Forming Co Operative society now fundamental right With status of local self Government, under ambit of RTI act

With the enactment of the 97^th amendment to the Constitution of India and its inclusion in Part IX of the Constitution, formation of cooperative societies has become one of the fundamental rights of an Indian citizen. Cooperative societies have thus come under the ambit of The Right to Information Act. Cooperative societies normally include cooperative banks, credit societies, sugar factories, distilleries, handloom-power loom factories, distilleries, milk producing societies, water supply societies etc. Henceforth, all such institutions will have to appoint public information officers, appellate authorities and comply all the provisions of the RTI act. This is the most revolutionary event in the history of our country in the recent past.

Normally there are three sectors of industries; Public, private and cooperative sectors. The first one is wholly owned by a state or the central government and the governments have complete control over its investments and management and it is accountable to the governments as well as to the public. Although the private sector abides by the laws, rules and regulations of the governments it is not answerable or accountable to the governments or the public for the losses/profits or management. It is accountable only to its owners or shareholders as per the law of the land. The cooperative sector was a blend of the public and private sectors. So far, it was enjoying the facilities available to the public sector such as loans, share capital from the state etc. but was not accountable to the state or the public. With the 97^th amendment, the scenario has changed and the cooperative sector is now accountable to the state and the public.

Article 19 of the Constitution of India protects certain fundamental rights of the citizens. All citizens have the right to freedom of speech and expression, to assemble peaceably and without arms, to form associations or unions, to move freely throughout the territory of India, to reside and settle in any part of the territory of India; and to practise any profession, or to carry on any occupation, trade or business. Now forming a cooperative society is also fundamental right. Not only  that , as per article 43B of Part IV it is now the duty of the States to promote voluntary formation, autonomous functioning, democratic control and professional management of cooperative societies to encourage economic activities of cooperatives which in turn help progress of rural India.

Part IX of the Constitution consists local self-governments. Part IX is about panchayats, Part IX B is about municipalities and now with insertion of Part IX C, cooperative societies have acquired the status of local self-governments. Correspondingly, cooperative societies have come under the RTI Act.

So far, there was no clarity about the applicability of the RTI Act to cooperative societies. Several information commissions and courts had given contradictory verdicts on this matter. Cooperative societies were out of the ambit of the RTI Act because it was not an ‘authority’ or ‘body’ or an ‘institution’ of self-government established or constituted by or under the Constitution. Hence, attempts to bring a cooperative society under the RTI Act, claiming it to be an ‘institute’, a ‘body owned, controlled or substantially financed by notification issued or order made by the appropriate Government’ failed. In addition, authorities of these institutes always took the stand that they did not come under the RTI act.

In reality, considerable part of the country’s economy is occupied by the cooperative sector. It is said that about 1/6^th of this part is of Maharashtra. A major part of Maharashtra politics is also influenced by cooperative sector. The scale of illegalities, scams and corruption in this sector is also high. The cooperative sector including banks and societies block substantial government funds going into hundreds of crores.

Anarchy in this sector is so high that current statistics of cooperative societies in the state and the country are not easily available. The statistics of the department of cooperative societies of Maharashtra in 2009-10 show that there were 2,18,320 cooperative societies in Maharashtra and the total membership of these societies was five crores forty-two lakhs. One estimate of the number of societies is at about 2,30,000 with a membership of about six and half crores. For the entire country, this number could go up to six and half lakh societies with thirty crores members.

A giant sector such as this was uncontrolled and unaccountable till now. One can hope that this sector will move in a positive direction after the 97th amendment to the constitution. After the amendment was enacted, a period of one year was given to the States to amend as well as repeal existing provisions of law to bring in line with the new provisions in the Constitution. Usually, State Assemblies approve such amendment. However, as the assembly was not in session, the Government of Maharashtra introduced an ordinance on 15 February 2013 and thus these amendments have now become law.

