Friday, May 31, 2013

Last nail in the coffin of RTI in Maharashtra.

Last time they stealthily amended the RTI rules , Now they are trying to stealthily  frame appeal procedure rules. In last post, we read the proposed appeal procedure rules. There are several objectionable things in these rules. But most dangerous part is annexure "A" in which the appeal is to be submitted demands , Declaration that the case relating to Information sought for, has not been filed previously/pending with any court/any Authority. If rules come in to existence with this clause that will be the last nail in the coffin of RTI in Maharashtra. With this clause, nobody will be eligible to file RTI application in Maharashtra.

Most of the people use RTI to obtain information, documents related to their work or status of their work. That means People demand information related to their case pending with some authority.If this clause is to be applied then no body will be eligible to obtain information from any public authority. RTI act does not prevent anybody from obtaining information even if the case is pending before any court. Then why Maharashtra government is trying to introduce such type of clause?

These rules also say that while filling second appeal one copy of the appeal or Petition shall also be directly sent to the concerned Public Information (PIO) first appellate authority (FAA) and third party by the appellant.

Why this burden of sending copy of second appeal is being placed on appellants?. As far as public authorities (PA) in Maharashtra are concerned 95% public Information officers (PIO) and appellate authorities do not even mention their or appellate authorities name or address on orders. In addition, how would appellant know about name and address of third party? Third party is actually involved or not? Even if appellant knows the names and addresses of all of these. Why will they accept or receive copy of appeal when they know the consequences of second appeal?

If PIO, FAA, and third party do not accept the copy of appeal, what remedy the appellant has. He will have to file complaint under section 18 of RTI act. That procedure is also very difficult and even if such complaint is filed there very remote possibility that decision of it will be in favour of appellant. Even if information commissioner (IC) commissioner give decision if favour of appellant it will be to accept the appeals only, nothing else. That will be  a very time consuming process.

These rules also state that notice of hearing to the appellant, state public information officer, first appellate authority or the third party in any should be served in any of the following modes, namely
i. service by the party it self
ii . by hand delivery ( dasti) through process delivery
iii. head of the office or department
iv. by displaying  program of the hearing on notice board
v. by displaying the programme of hearing on website;
vi. By registered post with acknowledgement due

Taking into consideration lethargy of most of the commissions clause ( iv ) is likely to be misused. The notice of hearing must be duly served. All the parties must actually receive it.Suppose Information commissions choose only to  display program of the hearing on notice board. Then how would parties know about the hearing ? do these rules expect every party to visit commission's office regularly?.

RTI act does not demand any information from applicant except persons name and contact address. however, these rules want appellant to furnish information related to  name of father / husband , appellants service /business and full address that too on oath . On the ground, that the RTI applicants are being threatened this information is unwarranted.

Thursday, May 30, 2013

Proposed appeal procedure rules A New threat for RTI in Maharashtra.

           Seven years after the introduction of  RTI act the government of Maharashtra is planning to bring appeal procedure rules . These will be called  The Maharashtra State Information Commission (Appeal Procedure) Rules, 2012. Some provisions that may be introduced in these rules are big threat for Right To information in Maharashtra.High lighted point are big threat to RTI .In next blog I will write about how these points are harmfull for RTI.

Maharashtra State Information Commission (Appeal Procedure) Rules, 2012.

l. Short title. - These rules may be called the Maharashtra State Information Commission (Appeal Procedure) Rules, 2012.

2. Definitions - In these rules, unless the context otherwise requires,-
(a) “Act” means the Right to Information Act, 2005 (22 of 2005);
(b_) “Commission” means the Maharashtra State information
(c) “section” means section of the Act;
(d) words and expressions used in these rules but not defined, shall
have the same meanings respectively, assigned to them, in the Act.

