Tuesday 22 June, Mumbai: On Saturday, RTI activists’ alarm bells started ringing when a dozen cops in police van no. MH01-SA-3313 parked on Western Express Highway near Borivli National Park, behaved strangely. A posse of cops loitering outside the compound of an under-construction high-rise building belonging to matka-king-turned-builder Pappu Sawla refused to identify themselves or their superior officer. A couple of them covered their name plates with their hand when activist Krishnaraj Rao tried to note their names. They also avoided identifying the senior officer in charge of their van when asked, until the police control room was contacted.
Rao had approached the cops saying that he wanted to report destruction of a public property. The footpath that the cops were standing on was being driven over by trucks and drilling rigs entering the construction site from the highway. Rao asked the cops to check whether the contractor had any papers authorizing this. To his chagrin, the cops shied away. So much for Mumbai Police vaunted campaign asking people to be Alert Citizens!
In the midst of this heated argument (at about 11.40 pm), activist Girish Mittal, who was passing by, dialed 100 Police Control Room and gave the phone to Rao. When Rao talked to the police headquarters about the cops’ strange behavior and tried to give the phone to the cops, they refused to take it, but pleaded, “Please get off the phone, we will tell you our senior’s name”. Then one cop reluctantly identified himself as Assistant Sub Inspector (ASI) S G Sarang and said he was in charge of the van. Sarang claimed that the vehicle was patrolling the highway from Dahisar to Goregaon, and had one constable each from many police stations between Dahisar and Goregaon.
Sarang then asked Rao to go with him to Kasturba Marg police station and register a complaint against the builder, to which the latter readily agreed. At the police station, however, duty officer Duduskar bluntly refused to register the complaint. (Note: Rao had approached Mr Duduskar and his boss, Senior Inspector Rajendra Thakur, the previous day. They had refused to write down a complaint, and told Rao to get directions from the municipal corporation first.)
Two years ago, activist G R Vora (98691 95785) had a similar experience near CST station when he tried to note down a traffic policeman’s name and badge number. The cop turned aggressive and nearly hauled him off to the nearby Azad Maidan police station. Only timely intervention by a very senior journalist, who was passing by, saved Vora from further unpleasantness. “Citizens are expected to produce their driving license and identification when cops demand it. So what gives cops the right to hide their identification?” asks Vora.
Activist Sunil Ahya (98200 71606) had a similar incident last year when he had an exchange with some traffic cops at Goregaon signal, and tried to read their nameplate and note down their names on his mobile. They turned abusive and threatened to take him to a police station. “It seems that policemen have still not got used to the idea that citizens can and will hold them accountable. They seem to believe that their authority entitles them to get away with anything,” remarks Ahya.
“If the cops are upholding the spirit of the law, they have nothing to fear from us,” avers Rao. “If they act suspicious, hide their names and intimidate citizens who ask them legitimate questions, what are the remedies before a citizen? Where should a citizen lodge a complaint against such behavior,” he asks.
Background information & Photos
“Sai-Iscon” construction work started on a plot (CTS no. 550, 551 and 552) that is said to belong to matka king Pappu Sawla (Also see Times of India, 20th June, page 5). This landlocked plot has no entry or exit other than the highway, and is therefore, construction is illegal as per Section 18 of Development Control (DC) Regulations. However, Section 22(5) of the regulations says that the Municipal Commissioner can order the occupants of the adjoining plot to give access. So, if Sai-Iscon is built without proper authorization to open a gate on the highway, the building will be “regularized” by using Rao’s building compound as thoroughfare, causing a nuisance. Rao phoned BMC’s 24-hour complaint line 1916 and submitted two complaints (No. 0720833366 and -68), and is struggling to get various authorities to sit up and take note of various violations.
Contrary to popular misconception that only the municipal corporation is responsible in preventing such illegalities, the police is also responsible as per the Indian Penal Code. However, because of police refusal to register complaints and take prompt action, and because of endless buck-passing between police, Mumbai’s municipal corporation, MMRDA, PWD and other authorities, builders get away with all sorts of illegalities and public-spirited citizens are frustrated in their efforts to bring them to book.
1. Photos of the patrol van & evasive cops outside construction site, taken by Rao: http://www.box.net/shared/0zaxib5i7z
2. Photos of the construction work violating numerous provisions: (i) destroying footpath near highway (ii) cutting trees (iii) carrying out piling work for foundation less than one metre away from adjoining building compounds: http://www.box.net/shared/toobodd3dk
Issued in public interest by Krishnaraj Rao
98215 88114
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Tuesday, June 22, 2010
Friday, June 11, 2010
RTI reveals how babus steal ‘power’ from civil society
Mumbai, 11 June: Opaque and unaccountable selection of Information Commissioners is the tip of the iceberg. Girish Mittal’s RTI applications are veiling a more widespread scam being carried on in broad daylight. There are literally hundreds of posts under various central ministries, theoretically meant for ‘eminent citizens’ from all walks of life, but in practice available only to political cronies, retiring bureaucrats and other insiders in the corridors of power. Ironically, various legal provisions and rules are cited as justification for such patently lawless appointments; the truth is that many of these legal provisions have no criteria for identifying suitable candidates. The appointment of 14 members of National Committee for Promotion of Social and Economic Welfare is a classic example of this.