The highlights of the Maharashtra Cooperative Societies Act and Rules after amendments are:

(i)                      Incorporation of cooperative societies on the principles of voluntary formation, democratic member control, member economic participation and autonomous functions;

(ii)                    Conduct of election of a cooperative society by an independent electoral authority;

(iii)                  A fixed term of five years for the office bearers of the cooperative society;

(iv)                  Supersession of Board of cooperative society for a period of not exceeding six months;

(v)                    Independent professional audit of the cooperative societies;

(vi)                  Convening of the General Body meeting of every cooperative society within a period of six months of the close of the financial year;

(vii)                Access to every member of the society to the books, information and the accounts of the cooperative society;

(viii)              Filing of the returns by every cooperative society within six months of the close of every financial year;

(ix)                  Free, fair, impartial and timely elections of cooperative societies by independent body .

(x)                    Audit of the cooperative societies to be carried by the auditors from the government approved panel of auditors or firms;

(xi)                  Maximum number of 21 Directors to be applicable to all cooperative societies irrespective of their size with two seats reserved for women; and

(xii)                Co-opted members not to be eligible to be elected as office-bearers of the Board.

Also there are provisions of penalty for consistent defaults, acting against the interest of the institution, deadlock in the board of directors, not ordering elections within specified time, corruption, irregularities in duty, deliberately giving false information, disobeying orders of authorities etc.

P.S.

Before 1992, panchayats  and municipalities were also not bodies established by or under the Constitution. However, that did not mean that there were no panchayats or municipalities. These institutes as well as laws were very much in existence. But due to the autonomous status. their functioning was arbitrary. They did not acquire the status and dignity of viable and responsive people's bodies due to varied reasons including   absence of regular elections, prolonged supersession, insufficient representation of the weaker sections etc.

Hence, to give certainty, continuity, and strength to panchayat raj with 73^rd amendment, Part IX was inserted in the Constitution. Later as Urban Local Bodies were not able to perform effectively as vibrant democratic units of self-government, with the 74^th Amendment, Part IX B was inserted to give municipalities a status and dignity. Now with the 97^th Amendment, Part IX B has been inserted to give cooperative societies a status of local self-government.

As per RTI Act section 2 (h) "public authority" means any authority or body or institution of self-government established or constituted—

(a) by or under the Constitution;

(b) by any other law made by Parliament;

(c) by any other law made by State Legislature;

(d) by notification issued or order made by the appropriate Government,

 and now as per section 2 (h) (a) of RTI act, Cooperative Societies have become an “authority” or “body” or “institution of self-government” established or constituted by or under the Constitution and hence are under the ambit of the RTI Act.

Government can be pro - people - Andhra Pradesh experience

 Participants of a recent convention in Hyderabad of Right to Information (RTI) activists were amazed by the pro – people attitude of government servants of Andhra Pradesh. Normally, government officers are seen to prefer to stay away from RTI and activists working for it. In the state of Maharashtra almost all officers seem to believe that they belong to the government so need not attend events related to RTI as they are not related to it. On the contrary officers in Andhra Pradesh seemed to be of a view that it was their responsibility to implement the RTI and they should communicate with social activists to remove errors in the implementation. And they just don't have that policy but also they are seen to implement it.

 It does not mean that all is well in Andhra Pradesh. It also does not mean that there is total eradication of corruption. It also does not mean there are no complaints of officers about misuse of RTI. There are some complaints but officers do not make an issue of it. There is more emphasis on grievance redressal of RTI applicants. So, they do not seem to have given overwhelming importance to minor issues like word limit in RTI application or only one subject in one application. A committee has been formed under chairmanship of the state chief secretary to ensure proper implementation of RTI and to solve problems related to it. Interestingly, two NGOs have been included in the committee as members. A cell has been formed to ensure maximum use of RTI so that good governance and transparency would be encouraged as well as accountability would be fixed. The cell has been entrusted with communicating with NGOs, media, other institutes and personalities regarding RTI. It appears that there is better implementation of good governance and proactive disclosure of information by the government.

A national convention was organized in Hyderabad by National Campaign for People's Right to Information (NCPRI) in the campus of Andhra Pradesh Academy of Rural Development (APARD). Although the convention was organized by NCPRI, officers of Andhra Pradesh were proactively helping in its organization as if they were the hosts. APARD is an institute where training about rural development is imparted. The institute imparts training to 2.6 lakh people's representatives and about fifty thousand government officers so that there rural poor would benefit from government schemes.