3. Memorandum of appeal.  (1) any person aggrieved by an order Of the appellate authority under subsection (1) of section 19 may, within Ninety days from the time on which the received decision have helm made by first appellate authority or was actually received. Prefer a second appeal to the State information commission on plain paper in the format given in ANNEXURE "A" appended with these rules. Which shall be accompanied by An appeal fee of rupees twenty by way of court fee stamp. The memorandum Of appeal shall be signed by the appellant the contents as mentioned in ANNEXURE "A" shall be typed or legibly handwritten in double spacing. Appeal shall be filed either by post or in person. One copy of the appeal or Petition shall also be directly sent to the concerned Public Information first appellate authority and third party by the appellant.
(2) If the memorandum of appeal is received by post, the appellant maybe informed accordingly to furnish the additional particulars or documents, if necessary.
4. Accompaniments Io memorandum of appeal. - Every memorandum of appeal made to the Commission shall be accompanied by the following documents, namely:-
(I) copy of the application made to the State Public Information Officer;
(ii) self-attested copies of the order, letter, documents, or correspondence received from the State Public Information Officer and the first appellate authority;
(iii) copy of the first appeal;
(iv) copy of order if any, given by the first appellate authority against which the appeal is being preferred;
(v) date-wise list (Index) of the documents referred to in the appeal;
(vi) affidavit in the format given in Annexure “B” affixed with two rupees court fee stamp;
(vii) any other document, as deemed fit by the appellant.

5. Scrutiny of memorandum of appeal :- The officer authorized by the Commission shall examine the memorandum of appeal, or complaint as per the section (l) of section 18 of the Act and scrutinize the accompaniments appended  to the memorandum  of appeal or complaint and shall inform accordingly  to the appellant  about the shortcomings, if any.

6. Service of the notice by commission  (I) Notice to fix the hearing of the appeal is to be issued (as  far as possible at least fifteen days, before the date of hearing  fixed by the commission and be served to the appellant, state public information officer , first appellate authority or the third party in any . in any of the following modes , namely
i. service by the party it self
ii . by hand delivery ( dasti) through process delivery
iii. head of the office or department
iv. by displaying  program of the hearing on notice board
v. by displaying the programme of hearing on website;
vi. by registered post with acknowledgement due

7. Documents to be filed by respondents. - The concerned respondents shall file the following documents for perusal of the Commission;
(I) copy of the application made by the applicant for seeking! ‘
information from the State Public Information Officer; I
(ii) copies of the correspondence made with the applicant from the date of receipt of the application till the date of disposal of the application, with copies of postal proof or outward register or any  other proof;
(iii) copy of the first appeal; /
(iv) say of the Assistant Public Information Officer (if applicable)/or
Public Information officer and first appellate authority about the
grounds of the appeal;
(v) copy of the order of the decision passed by the first appellate authority;
(v) list of the documents attached serially and date-wise:
(vii) any other document as deemed fit by the respondents.

8. Personal presence of appeIIant. (I) The appellant or complainant, as the case may be, may at his discretion, be present in person or through his duly authorized representative in an exceptional case with the approval of the State Information Commission at the time of hearing of the appeal or complainant by the Commission or he may opt not to be present. If for any unavoidable circumstances it is not possible for him to remain present on the the date of hearing the hearing of the appeal or complaint, he Should inform the reasons thereof to thecommission, well in advance of the date of hearing
(2) Where the commission is satisfied that the circumstances  exists to which the appellant or complainant, as the case may be. is unable to attend  the hearing of the Commission. then. the commission may give the appellant or complainant as the case may be another opportunity of being heard before a final decision is taken or take any other, appropriate action as it may deem fit deem fit.
(3) The appellant or the complainant, as the case may be, may seek the assistance of any person with the prior approval of the Commission, in the process of the appeal while presenting his points.

9. Procedure for hearing of appeal.- (1) In deciding the appeal or complaint, the Commission may,-
(i) hear orally or take written evidence on oath or on affidavit from the concerned or interested persons; '
(ii) peruse or inspect the documents, public records, or copies thereof;
(iii) inquire through an authorized officer further details or facts;
(iv) hear the State Public information Officer or the State Assistant Public information Officer. It shall not be necessary for the first appellate authority to be heard in person, unless such authority desires a personal hearing. A written statement shall be filed by
the first appellate authority;
(v) call upon the first appellate authority to file all proceedings regarding the first appeal for perusal of the Commission;
(vi) hear the third party, if, involved in the matter;
(vii) receive evidence on affidavits from the State Public Information Officer, the State Assistant Public information  or such senior officer against whom the complaint or appeal lies and also receive evidence on affidavit from the third party. if any.