I. Let us see how such posts are legitimately supposed to be filled.
A. What does the Constitution say? Article 16 is about Equality of Opportunity in Matters of Public Employment. It says, “There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
B. What is DoPT’s acknowledged role? As per DoPT’s induction material 2008: “The role of the Department of Personnel & Training can be conceptually divided into two parts, In its large nodal role, it acts as the formulator of policy and the watch-dog of the Government ensuring that certain accepted standards and norms, as laid down by it, are followed by all Ministries/Departments, in the recruitment, regulation of service conditions, posting/transfers, deputation of personnel as well as other related issues. Towards this end, guidelines are issued by it for the benefit of all Ministries/Departments and it monitors the implementation of these guidelines. It also advises all organizations of the Central Government on issues of personnel Management. At a more immediate level, the Department has the direct responsibility of being the cadre controlling authority for the IAS and the three Secretariat Services in the Central Secretariat. The Department also operates the Central Staffing Scheme under which suitable officers from All India Services and Group ‘A’ Central Services are selected and then placed in posts at the level of Deputy Secretary/Director and Joint Secretary, on the basis of tenure deputation. The Department also deals with cases of appointment to posts of Chairman, Managing Director, full-time functional Director/Member of the Board of Management of various Public Sector Undertakings/ Enterprises, Corporations, Banks and financial institutions. It also deals with the assignment of Indian experts to various developing countries.”
C. What do DoPT’s guidelines say?
Point 3(1)(i) of Search Committees guidelines 1994 says, “A Search Committee can be constituted only for posts that do not fall within UPSC’s purview. Point 3(1)(ii) says, “It is to be kept in mind that as a rule, appointments in government are to be made on the basis of open advertisement. Therefore, proper advertisement of vacancies to be filled up by direct recruitment is an essential requirement. There may, however, be situations where advertisement itself may not result in adequate response for recruitment to similar posts which require specialized scientific/technical knowledge and experience. It is only in these situations that Search Committee should normally be appointed to locate suitable persons with the desired qualifications and experience to augment the response to the advertisement.
Further, the introductory paragraph of Search Committee guidelines ‘07 clarifies, “These instructions are primarily applicable to posts in the Government but also apply mutatis mutandis in the case of posts in autonomous / statutory organizations.”
II. Let us see the Information
unearthed by RTI applications.
Activist Girish Mittal & his father Kishanlal filed RTI applications with several authorities under various central ministries asking about selection procedures.
a) RTI application to NCPSEW (National Committee for Promotion of Social and Economic Welfare) under Revenue Department of Finance Ministry
Information sought: Minutes of meetings held for selection of members of National Committee for Promotion of Social and Economic Welfare
Reply given: “There is no provision in law / rule of Income Tax Act 1962 to hold a meeting for selection of members of National Committee. In exercise of the powers conferred by Section 35 AC of the Income Tax Act read with sub-rule (1) and (3) of Rule 11G of Income Tax Rules 1962, the Central Government appoints the persons as Chairman and Members of the National Committee from among persons of eminence in public life.
Download this RTI application and replies:
http://www.box.net/shared/tuoxjupxaa
b) RTI application to Ministry of Social Justice & Empowerment
Information sought: In respect of various commissions under this ministry, viz. National Commission for Scheduled Castes, National Commission for Backward Classes, National Commission for Safai Karamcharis, National Minorities Commission, National Commission for Scheduled Tribes, detailed information was sought about selection procedures followed.
Reply given: Replies have been received so far from three of these Commissions. They all are saying the same thing: All the replies blandly assert that the appointments are as per applicable legal provisions and rules. Appointments are being made without attracting applications, issuing advertisements or circulars, and holding meetings of selection committees as mandated by DoPT’s guidelines. No minutes of meetings or correspondence are being provided as to when and how these selections and appointments are made. In two of the three cases, Mittal is asked to inspect the records. National Commission for Backward Classes states that no such material exists. Information regarding names, designations and bio data of candidates who applied for the post is denied by all three Commissions on various grounds.
Download this RTI application and replies from three Commissions: http://www.box.net/shared/v2ix64bf7y
Mittal’s earlier investigations had unveiled appointments of Central Information Commissioners without any due procedure, and often in completely crooked and convoluted ways. The appointment of A N Tiwari, Satyananda Mishra and Omita Paul at Central Information Commission were terrible instances of lack of due procedure.
Clearly, accountability and transparency in appointments are missing throughout the administration.
III. Why the buck stops with DoPT.
DoPT’s induction material 2008 indicates that the buck stops with DoPT, which, being directly under the Prime Minister, is the only department empowered to tackle these malpractices in various ways. The induction material gives details of various watchdog mechanisms on corruption and administrative malpractices, all under DoPT:
4.5.1 Administrative Vigilance
An important element of personnel management is the maintenance of the professional ethics and standards of the bureaucracy. The Department of Personnel & Training determines Government policy for the maintenance of the integrity of the public services and eradication of corruption and coordinates the activities of various Ministries/Departments in that area. However, all Ministries/Departments and offices of the Government of India have the direct responsibility for the maintenance of discipline and integrity of their staff by taking preventive measures and eradication of corruption in their operational area of work.
4.6 Central Vigilance Commission
Advice on all vigilance matters is provided by Central Vigilance Commission. It has jurisdiction and power in respect of all matters to which the executive power of the Central Government extends. The Commission enjoys the same measure of independence and autonomy as the Union public Service Commission. The Commission has its office at Satarkta Bhavan, INA Colony, New Delhi.
4.7 Central Bureau of Investigation
The Central Bureau of Investigation (CBI) is the premier investigating agency of the country and watchdog of the nation to arrest the growing menace of corruption as also to investigate the various types of banking, non-banking and the multitude of economic and other conventional offences. A new addition to its function is investigation of inquiries into terrorist crimes, vandalism etc. Cases are referred to this agency, on the basis of concurrence of the State Governments, by the High Court as well as by the Supreme Court and there is an ever growing public demand for CBI investigation on account of the general perception that investigation by the CBI is more objective. The CBI has its headquarters office in Block No. 3, CGO Complex, New Delhi.
4.8 Joint Consultative Machinery
There is a well-structured machinery for joint consultation between the Central Government and its employees on a wide variety of service matters having a bearing on the administration and the general interests of the Government employees. It is a three-tier machinery consisting of the National Council, the Department Council and the Regional/Office Council. Service matters, pertaining to the interests of the generality of the employees or specific groups of them, are dealt with by this machinery.
