able to function as a Central Vigilance Commissioner.” (Point 33, page 37)

VIII. Don’t consider only civil servants. “No reason has been given as to why in the present case the zone of consideration stood restricted only to the civil service.” (Point 55, page 68).

IX. Step-by-step instructions for selection procedure, incl. how list of candidates will be prepared (Point 55, pg 68 onwards):

(a) Record reasons, especially if there’s dissent. “As in the present case, if one Member of the Committee dissents that Member should give reasons for the dissent and if the majority disagrees with the dissent, the majority shall give reasons for overruling the dissent. This will bring about fairness-in-action. Since we have held that legality of the choice or selection is open to judicial review we are of the view that if the above methodology is followed transparency would emerge which would also maintain the integrity of the decisionmaking process.”

(b) Don’t restrict selection to civil servants. “In future, the zone of consideration should be in terms of Section 3(3) of the 2003 Act. It shall not be restricted to civil servants.”

(c) Impeccable integrity. “All the civil servants and other persons empanelled shall be outstanding civil servants or persons of impeccable integrity.”

(d) Rational criteria, recording of reasons. “The empanelment shall be carried out on the basis of rational criteria, which is to be reflected by recording of reasons and/or noting akin to reasons by the empanelling authority.”

(e) Fixing accountability for empanelment. “The empanelment shall be carried out by a person not below the rank of Secretary to the Government of India in the concerned Ministry.”

(f) Don’t withhold information. “The empanelling authority, while forwarding the names of the empanelled officers/persons, shall enclose complete information, material and data of the concerned officer/person, whether favourable or adverse. Nothing relevant or material should be withheld from the Selection Committee. It will not only be useful but would also serve larger public interest and enhance public confidence if the contemporaneous service record and acts of outstanding performance of the officer under consideration, even with adverse remarks is specifically brought to the notice of the Selection Committee. ”

(g) Transparent screening procedure. “The Selection Committee may adopt a fair and transparent process of consideration of the empanelled officers.”

X. A precedent is set for quashing of Commissioner’s appointment by court. No need for roundabout methods to remove CIC/SIC! “The impugned appointment of Shri P.J. Thomas as Central Vigilance Commissioner is quashed.” (Point 56, page 71)

Benefits from this Judgment:

A. HALF THE BATTLE IS WON FOR ARVIND KEJRIWAL’S SLP, WHICH WAS RECENTLY ADMITTED BY SUPREME COURT. The Special Leave Petition challenges non-transparent selection of Information Commissioners. Gist of Kejriwal’s petition: http://tinyurl.com/Kejriwals-SLP1

B. Details of many unfair appointments: http://tinyurl.com/BadSelection

C. In 2010, Andhra Pradesh High Court and Tamil Nadu High Court admitted writ petitions filed by Madhav Vishnubhatta challenging the arbitrary selection of Chief State Information Commissioners. In Tamil Nadu, the Chief SIC was appointed by the CM’s selection committee, disregarding dissent expressed by opposition leader Jayalalitha.

D. THE CLEAN-UP WILL OPEN UP HUNDREDS OF POSTS AT CENTRAL AND STATE LEVELS. The government will have to consider ‘eminent citizens’ like you all for all such posts, as opposed to political chamchas: http://tinyurl.com/How-Babus-Steal-Power

Warm Regards,

Krish

98215 88114

Activists’ reaction to SM’s selection as Chief Information Commissioner

14 Dec 2010: Satyananda Mishra’s selection as Chief Central Information Commissioner, three months after the selection of another former DOPT secretary A N Tiwari, has many dimensions. Today’s TOI Mumbai (copy-pasted at bottom) has reported it well. Let us objectively analyze the positive and negative aspects.