 The convention of activists was attended by former central chief information commissioner (CIC) Wajahat Habibullah, former chief election commissioner James Lingdoh, former chief state information commissioner of Andhra Pradesh Jannat Hussain, rural development minister of AP D. M. Varaprasad Rao, additional chief secretary of union rural development ministry S. M. Vijayanand, principal secretary of rural development department of AP Reddy Subramaniam and APARD commissioner K Chandramauli. Directors of social audit departments of Madhya Pradesh, Uttar Pradesh, Gujarat, Karnataka and Orissa were present for the convention. It was also attended by social audit tribunals of Manipur, Kerala and Gujarat. About 300 activists from 19 states were present for the convention.

 Activists were pleasantly surprised by the pro – people approach of government officers of Andhra Pradesh. But they were more impressed by the practice of doing social audit of government works. Social audit means audit of government schemes or projects done by beneficiaries or those concerned regarding quality of work, its utility, expenditure and accountability. Andhra Pradesh is the only state in the country which has a special law for social audit of government schemes. The Act is called 'Andhra Pradesh Promotion of Social Audit and Prevention of Corrupt Practices' and it is in effect since 2011. There is a provision of imprisonment up to two years of the guilty for lacuna in the work. It is noteworthy that social audit report is read publicly in presence of all concerned and the accused are given an opportunity to present their case.

 Social audit does not mean only a fault finding mechanism. Thanks to it common man gets directly associated with government work and the belief in the democracy is deepened. It helps in empowerment of common man and ensures transparency in the work. As the social audit reports are read in village meetings, all records, ground reality and utility of work are reviewed threadbare. So, there is no scope for mistakes. After the law was implemented in Andhra Pradesh, misappropriation of Rs. 99.87 crore in implementation of various works under Mahatma Gandhi National Rural Employment Guarantee Act (MNREGA) was exposed. Out of that amount of Rs. 21.76 crore was recovered. Irregularity in work of 16688 employees was found. On the basis of social audit report, 3111 employees were removed from service, 561 employees were suspended, 229 FIRs were filed and divisional inquiry was launched against 1557 employees. This statistics is impressive.

 Although all these developments took place due to social pressure, one should not ignore positive attitude of rulers and government officers. It is widely believed that rulers and officers of Indian Administrative Services are the same everywhere, but then how come they are public oriented only in Andhra Pradesh and why it is not the case anywhere else? Attending this convention or such other conventions can not be a criterion of being pro people. But it helps to know what is happening elsewhere and where are we lacking. One can make improvements accordingly. In that respect, Maharashtra officers were conspicuous by their absence. Can't help, it is a matter of attitude.

Literary geniuses of Mantralaya, a case of wasted talents

State Governments all over India keep issuing numerous circulars. They are the same everywhere. Never implemented. It becomes a case of “you tell me the person and I shall tell you the circular”, thus putting into action only those circulars, which benefit the officers or their cronies. Others are thrown in the waste paper basket and none feels bad or sad about it. The circulars are cleverly drafted. If some issue is to be evaded, then the choice of words is so 'creative' as to abash even a litterateur. Perhaps these circulars would pass off as pieces of excellent literary talent.

Here’s how. Consider the case of Maharashtra. Many circulars were issued from Mantralaya of Maharashtra since 1996 to express commitment to eradicate corruption and illegalities. Right to Information (RTI) Act was introduced soon afterwards. There was a provision for stringent action against illegalities exposed through the use of RTI. So far, 13 circulars have been issued for action against those involved in corruption and illegalities. These circulars are well drafted comparable with the masterpieces in literary art! But there has been no action as a result of a single circular. If you query officers about any problem, they immediately draw attention to these thirteen circulars and boast about their commitment to eradicate corruption and illegalities.

The Government has issued a large number of circulars for better implementation of the RTI Act but there has not been any implementation based on these circulars. Of course, there never was any possibility of execution because the drafting was so skilful that the officers, by reading between the lines, got the message that the circulars are not for implementation.

As per section 25 (3) of RTI Act, 2005, public authorities are supposed to furnish following information in the form of a report to the state information commission every year.