4.9 Central Administrative Tribunal
In spite of the elaborate system of rules and regulations, which govern personnel management, there are Government employees who feel aggrieved by the Government decisions. The courts used to take many year to decide these cases and litigation was expensive. In order to provide speedy and inexpensive justice to employees aggrieved by Government decisions, the Government set up the Central Administrative Tribunal (CAT) in 1985, which now deals with all cases relating to service matters which were previously dealt with by courts up to and including the High Court. There are now 17 regular Benches of the CAT functioning in various parts of the country, including its Principal Bench at Delhi.
For updates and queries, contact Girish Mittal mittalgirish{AT}gmail.com,
Warm Regards,
Krish
98215 88114
I. Let us see how such posts are legitimately supposed to be filled.
A. What does the Constitution say? Article 16 is about Equality of Opportunity in Matters of Public Employment. It says, “There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
B. What is DoPT’s acknowledged role? As per DoPT’s induction material 2008: “The role of the Department of Personnel & Training can be conceptually divided into two parts, In its large nodal role, it acts as the formulator of policy and the watch-dog of the Government ensuring that certain accepted standards and norms, as laid down by it, are followed by all Ministries/Departments, in the recruitment, regulation of service conditions, posting/transfers, deputation of personnel as well as other related issues. Towards this end, guidelines are issued by it for the benefit of all Ministries/Departments and it monitors the implementation of these guidelines. It also advises all organizations of the Central Government on issues of personnel Management. At a more immediate level, the Department has the direct responsibility of being the cadre controlling authority for the IAS and the three Secretariat Services in the Central Secretariat. The Department also operates the Central Staffing Scheme under which suitable officers from All India Services and Group ‘A’ Central Services are selected and then placed in posts at the level of Deputy Secretary/Director and Joint Secretary, on the basis of tenure deputation. The Department also deals with cases of appointment to posts of Chairman, Managing Director, full-time functional Director/Member of the Board of Management of various Public Sector Undertakings/ Enterprises, Corporations, Banks and financial institutions. It also deals with the assignment of Indian experts to various developing countries.”
C. What do DoPT’s guidelines say?
Point 3(1)(i) of Search Committees guidelines 1994 says, “A Search Committee can be constituted only for posts that do not fall within UPSC’s purview. Point 3(1)(ii) says, “It is to be kept in mind that as a rule, appointments in government are to be made on the basis of open advertisement. Therefore, proper advertisement of vacancies to be filled up by direct recruitment is an essential requirement. There may, however, be situations where advertisement itself may not result in adequate response for recruitment to similar posts which require specialized scientific/technical knowledge and experience. It is only in these situations that Search Committee should normally be appointed to locate suitable persons with the desired qualifications and experience to augment the response to the advertisement.
Further, the introductory paragraph of Search Committee guidelines ‘07 clarifies, “These instructions are primarily applicable to posts in the Government but also apply mutatis mutandis in the case of posts in autonomous / statutory organizations.”
II. Let us see the Information
unearthed by RTI applications.
Activist Girish Mittal & his father Kishanlal filed RTI applications with several authorities under various central ministries asking about selection procedures.
a) RTI application to NCPSEW (National Committee for Promotion of Social and Economic Welfare) under Revenue Department of Finance Ministry
Information sought: Minutes of meetings held for selection of members of National Committee for Promotion of Social and Economic Welfare
Reply given: “There is no provision in law / rule of Income Tax Act 1962 to hold a meeting for selection of members of National Committee. In exercise of the powers conferred by Section 35 AC of the Income Tax Act read with sub-rule (1) and (3) of Rule 11G of Income Tax Rules 1962, the Central Government appoints the persons as Chairman and Members of the National Committee from among persons of eminence in public life.
Download this RTI application and replies:
http://www.box.net/shared/tuoxjupxaa
b) RTI application to Ministry of Social Justice & Empowerment
Information sought: In respect of various commissions under this ministry, viz. National Commission for Scheduled Castes, National Commission for Backward Classes, National Commission for Safai Karamcharis, National Minorities Commission, National Commission for Scheduled Tribes, detailed information was sought about selection procedures followed.
Reply given: Replies have been received so far from three of these Commissions. They all are saying the same thing: All the replies blandly assert that the appointments are as per applicable legal provisions and rules. Appointments are being made without attracting applications, issuing advertisements or circulars, and holding meetings of selection committees as mandated by DoPT’s guidelines. No minutes of meetings or correspondence are being provided as to when and how these selections and appointments are made. In two of the three cases, Mittal is asked to inspect the records. National Commission for Backward Classes states that no such material exists. Information regarding names, designations and bio data of candidates who applied for the post is denied by all three Commissions on various grounds.
Download this RTI application and replies from three Commissions: http://www.box.net/shared/v2ix64bf7y
Mittal’s earlier investigations had unveiled appointments of Central Information Commissioners without any due procedure, and often in completely crooked and convoluted ways. The appointment of A N Tiwari, Satyananda Mishra and Omita Paul at Central Information Commission were terrible instances of lack of due procedure.
Clearly, accountability and transparency in appointments are missing throughout the administration.
III. Why the buck stops with DoPT.
DoPT’s induction material 2008 indicates that the buck stops with DoPT, which, being directly under the Prime Minister, is the only department empowered to tackle these malpractices in various ways. The induction material gives details of various watchdog mechanisms on corruption and administrative malpractices, all under DoPT:
4.5.1 Administrative Vigilance
An important element of personnel management is the maintenance of the professional ethics and standards of the bureaucracy. The Department of Personnel & Training determines Government policy for the maintenance of the integrity of the public services and eradication of corruption and coordinates the activities of various Ministries/Departments in that area. However, all Ministries/Departments and offices of the Government of India have the direct responsibility for the maintenance of discipline and integrity of their staff by taking preventive measures and eradication of corruption in their operational area of work.