First the dark side:

a) Hiring the DOPT Secretary is Chief information Commissioner is like hiring the ISI chief for the job of Human Rights Commissioner in Kashmir. DOPT is the dirty-tricks department of Govt. of India. It is the right-hand of PMO, and has powers to hire-and-fire and lynch (or exonerate) virtually any bureaucrat, anywhere in India. It controls CBI, CVC and virtually all vigilance functions of the government. Read this govt. manual: http://tinyurl.com/AboutDOPT

b) Satyananda Mishra (like his predecessor) is a former DOPT Secretary who abused his privileged position to enter Central Information Commission. Despite having many eligible candidates, Satyananda Mishra made the shortlist list so short that it reduced the PM’s selecting committee into a mere rubber stamp. These actions were then concealed by PMO, DoPT and Wajahat Habibullah (then the Chief Info. Committioner) with strange reasoning and self-contradictory statements. See here: http://tinyurl.com/CICduplicity Documents that finally came out last year revealed S Mishra’s abuse of trust and unconstitutional behaviour. See latter part of this document: http://tinyurl.com/SMishra1

a) It was sneaky and secretive – an inside-job between PMO and DOPT. There was no announcement of when the Prime Minister’s selection committee was to meet, and nobody knows who were the candidates considered, and whether any civil-society members were considered at all. It was a slap on the face of civil society. This is part of a larger problem that makes all such appointments malafide. For details, read “How Babus steal power from Civil Society:http://tinyurl.com/ThiefBabus1

Now the bright side:

One hears quite a few good things about Satyananda Mishra from the appellants who have appeared before him. What one hears is from well informed RTI activists like C J Karira and Girish Mittal is:

· SM gives logically reasoned orders

· Uses technology to ensure that his hearing proceedings are transcribed the same day and promptly converted into orders

· Holds hearings within 4-5 months of appeal being filed, has a decent disposal speed, is an efficient office administrator and maintains records well

· Is generally pro-disclosure, and puts the onus of justifying denial of information on the Public Information Officer and Public Authority.

· Often reveals his stand at the end of hearings and gives a general sense of direction as to what he will write in his order.

· He is an intelligent and reasonable man, who has shown guts and independent mind to take on the administration, and generally uphold the logical structure of the RTI Act.

· The only negative thing is that he is not too keen to impose penalty.

· All said, he is the best man that they could have handpicked for the job out of all the existing Central Information Commissioners.

In view of all this, I feel that Satyananda Mishra’s selection as Chief CIC is bad, but not terrible. Things could have been a lot worse.

However, we can still explore the possibility of going to Court to oppose his appointment, as it is overall an untoward appointment.

I now await the views of other activists and appellants – especially those who have appeared before him.

Warm Regards,

Krish

98215 88114

SIC Ramanand Tiwari involved in Adarsh-type scams in Mumbai & Pune

Maharashtra’s State Information Commissioner Ramanand Tiwari played a crucial role in two more land scams in Mumbai & Pune involving high ranking bureaucrats, politicians and their aides. One may term them as Adarsh-II and Adarsh-III. Also read about another scam in Wadala, which we may call Adarsh-IV, where Mr Tiwari’s hand, if present, is not clear.

“ADARSH-II”: RENUKA CO-OP. SOC., BANDRA EAST

Ashok Chavan’s aides usurped plot in Bandra meant for displaced families to build a private housing society; but disturbingly, main promoter D P Sawant, a Congress MLA, was sworn in as a Minister of State in Prithviraj Chavan’s government.

Other housing societies are tumbling out of Ashok Chavan’s closet. It has emerged that a piece of land in Bandra (East), meant for displaced residents, was usurped six months ago by bureaucrats and politicians close to the former Chief Minister. The four-acre plot, taken from the government for a small fraction of its market value, now houses Renuka Co-operative Housing Society, where the residents include several senior IAS officers, two of Chavan’s former secretaries, his brother-in-law Gulabrao Bhoyas, and State Information Commissioner Ramanand Tiwari.

Original news item: http://tinyurl.com/adarshbandra

The society consists of 2 BHK and 3 BHK flats, valued between Rs 2 and Rs 5 crore by local real-estate agents. They were, however, sold to Renuka’s privileged residents for Rs 20 to Rs 30 lakh. The move to take over this plot first began in 2004, but the owners started moving in only in May 2010. The entire project came up without any formal application before the BMC’s Improvement Committee to change the status of the plot from ‘dis-housed’ to ‘residential’.