Each report shall state in respect of the year to which the report relates –

(a) The number of requests made to each public authority;

(b) the number of decisions where applicants were not entitled to access to the documents pursuant to the requests, the provisions of this Act under which these decisions were made and the number of times such provisions were invoked;

(c) the number of appeals referred to the Central Information Commission or State Information Commission, as the case may be, for review, the nature of the appeals and the outcome of the appeals;

(d) particulars of any disciplinary action taken against any officer in respect of the administration of this Act;

(e) the amount of charges collected by each public authority under this Act;

(f) any facts, which indicate an effort by the public authorities to administer and implement the spirit and intention of this Act;

(g) recommendations for reform, including recommendations in respect of the particular public authorities, for the development, improvement, modernisation, reform or amendment to this Act or other legislation or common law or any other matter relevant for operationalising the right to access information

A circular was issued in January 2006 instructing that the above information shall be provided to the information commission by 15^th of every month. Some formats were prepared for providing this information. But no format was prepared for sub section (g) above while the same information is provided every year for sub section (f) as nobody makes any effort “to administer and implement the spirit and intention of this Act”! No format was prepared for providing information about disciplinary action against any officer for non-implementation of RTI Act. So, the information commission does not get any follow-up on its orders of punishments by fine and disciplinary actions. The commission has sent many letters to the state government but the response has just been to issue more circulars.

The story about implementation of section 4 of RTI Act is no different. The State Information Commission has written many letters to the state government about non-implementation of Section 4. The state government had issued many circulars in this regard. But nothing concrete happened. So, the then chief information commissioner issued a letter to the state government that the commission would take a serious note if the omission continues. Accordingly, the state government also took 'serious' cognizance of this letter and issued a circular in January 2011 saying that department heads should take disciplinary action against the concerned officers if Section 4 was not implemented. The message was stern. But the babus in Mantralaya folded the circular and attached it to the file in Mantralaya. Ultimately no action has been taken against any one and implementation of Section 4 languishes as ever.

On taking over the reins of office, the incumbent chief state information commissioner Ratnakar Gaikwad sent a letter on June 18^th, 2012 giving a list of steps not taken regarding RTI Act expressing unhappiness that these steps were not taken even after seven years of the introduction of RTI Act, 2005. The state government routinely issued a circular on August 22^nd, 2012 asking the public authorities to take action as per suggestions by the chief state information commissioner and review its compliance regularly. But there is still no action!

As per section 20 (1) of the RTI Act, information commission punishes the public information officer (PIO) with a fine if, in its view, the PIO has refused to accept an application for information, if he has not provided information by the stipulated time period or deliberately provided wrong, incomplete or misleading information or destroyed the information asked for or in any way created hurdles in providing information. Information commissions have levied such fines in many cases so far. But no information is provided to the commission whether the fines have been actually recovered. Even the commission’s orders for compliance are being ignored. Ratnakar Gaikwad has sent a letter to the state government on August 17^th, 2012 expressing his displeasure and asking the government to issue orders to the public authorities to recover fines imposed upon the PIOs. The government immediately issued instructions under another related circular on September 4^th, 2012.  But there is no visible action on this circular to obey previous circulars!.

P.S.

As per section 20 (1), the amount of fine is supposed to be recovered from salary of the officers concerned and it is expected that the information commission should demand a compliance report in respect of fines imposed or disciplinary actions against PIOs or others. There is a greater chance of compliance if the information commissions ask for compliance reports. Also, it is mandatory for public authorities under Section 25 (3) to provide information to the information commission about the amounts recovered from fines. Accordingly a note is to be made in the annual report of the central information commission. But Maharashtra State Government does not provide this information. In fact every public authority is supposed to report to the information commission under section 25 (3) (e) about recovery of fines. Such information is provided at the Central Government level but not in the state of Maharashtra. Why? Is RTI Act 2005 not applicable to Maharashtra or is Maharashtra under a different RTI Act?

Generally, information commissions order recovery of fines from salary, which is the appropriate manner. The state chief information commissioner has informed the state government accordingly. However, in Pune Bench of the state information commission, public information officers are instructed to deposit the amount of fines directly in the government treasury. The Pune Bench sends a copy of the order to the immediate senior officers concerned for compliance of the order. However there is no verification whether the PIO has actually paid the fine amount himself or 'someone' else deposited it on his behalf. And the question of senior officers concerned sending a compliance report does not arise because it is not asked for. After a fuss was made about it, it is reported that the Pune Bench would ask for a compliance report separately.