4.6 Central Vigilance Commission
Advice on all vigilance matters is provided by Central Vigilance Commission. It has jurisdiction and power in respect of all matters to which the executive power of the Central Government extends. The Commission enjoys the same measure of independence and autonomy as the Union public Service Commission. The Commission has its office at Satarkta Bhavan, INA Colony, New Delhi.
4.7 Central Bureau of Investigation
The Central Bureau of Investigation (CBI) is the premier investigating agency of the country and watchdog of the nation to arrest the growing menace of corruption as also to investigate the various types of banking, non-banking and the multitude of economic and other conventional offences. A new addition to its function is investigation of inquiries into terrorist crimes, vandalism etc. Cases are referred to this agency, on the basis of concurrence of the State Governments, by the High Court as well as by the Supreme Court and there is an ever growing public demand for CBI investigation on account of the general perception that investigation by the CBI is more objective. The CBI has its headquarters office in Block No. 3, CGO Complex, New Delhi.
4.8 Joint Consultative Machinery
There is a well-structured machinery for joint consultation between the Central Government and its employees on a wide variety of service matters having a bearing on the administration and the general interests of the Government employees. It is a three-tier machinery consisting of the National Council, the Department Council and the Regional/Office Council. Service matters, pertaining to the interests of the generality of the employees or specific groups of them, are dealt with by this machinery.
4.9 Central Administrative Tribunal
In spite of the elaborate system of rules and regulations, which govern personnel management, there are Government employees who feel aggrieved by the Government decisions. The courts used to take many year to decide these cases and litigation was expensive. In order to provide speedy and inexpensive justice to employees aggrieved by Government decisions, the Government set up the Central Administrative Tribunal (CAT) in 1985, which now deals with all cases relating to service matters which were previously dealt with by courts up to and including the High Court. There are now 17 regular Benches of the CAT functioning in various parts of the country, including its Principal Bench at Delhi.
For updates and queries, contact Girish Mittal mittalgirish{AT}gmail.com,
Warm Regards,
Krish
98215 88114
Wednesday, June 9, 2010
In Andhra Pradesh, even your steno can become Information Commissioner. Apply NOW!
Dear fellow citizens & activists,
Of the four Information Commissioners that Andhra Pradesh has, one is a former bureaucrat – C D Arha. The remaining three, however, are lightweight personalities who are very far from “eminent” -- a lawyer, a journalist and a congress worker.
Chief Information Commissioner Arha is due for retirement in July. At least one vacancy will arise in July. So, civil society members have less than a month to apply for the post and ensure that the next round of appointments happen according to a transparent procedure. The other Information Commissioners, appointed in 2005, will retire before the year-end, creating more vacancies; so keep spreading the word among your friends and colleagues.
To apply for Andhra Pradesh SIC, click here: http://tinyurl.com/applyforAPSIC
Do you worry about your lack of qualifications and experience for the job of Andhra Pradesh State Information Commissioner? Then have a look at APSIC K Sudhakar Rao’s official biodata: http://www.apic.gov.in/cvsudhakar.do
The “previous experience” of this 60-year-old engineering graduate is as follows:
1. Participated in student activities in college and school days.
2. Participated in social service like bringing up downtrodden and weaker sections of the society.
3. Very much interested in management of industries.
4. Also interested in development of Science and Technology.
Surely your experience has more substance?
The biodatas of the other two worthy gentlemen are only slightly better:
A Subba Rao: http://www.apic.gov.in/cvasubbarao.do
Dileep Reddy: http://www.apic.gov.in/cvdileepreddy.do
We are reliably informed that these gentlemen were relatively unknown in their own professional circles, but somewhat better-known in political circles. So, one may be forgiven for terming them as political stooges.
Sudhakar Rao continued to conduct himself as a congress worker even after being appointed as Information Commissioner. Here, you can read a juicy news story about the embarrassing activities of this Information Commissioner during by-elections in November 2006: http://www.tribuneindia.com/2006/20061122/nation.htm#6.
Conclusion: The reason why such people get appointed is because there is no transparent procedure for appointing Information Commissioners. And this alone is sufficient to kill the RTI act. Hence it is imperative to act now to ensure that the next round of appointments happen through a transparent procedure. Please hasten to apply for the post of APSIC. Act now to save RTI.
Warm Regards,
Madhav Vishnubhatta , Chennai, 98403 27303
Krishnaraj Rao, Mumbai, 98215 88114
sahasipadyatri.AT.gmail.com
Of the four Information Commissioners that Andhra Pradesh has, one is a former bureaucrat – C D Arha. The remaining three, however, are lightweight personalities who are very far from “eminent” -- a lawyer, a journalist and a congress worker.
Chief Information Commissioner Arha is due for retirement in July. At least one vacancy will arise in July. So, civil society members have less than a month to apply for the post and ensure that the next round of appointments happen according to a transparent procedure. The other Information Commissioners, appointed in 2005, will retire before the year-end, creating more vacancies; so keep spreading the word among your friends and colleagues.
To apply for Andhra Pradesh SIC, click here: http://tinyurl.com/applyforAPSIC
Do you worry about your lack of qualifications and experience for the job of Andhra Pradesh State Information Commissioner? Then have a look at APSIC K Sudhakar Rao’s official biodata: http://www.apic.gov.in/cvsudhakar.do
The “previous experience” of this 60-year-old engineering graduate is as follows:
1. Participated in student activities in college and school days.
2. Participated in social service like bringing up downtrodden and weaker sections of the society.
3. Very much interested in management of industries.
4. Also interested in development of Science and Technology.
Surely your experience has more substance?
The biodatas of the other two worthy gentlemen are only slightly better:
A Subba Rao: http://www.apic.gov.in/cvasubbarao.do
Dileep Reddy: http://www.apic.gov.in/cvdileepreddy.do
We are reliably informed that these gentlemen were relatively unknown in their own professional circles, but somewhat better-known in political circles. So, one may be forgiven for terming them as political stooges.