This, at a time when the corporation desperately needs 25,000 houses to accommodate families affected due to projects such as BRIMSTOWAD (storm-water draining), road widening, nullah widening, and rehabilitation of slum-dwellers living near water pipelines. Construction began in 2004 on the plot measuring 1,389 sq metre. Violating Section 33 (1 & 2), a file was sent to the BMC seeking permission, but not forwarded to the Improvement Committee for approval. Despite no formal sanction from the corporation, and therefore no paper trail, the building was completed last year, and interior work was finished this summer.

“The state government has the right not to take a decision on changing the status of a plot on its own. At that time, Urban Development principal secretary Ramanand Tiwari played vital role in helping develop the society. The BMC got no wind of it,” said a senior civic official. Tiwari himself allegedly owns a flat in the building, but when contacted by Mumbai Mirror, denied that he had anything to do with the society. “If they say I own a house there, I will sue the society,” he said. BJP MLC Vinod Tawde, however, insisted that the former bureaucrat was one of the society’s members. “I have procured documents from the Registrar’s office, and Mr Tiwari’s name is very much there,” he claimed.

Other members of Renuka society include Nitin Kareer, Ashok Chavan’s chief secretary; Satish Sawant, personal assistant to the ex-CM; Shailesh Patil, son of former Union Home Minister Shivraj Patil; Vipin Gupchup, PA of Sushil Kumar Shinde; Ajay Bhushan Pande, the serving energy secretary; and Ramakant Asamar, a joint secretary in the State Revenue department.

Asamar confirmed he had a 3 BHK flat in Renuka. “But we’ve relocated a portion of the plot for dishoused people at another location. We’ve not done anything wrong,” he contended.

When contacted, retired IPS officer and social activist, Y P Singh, alleged that members of the Renuka society had not only illegally changed the reservation status of the plot but also shifted the direction of a nullah that passes nearby. “As per Section 22 of Maharashta Regional Town-Planning Act, reservations are created as per the requirement of the city and its development needs. An individual need of a private society cannot supersede the development of the city,” Singh said.

Rahul Shewale, chairman of the BMC’s standing committee, said they would immediately look into matter, and prepare a report seeking to reclaim the plot. “Without consulting us, houses meant for displaced people have been given to top politicians and bureaucrats at a throwaway price. All people involved should be booked and action should be taken against them,” he said.

“ADARSH-III”: GAYATRI CO-OP. SOC., SHIVAJI NAGAR, PUNE

29 senior IAS officials and junior bureaucrats grabbed government land consisting of five acres and formed the Gayatri Cooperative Housing Society. The vacant land belonged to the former Food Craft Institute (FCI), now Maharashtra State Institute Hotel Management and Catering (MSIHMAC), which is a state government institution. The land was allotted to the institution to construct a ladies hostel and sports complex. As the state government was reeling under financial crisis in 2004, funds for the building were withheld.

Original news item: http://tinyurl.com/adarshpune

The bureaucrats took advantage of a legal loophole that government land must be utilized within two years or the government would reclaim it back. They then came together with bureaucrats from the secretariat and, without the knowledge of the institution, took control of the land by dubious means. Though the bureaucrats managed to get an order in favor of the Gayatri Society floated by them, it was quashed by the then Divisional Commissioner P. D. Karandikar.

Now Karandikar, who had ordered the land grabbed by bureaucrats to be returned to the institution, says, “I have unconfirmed information that the Government in Department of Higher & Technical Education (DTE) have informed the Revenue Department that the land in question is not likely to be utilized by them for expansion of the Hotel Management Institute (for want of budgetary provision). This would pave the way for floating another Co-op Housing Society on the same plot. Official information on this can be obtained by Research and Technical Institute application.”

ADDITIONAL INPUTS FROM THE AUTHOR SHAHID BURNEY, A SENIOR RTI STALWART:

Ramanand Tiwari's wife Sheela Tiwari, also an IAS officer, acquired a stake in this housing society, when Ramanand was secretary of Urban Development in 2004. List of society members acquired under RTI from Deputy Registrar of Cooperative Society in Pune:

1. Satish Tripati - Mumbai

2. Rakesh Chandra Joshi, Mumbai

3- Subash Lalla (Chairman State Human Rights Commission), Mumbai

4. Sanjay Ubale, former Secretary GAD, Mumbai

5. Mahesh Pathak, Mumbai

6. Smt. Sheela Ramanand Tiwari, Mumbai (W/O Ramanand Tiwari)

7. Jawale HK, Mumbi

8. Vikas Deshmukh, Mumbai

9. Sanjay Radkar, Mumbai

10. Rajiv Nivatkar, Mumbai

11. Avinash Dhakne, Mumbai

12. S.G.Deshmukh, Pune

13. Anil Diggikar, former Pimpri-Chinchwad Municipal Commissioner, Pune

14. V. Radha, Secretary, Women and Child Development, Mumbai

15. Umakant Dangat, former Additional Collector, Pune

16. D.G. Rajurkar, former Deputy Municipal Commissioner, PMC, Pune,

17, Swati-Mhase-Patil, Pune

18. Suhas Diwase, former Resident Deputy Collector, Pune

19. Sharad Jadhav, Pune

20. Kavita Diwvedi, Pune,

21. Suraj Mandhare, Miraj, Sangli

22. Kishore More, Chief Promoter, former deputy collector and Private Secretary to

Minister of Tourism, Mumbai

23. Ajiyanka Padwal, former Additonal Collector, Pune,

24. Sampath Davkar, former deputy collector, Pune and OSD to Minister Patangrao Kadam

25. Smt. Deepali Khade, Pune

26. Vipin Gupchup, Pune

27. D.P. Metke

28. Ashok Mulchandani, Pimpri, Pune

29. Jungle Wagh

Names of former PMC Commissoner Nitin Kareer and Government Pleader Amar Mulchandani also figure in the government list. (Nitin Kareer is said to be instrumental in allotting government land in the Sasson General Hospital to controversial NGO Sofosh.)

In spite of the then Divisional Commissioner Bapu Karandikar directing the collector to return the government land back to the owners MSIHMAC, the IAS officers have not yet given up their claim and are creating obstruction in the handing over the land. All the 29 members had paid their share capital of Rs. 250.

Shahid Burney, who lives in Pune (094220 12831,seniorjourno@yahoo.com ), has a dossier of documents about Gayatri society, and also Indus Society which is mentioned below.

“ADARSH-IV”: INDUS CO-OP. SOC., WADALA

To purchase flats at exceptional concession rates, bureaucrats in the state secretariat bargained to clear files, adding their own people to the original list with the Finance Department. Indus was promoted by some IAS officers who were later joined by IPS officers, senior government servants and legislators from the Legislative Assembly and Legislative Council. This resulted in the members’ list rising to 135 plus. The promoters applied for land at Wadala with the government giving its willingness to allot 13,000 square meters of land.

After the government agreed to the allotment of the land, it dawned on the promoters that the land was near the sea shore and was thus covered under the provisions of the Coastal Regulation Zone (CRZ) notification, making them eligible to use only 7,000 square meters, which was nearly half of the actual land allotted by the government. This compelled the promoters to reduce the membership to 92 and they provided this list to the Mumbai Collector, who further reduced it to about 70 members saying that most of the members were not eligible. As the land was reduced, the building could only accommodate 82 members for 1,000 square feet flats.

As the file began moving in all the secretariat departments, politicians also demanded a share in the society to clear the proposal.

Currently, it is thought that Chief Minister Prithviraj Chavan, taking a lesson from the Adarsh housing scam, may delete names of some politicians and bureaucrats or delay the allotment of land to Indus Society.

Warm Regards,

Krish

Maharashtra GAD advised to advertise for SIC candidates, but CM ignored

October 6, Mumbai: As far back as three years ago, Maharashtra Government’s General Administration Department (GAD) advised Chief Minister and Chief Secretary that there was a shortage of good candidates for consideration to the post of State Information Commissioner, and that it would be worthwhile in future to advertise in newspapers to attract a wider selection of candidates. This was revealed by a recent RTI reply to Pune activist Vihar Durve. See red-circled paragraph in file notings: http://www.box.net/shared/bhlzzx2bt3

Alas, GAD’s sound advice fell on deaf ears, and these posts are not yet advertised. Today, the Chief Minister’s selection committee is slated to meet and choose a successor to Chief Information Commissioner Dr Suresh Joshi, who is about to retire within a week. SIC Vilas Patil, who currently sits in Nagpur, is said to be likely to be promoted into this post. They may also select fresh Information Commissioners – although whom they will select is absolutely anybody’s guess.