Sudhakar Rao continued to conduct himself as a congress worker even after being appointed as Information Commissioner. Here, you can read a juicy news story about the embarrassing activities of this Information Commissioner during by-elections in November 2006: http://www.tribuneindia.com/2006/20061122/nation.htm#6.
Conclusion: The reason why such people get appointed is because there is no transparent procedure for appointing Information Commissioners. And this alone is sufficient to kill the RTI act. Hence it is imperative to act now to ensure that the next round of appointments happen through a transparent procedure. Please hasten to apply for the post of APSIC. Act now to save RTI.
Warm Regards,
Madhav Vishnubhatta , Chennai, 98403 27303
Krishnaraj Rao, Mumbai, 98215 88114
sahasipadyatri.AT.gmail.com
Monday, June 7, 2010
Anti-Corruption Act Abridged & Simplified for RTI Activists
After many months and years of battling for information, activists sometimes succeed in uncovering documentary evidence of corruption. But then they are left wondering, “What next?” How to use these hard-won documents for seeking justice? There is a shortage of suitable forums for punishing corruption and criminal misconduct of public servants. Going to high court with writs and PILs is our last option, not our first; before we do that, we are required by law to exhaust all the other remedies, especially police complaints.
Read & understand SIMPLIFIED & ABRIDGED Prevention of Corruption Act 1988:
Originally 6045 words, we reduced it to 3,324 words, and made sentences short and easy.
After Bombay High Court’s order in September ‘09 order, The Prevention of Corruption Act (PCA) 1988 is available to us in Maharashtra. A home department circular that made it ineffective has been stayed, and will probably be quashed. PCA now enables us to register FIR with Anti Corruption Bureau (ACB) and start prosecuting corrupt officials. ACB has a special duty to take action in such matters.
The reader-friendly website of ACB Maharashtra gives plenty of contact details, and promises actions within a clear timeframe. Similar links are available for ACB in other states also. Worth trying!
Plus points of Prevention of Corrupt Act 1988:
1) It gives a wide scope to the concept of “public servant”. The term includes judges, arbitrators, election officials, employees of public corporations, selection committee members and anybody in the “service and pay of local authority”, office bearers of cooperative societies of various kinds, and recipients of government funding. It is applicable to Information Commissioners and other quasi-judicial authorities.
2) As PCA 1988 includes judges and judge-like authorities, it seems to nullify some of the wide protection to judges under Judges Protection Act 1985.
3) It also gives wide interpretation to “gratification other than legal remuneration” and “criminal misconduct”. Thus, it is not necessary to prove that a public servant actually sought a bribe in cash, or was actually given. It is enough to show that undue favour or disfavor (or undue service or disservice) were given or sought to be given.
4) It spreads the net wide by including abetment of the offences and conspiracy, and thereby includes private parties such as touts and dalals, besides superiors, colleagues and others who assist indirectly and collude in the corrupt practices.
5) It has provisions for granting immunity from prosecution to bribe-givers or bribe-takers who turn into whistle-blowers and assist in the prosecution.
6) It provides for a summary trial, and restricts the scope for appeals before higher courts.
7) Offences under this Act will be tried by a Special Judge with special powers to attach the offender’s properties etc.
8) It mandates hearings on a daily basis.
Limitation of PCA 1988: After FIR is registered and after the police investigation is complete, the prosecuting authority ie. Anti Corruption Bureau must seek approval from the State or Central Government, or from competent authority, to prosecute the corrupt official. According to ACB Maharashtra website, this approval requires three months… But that is not such a long time, is it?
My friends have a saying about such things: Lag gaya toh teer, nahin toh tukkah. We have everything to gain from trying to get an FIR registered under PCA 1988, and we have very little to lose. So let us try our best.
Warm Regards,
Krishnaraj Rao [sahasipadyatri.AT.gmail.com]
98215 88114
PS: We will shortly publish easy formats and guidelines for drafting complaints to Anti Corruption Bureau, for getting FIRs registered.
Read & understand SIMPLIFIED & ABRIDGED Prevention of Corruption Act 1988:
Originally 6045 words, we reduced it to 3,324 words, and made sentences short and easy.
After Bombay High Court’s order in September ‘09 order, The Prevention of Corruption Act (PCA) 1988 is available to us in Maharashtra. A home department circular that made it ineffective has been stayed, and will probably be quashed. PCA now enables us to register FIR with Anti Corruption Bureau (ACB) and start prosecuting corrupt officials. ACB has a special duty to take action in such matters.
The reader-friendly website of ACB Maharashtra gives plenty of contact details, and promises actions within a clear timeframe. Similar links are available for ACB in other states also. Worth trying!
Plus points of Prevention of Corrupt Act 1988:
1) It gives a wide scope to the concept of “public servant”. The term includes judges, arbitrators, election officials, employees of public corporations, selection committee members and anybody in the “service and pay of local authority”, office bearers of cooperative societies of various kinds, and recipients of government funding. It is applicable to Information Commissioners and other quasi-judicial authorities.
2) As PCA 1988 includes judges and judge-like authorities, it seems to nullify some of the wide protection to judges under Judges Protection Act 1985.
3) It also gives wide interpretation to “gratification other than legal remuneration” and “criminal misconduct”. Thus, it is not necessary to prove that a public servant actually sought a bribe in cash, or was actually given. It is enough to show that undue favour or disfavor (or undue service or disservice) were given or sought to be given.
4) It spreads the net wide by including abetment of the offences and conspiracy, and thereby includes private parties such as touts and dalals, besides superiors, colleagues and others who assist indirectly and collude in the corrupt practices.
5) It has provisions for granting immunity from prosecution to bribe-givers or bribe-takers who turn into whistle-blowers and assist in the prosecution.
6) It provides for a summary trial, and restricts the scope for appeals before higher courts.
7) Offences under this Act will be tried by a Special Judge with special powers to attach the offender’s properties etc.
8) It mandates hearings on a daily basis.
Limitation of PCA 1988: After FIR is registered and after the police investigation is complete, the prosecuting authority ie. Anti Corruption Bureau must seek approval from the State or Central Government, or from competent authority, to prosecute the corrupt official. According to ACB Maharashtra website, this approval requires three months… But that is not such a long time, is it?
My friends have a saying about such things: Lag gaya toh teer, nahin toh tukkah. We have everything to gain from trying to get an FIR registered under PCA 1988, and we have very little to lose. So let us try our best.
Warm Regards,
Krishnaraj Rao [sahasipadyatri.AT.gmail.com]
98215 88114
PS: We will shortly publish easy formats and guidelines for drafting complaints to Anti Corruption Bureau, for getting FIRs registered.
Friday, May 28, 2010
Payment of fee under the RTI Act 2005: scope of sub-section (3) of Section 7 of the Act
Payment of fee under the Right to lnformation Act. 2005 - scope of sub-section (3) of Section 7 of the Act
Posted: 26 May 2010 01:29 AM PDT
N0.12/9/2009-IR
Government of India
Ministry of Personnel, Public Grievances and Pensions
(Department of Personnel and Training)
******
North Block, New Delhi
Dated the 24th May, 2010
OFFICE-MEMORANDUM
Subject: Payment of fee under the Right to lnformation Act. 2005 - scope of sub-section (3) of Section 7 of the Act.
******
The Undersigned is directed to say that a question is raised from time to time whether a Public lnformation Officer (PIO) has power to charge fee under Section 7(3) of the RTI Act, 2005 in addition to fee prescribed under Sections 6(1), 7(1) and 7(5) of the Act.
2.Section 6(1) of the Act enables the Government to prescribe application fee and sub-sections (1) and (5) of Section 7 to prescribe fee in addition to application fee for supply of information. On the other hand sub-section (3) of Section 7 provides the procedure which a PI0 has to follow for realizing the fee prescribed under sub-sections (1) and (5) of the Section. Details of fees that can be charged by a public authority under the Central Government are contained in the Right to information (Regulation of Fee & Cost) Rules, 2005. The Rules or the Act do not give power to the PI0 to charge any fee other than prescribed in the Fee and Cost Rules. Attention in this regard is invited to following extracts from the common order passed by the Central Information Commission in Appeal No. CI/MA/A/2008/0185 (Shri K.K. Kishore Vs. Institute of Company Secretaries of lndia) and Complaint No.CIC/WB/C/2007/00943 (Shri Subodh Jain Vs. Dy. Commissioner of Police) :
"The Act under proviso to sub-section (5) of Section 7 also provides that fee prescribed under sub-sections (1) and (5) of Section 7 shall be reasonable and no such fee shall be charged from the persons who are below poverty line as may be determined by the Appropriate Government. The Government has already prescribed fees as deemed reasonable mandated under Sections 7(1) and 7(5) of the Act and in the view of the Commission, there is no provision for any further fee apart from the one already prescribed under Sections 7(1) and 7(5) of the Act".
"Thus, there is provision for charging of fee only under Section 6(1) which is the application fee; Section 7(1) which is the fee charged for photocopying etc. and Section 7 (5) which is for getting information in printed or electronic format. But there is no provision for any further fee and if any further fee is being charged by the Public Authorities in addition to what is already prescribed under Section 6(1), 7(1) and 7(5) of the Act, the same would be in contravention of the Right to Information Act. The "further fee" mentioned in Section 7(3) only refers to the procedure in availing of the further fee already prescribed under 7(5) of the RTI Act, which is "further" in terms of the basic fee of Rs.10/-. Section 7(3), therefore, provides for procedure for realizing the fees so prescribed".
3. The Commission, while delivering decision in above cases, recommended to this Department to make rules, for charging fee towards supply of information which may include fee for supply of books, maps, plans, documents, samples, models etc. that are priced and towards postal/courier charges for mailing information, when postal/courier charges are in excess of minimum slab prescribed by the Department of Posts and for other similar situations.
4. The Right to Information (Regulation of Fee & Cost) Rules, 2005 already provide provisions for charging of fee for giving information in diskettes or floppies or in the form of photo copy; for providing samples, models, printed material like books, maps, plans etc; and for inspection of records. The Government have, however, not considered it desirable to charge fee towards expenditure involved in mailing information or overhead expenditure etc. Nevertheless, supply of information in a form which would disproportionately divert the resources of the public authority is taken care of by Section 7(9) of the Act according to which information shall ordinarily be provided in the form in which it is sought but supply of information in a particular form may be refused if supply of information in that form would divert the resources of the public authority disproportionately.
5. It is hereby clarified that where a Public Information Officer takes a decision to provide information on payment of fee in addition to the application fee, he should determine the quantum of such fee in accordance with the fee prescribed under the Fee and Cost Rules referred to above and give the details of such fee to the applicant together with the calculation made to arrive at such fee. Since the Act or the Rules do not provide for charging of fee towards postal expenses or cost involved in deployment of man power for supply of information etc., he should not ask the applicant to pay fee on such account. However, wherever supply of information in a particular form would disproportionately divert the resources of the publicauthority or would be detrimental to the safety or preservation of the records, the PIO may refuse to supply the information in that form.
6. Contents of this OM may be brought to the notice of all concerned.
(K.G. Verma)
Director
Posted: 26 May 2010 01:29 AM PDT
N0.12/9/2009-IR
Government of India
Ministry of Personnel, Public Grievances and Pensions
(Department of Personnel and Training)
******
North Block, New Delhi
Dated the 24th May, 2010
OFFICE-MEMORANDUM
Subject: Payment of fee under the Right to lnformation Act. 2005 - scope of sub-section (3) of Section 7 of the Act.
******
The Undersigned is directed to say that a question is raised from time to time whether a Public lnformation Officer (PIO) has power to charge fee under Section 7(3) of the RTI Act, 2005 in addition to fee prescribed under Sections 6(1), 7(1) and 7(5) of the Act.