RTI activists all over the state (and indeed, nationwide) have been crying themselves hoarse, asking for the selection process to be conducted in an open and transparent manner, so that eminent persons from civil society may apply as intended by the Act in section 15(5), and come to be selected on merit. The positions of SIC and Chief SIC are currently being used as a plum post-retirement position for favourite bureaucrats, although these posts actually require persons with a judicious mind and independent stance. This is because SICs are always under pressure from the political and bureaucratic establishment to refrain from asking for disclosure of embarrassing documents.

Unfortunately, the lack of selection criteria and procedure are so stark that if Chief Minister Ashok Chavan today chooses, he may even have his driver declared as the Chief State Information Commissioner! Given the 2:1 majority that the ruling party enjoys in such committees, the opposition leader would have no say in this matter. (This is not hype; it was amply demonstrated in the recent selections of Tamil Nadu’s Chief Information Commissioner, and also the Chief Central Vigilance Commissioner.) No matter who is selected today, RTI activists will suffer from having as a second appellate authority someone who is deeply indebted to the Chief Minister and his friends.

We have decided to fiercely oppose the non-transparent, arbitrary selection that will happen today in Maharashtra. This time, we say, “Enough! Thus far and no further”.

For details, contact

· Vihar Durve: 98605 86039 vihardurve@gmail.com

· G R Vora: 98691 95785 grvora@gmail.com

Warm Regards,

Krish

98215 88114

Format for Anti-Corruption FIR against SIC/CIC staff & Info Commissioners

When monetary penalties and disciplinary actions appear likely, people offer bribes to escape. During casual chats, Maharashtra SIC staff talk about how PIOs and FAAs of slippery public authorities – especially those dealing with builders and land mafias -- offer hefty amounts. In return, Information Commissioners and their staff render “services” such as:

a) Giving orders favourable to PIO, ignoring facts

b) Condoning unjustified delays and denials

c) Not passing orders after the hearing

d) Passing vague, unreasoned and meaningless orders

e) SIC’s staff not issuing show-cause notice even after adverse order

f) Not posting adverse order and/or not putting it up on website

g) Posting hearing notice to appellant on or after hearing date, or close to hearing date, so that appellant cannot attend

h) Not calling appellant for hearing and passing ex-parte order

i) Ignoring incriminating evidence produced by appellant

j) Allowing PIO’s or FAA’s contentions unsupported by documents or evidence.

Sections 7 - 14 of Prevention of Corruption Act, 1988 (PCA 88), describes various corrupt acts performed by public servants and their henchmen. Section 7 (“Public Servant taking gratification other than legal remuneration in respect of an official act”) defines gratification thus: “The word ‘gratification’ is not restricted to pecuniary gratifications or to gratifications estimable in money.” For instance, if an Information Commissioner, or his wife or son, is rewarded with a plum post-retirement posting by Mantralaya, that is “gratification”. Or, if the State Information Commissioner’s wife or son gets a plum contract with a builder’s firm, that is “gratification”.

Thus, PCA 88 does not require evidence of money changing hands. If we can establish that “gratification” was given in respect of an official act, we should complain to Anti-Corruption Bureau (ACB) and try to get an FIR registered under PCA 88 and Indian Penal Code (IPC).

In fact, even gratification need not be established by evidence under PCA 88. Abuse of public office is enough to get the ACB to register a complaint and investigate. Section 13(1) of PCA 88 says, “(1) A public servant is said to commit the offence of criminal misconduct (c) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be , or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or (d) If he - (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage ; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant obtains for any person any valuable thing or pecuniary advantage without any public interest”.

In Maharashtra, a very useful High Court order can directly lead to investigation and action by ACB.
Download this order: http://www.box.net/shared/ob4rq29v6f

There are at least a hundred activists and RTI appellants out there, who have direct first-hand knowledge of such activities happening in various State Information Commissions and their secretariats. I would urge them to use this format to file a complaint against their corrupt Information Commissioner and/or member of his staff.

Download format for Complaint to ACB: http://www.box.net/shared/l4jhdxs2t1

Other useful links: http://www.box.net/shared/9qz41qtdsx

Warm Regards,
Krish
98215 88114