2.Section 6(1) of the Act enables the Government to prescribe application fee and sub-sections (1) and (5) of Section 7 to prescribe fee in addition to application fee for supply of information. On the other hand sub-section (3) of Section 7 provides the procedure which a PI0 has to follow for realizing the fee prescribed under sub-sections (1) and (5) of the Section. Details of fees that can be charged by a public authority under the Central Government are contained in the Right to information (Regulation of Fee & Cost) Rules, 2005. The Rules or the Act do not give power to the PI0 to charge any fee other than prescribed in the Fee and Cost Rules. Attention in this regard is invited to following extracts from the common order passed by the Central Information Commission in Appeal No. CI/MA/A/2008/0185 (Shri K.K. Kishore Vs. Institute of Company Secretaries of lndia) and Complaint No.CIC/WB/C/2007/00943 (Shri Subodh Jain Vs. Dy. Commissioner of Police) :
"The Act under proviso to sub-section (5) of Section 7 also provides that fee prescribed under sub-sections (1) and (5) of Section 7 shall be reasonable and no such fee shall be charged from the persons who are below poverty line as may be determined by the Appropriate Government. The Government has already prescribed fees as deemed reasonable mandated under Sections 7(1) and 7(5) of the Act and in the view of the Commission, there is no provision for any further fee apart from the one already prescribed under Sections 7(1) and 7(5) of the Act".
"Thus, there is provision for charging of fee only under Section 6(1) which is the application fee; Section 7(1) which is the fee charged for photocopying etc. and Section 7 (5) which is for getting information in printed or electronic format. But there is no provision for any further fee and if any further fee is being charged by the Public Authorities in addition to what is already prescribed under Section 6(1), 7(1) and 7(5) of the Act, the same would be in contravention of the Right to Information Act. The "further fee" mentioned in Section 7(3) only refers to the procedure in availing of the further fee already prescribed under 7(5) of the RTI Act, which is "further" in terms of the basic fee of Rs.10/-. Section 7(3), therefore, provides for procedure for realizing the fees so prescribed".
3. The Commission, while delivering decision in above cases, recommended to this Department to make rules, for charging fee towards supply of information which may include fee for supply of books, maps, plans, documents, samples, models etc. that are priced and towards postal/courier charges for mailing information, when postal/courier charges are in excess of minimum slab prescribed by the Department of Posts and for other similar situations.
4. The Right to Information (Regulation of Fee & Cost) Rules, 2005 already provide provisions for charging of fee for giving information in diskettes or floppies or in the form of photo copy; for providing samples, models, printed material like books, maps, plans etc; and for inspection of records. The Government have, however, not considered it desirable to charge fee towards expenditure involved in mailing information or overhead expenditure etc. Nevertheless, supply of information in a form which would disproportionately divert the resources of the public authority is taken care of by Section 7(9) of the Act according to which information shall ordinarily be provided in the form in which it is sought but supply of information in a particular form may be refused if supply of information in that form would divert the resources of the public authority disproportionately.
5. It is hereby clarified that where a Public Information Officer takes a decision to provide information on payment of fee in addition to the application fee, he should determine the quantum of such fee in accordance with the fee prescribed under the Fee and Cost Rules referred to above and give the details of such fee to the applicant together with the calculation made to arrive at such fee. Since the Act or the Rules do not provide for charging of fee towards postal expenses or cost involved in deployment of man power for supply of information etc., he should not ask the applicant to pay fee on such account. However, wherever supply of information in a particular form would disproportionately divert the resources of the publicauthority or would be detrimental to the safety or preservation of the records, the PIO may refuse to supply the information in that form.
6. Contents of this OM may be brought to the notice of all concerned.
(K.G. Verma)
Director
Wednesday, May 26, 2010
CIC to approach SC as ICs refuse to work
Raminder Singh (www.mynews.in)
India's FoI watchdog the Central Information Commission "CIC" has decided to approach the Indian Supreme Court next week against a recent order of the Delhi High Court which has caused at least 3 of its members to inform the Chief Information Commissioner Wajahat Habibullah that they shall not be hearing cases from next week as this would amount to contempt of court.
For complete news please visit:
http://www.mynews.in/News/CIC_to_approach_SC_as_ICs_refuse_to_work_N57918.html
India's FoI watchdog the Central Information Commission "CIC" has decided to approach the Indian Supreme Court next week against a recent order of the Delhi High Court which has caused at least 3 of its members to inform the Chief Information Commissioner Wajahat Habibullah that they shall not be hearing cases from next week as this would amount to contempt of court.
For complete news please visit:
http://www.mynews.in/News/CIC_to_approach_SC_as_ICs_refuse_to_work_N57918.html
Sunday, May 23, 2010
CIC exceeding its powers: Delhi High Court
A Division Bench of Delhi High Court, comprising of Justices B D Ahmed and Veena Birbal, in a historic judgement on Friday, the 21.05.10, came down heavily on CIC and its chief on its order against VC DDA after he failed to appear before it with regard to an RTI matter.
CIC had passed orders dated 22.09.09 on a complaint filed by Mr Sarabjit Roy , Advocate, in 2005 requesting for directions to DDA to fulfil its obligation to provide info required to be provided suo motto u/s 4 of RTIA05. CIC vide its orders dated 25.02.06 had directed PIO DDA to fulfil its obligation for suo motto declaration of info u/s 4 of RTIA05 within 30 days. Thereafter, Mr S Roy filed another complaint against DDA saying that CIC orders dated 25.02.06 had not been complied with by then. DDA thereafter uploaded voluminous info on its website. During hearing of Mr S Roys complaint on 03.09.09, CIC noted that voluminous info had since been uploaded on DDA website but it was not properly organized and was causing more confusion. CIC in its orders dated 22.09.09 directed VC DDA to be present personally at the next hearing in this matter and formed a committee to look into the allegation. Aggrieved by these orders, DDA filed a writ petition u/s 226 of Constitution of India requesting for (i) quashing of CIC Management Regulations 2007 on the ground that they were ultravires of RTIA05, (ii) quashing of Chap 4 with specific emphasis on regulation 20 of RTIA05 which made provision for conduct of an enquiry, (iii) expressed grief at the fact that VC DDA was required to be present at the hearing by CIC and that adverse comments were made against him when he could not thus be present. The petitioner pointed out that CIC did not have plenary powers which were vested with High Courts and Supreme Courts and had only the power to summon and enforce attendance for giving evidence.
“This is a case where the Central Information Commission and Chief Information Commissioner have travelled beyond their boundaries of power and have thereby transgressed the provisions of the very Act which created them,” said the Bench. It quashed the CIC management Regulations 2007, set aside the Commission’s order appointing an enquiry committee, comprising Director Ministry of Urban Development, Shujata Chaturvedi, Dunu Roy from Hazards Centre, an NGO, and Pankaj KP Shreyaskar, Joint Registrar, CIC to enquire into servicing of RTIA05 by all wings and sections of DDA. and set aside the CIC’s September 2009 order against VC DDA saying “no adverse inference could have been drawn for the absence of VC DDA. The Bench noted that CIC could call any person to be present in the hearing before it for the purposes of giving evidence—oral or written or for producing any document. The VC DDA was however not summoned for either giving oral evidence or written evidence or to produce any document or things in his possession. He was directed to be present for other reason, that power is not there with the CIC.”
In regard to suo motto declaration of info by public authorities, the bench noted that section 4 merely sets out the obligations of public authorities, it does not set out the machinery to enforce the implementation of these obligations.
It is well known that most public authorities have still not complied with the requirements of sec 4 of RTIA05. Its implementation will now become more difficult if CIC continues to have such casual attitude in this matter. In my opinion, a proper way to enforce sec 4 of RTIA would be for CIC to consider PIO as the prime nodal authority to ensure it is done and penalize him if it is not done. It is not necessary to call Heads of Offices for hearing in this matter (except for evidence to verify the statement of PIO, if any) and to constitute committees for this purpose. I think the judgement is very good and should be an eye openor for the very casual manner in which CIC is working for implementation of RTIA05. Instead of punishing the defaulter PIOs for non compliance of sec 4 of RTIA05, CIC tries to confuse the matter by appointing such committees to look into the allegations and calling Heads of Offices during hearing, which are both truly outside his powers.
Courtesy
M K Singhal
CIC had passed orders dated 22.09.09 on a complaint filed by Mr Sarabjit Roy , Advocate, in 2005 requesting for directions to DDA to fulfil its obligation to provide info required to be provided suo motto u/s 4 of RTIA05. CIC vide its orders dated 25.02.06 had directed PIO DDA to fulfil its obligation for suo motto declaration of info u/s 4 of RTIA05 within 30 days. Thereafter, Mr S Roy filed another complaint against DDA saying that CIC orders dated 25.02.06 had not been complied with by then. DDA thereafter uploaded voluminous info on its website. During hearing of Mr S Roys complaint on 03.09.09, CIC noted that voluminous info had since been uploaded on DDA website but it was not properly organized and was causing more confusion. CIC in its orders dated 22.09.09 directed VC DDA to be present personally at the next hearing in this matter and formed a committee to look into the allegation. Aggrieved by these orders, DDA filed a writ petition u/s 226 of Constitution of India requesting for (i) quashing of CIC Management Regulations 2007 on the ground that they were ultravires of RTIA05, (ii) quashing of Chap 4 with specific emphasis on regulation 20 of RTIA05 which made provision for conduct of an enquiry, (iii) expressed grief at the fact that VC DDA was required to be present at the hearing by CIC and that adverse comments were made against him when he could not thus be present. The petitioner pointed out that CIC did not have plenary powers which were vested with High Courts and Supreme Courts and had only the power to summon and enforce attendance for giving evidence.
“This is a case where the Central Information Commission and Chief Information Commissioner have travelled beyond their boundaries of power and have thereby transgressed the provisions of the very Act which created them,” said the Bench. It quashed the CIC management Regulations 2007, set aside the Commission’s order appointing an enquiry committee, comprising Director Ministry of Urban Development, Shujata Chaturvedi, Dunu Roy from Hazards Centre, an NGO, and Pankaj KP Shreyaskar, Joint Registrar, CIC to enquire into servicing of RTIA05 by all wings and sections of DDA. and set aside the CIC’s September 2009 order against VC DDA saying “no adverse inference could have been drawn for the absence of VC DDA. The Bench noted that CIC could call any person to be present in the hearing before it for the purposes of giving evidence—oral or written or for producing any document. The VC DDA was however not summoned for either giving oral evidence or written evidence or to produce any document or things in his possession. He was directed to be present for other reason, that power is not there with the CIC.”
In regard to suo motto declaration of info by public authorities, the bench noted that section 4 merely sets out the obligations of public authorities, it does not set out the machinery to enforce the implementation of these obligations.
It is well known that most public authorities have still not complied with the requirements of sec 4 of RTIA05. Its implementation will now become more difficult if CIC continues to have such casual attitude in this matter. In my opinion, a proper way to enforce sec 4 of RTIA would be for CIC to consider PIO as the prime nodal authority to ensure it is done and penalize him if it is not done. It is not necessary to call Heads of Offices for hearing in this matter (except for evidence to verify the statement of PIO, if any) and to constitute committees for this purpose. I think the judgement is very good and should be an eye openor for the very casual manner in which CIC is working for implementation of RTIA05. Instead of punishing the defaulter PIOs for non compliance of sec 4 of RTIA05, CIC tries to confuse the matter by appointing such committees to look into the allegations and calling Heads of Offices during hearing, which are both truly outside his powers.
Courtesy
M K Singhal
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