10. Calendar of cases.- (1) The Commission shall. as far its possible take up the appeals or complaints chronologically and draw up the calendar for hearings and decide the case according to the calendar.
(2) Taking into consideration the pending appeals and complaints the Commission. the Commission may  consider special appeal disposal programme of the pending appeals and complaints.

11. Order of the Commission - (1) the order of the commission shall be
pronounce in open proceedings and and be in writing. the  copies of such orders
shall be duly authenticated by the registrar or any other officer authorised by the commission for this purpose
(2) Copies of the orders shall be delivered to all the parties to the
proceeding, by register post acknowledgement due or in person if the parties
choose to do so.

(see rule 3)
Affix here Court Fee Stamp of Rs. 20/-.
Second Appeal under section 19 (3) of the Right to Information Act, 2005.
From 1 ........................................... ..
(Appellant’s name and address,
With phone Number/Mobile Number, if any
To : ............................................... ..
(Name / designation / address of the appellate authority)
(l) Full name of the Appellant '
(2) Address of the Appellant
(3) Particulars of the State Public
Information Officer/Assistant Public
Information Officer
(4) Particulars of the first appellate authority
(5) Date of the receipt of the order Appealed against, including number, if Any
(6) Last date of filling appeal
(7) The grounds for appeal with reasoning :
(8) Particulars of the information
(I) Nature and subject matter of the Information required.
(ii) Name of the Office or Department to which the Information relates.
(9) Prayer or relief sought
(10) Verification by the Appellant or Complainant
(11) Declaration that the case relating to Information sought for, has not been filed previously/pending with any court/any Authority.
(l2) Any other information, which is necessary to decide appeal

(see rule 4)
Affidavit to be submitted to State Information Commission with application of Appeal under Section 19(3) of Right to Information Act, 2005. (affix Rs 5 court fee stamp).

I; Shri. / Smt. ----------------------------------------------- --(full
name of applicant) son / daughter ./ wife of Shri ---------------------- ~-
--------------------- --(name of father / husband) age- yrs., service /
business --------------------------------------------- -- residing at ------- --
------------------------------------------------------------------------ -- (full
address) hereby affirm that the information given / facts noted in
the Second Appeal is / are true & correct. No fact is hidden, neither
any information is false. The Second Appeal is based on the
original application (under rule 6 of the Right to Information Act,
2005) dated ---------- -- & no order is passed earlier on it by any
Maharashtra State Information Commissioner. I have submitted the
Second Appeal before this bench only & no other appeal was / has
been submitted before any other State Information Commission.
Signature 1
(Applicant’s full name) 

Date and Place

Thursday, May 23, 2013

Aam Admi Party and Nav Bharat Party a ray of hope for NEW INDIA

Several new political parties are being ready to contest next Loksabha elections of India. No doubt every party claims that they will win considerable seats. Every party has its own reasons for their success in politics. What happens to other parties we will see later on. However, two new political parties that people of this country should support in forthcoming elections are Aam Admi Party (AAP) and Nav Bharat Party (NBP) .because both of these are founded by good people  and have support of icons of India.

AAP is founded by none other than Arvind Kejariwal, Prashant Bhushan, and Manish sisodia and has support of number of civil society members and successful businesspersons. While NBP is founded by successful entrepreneurs like Shankar Muruwada,Amarnath kamath, Sheila Premkumar , Ranjit jatar and several others and has support of several icons of India. NBP's vision is to ‘renew and re-energize’ India and target segment is 63 JNNURM cities and young and educated voter.AAP's vision is to realise e dream of SWARAJ that Gandhiji had envisaged for a free India - where the power of governance and rights of democracy will be in the hands of the people of India and their target is also young Voters.

AAP says they have entered politics to change the current corrupt and self-serving system of politics forever. It also feel that timing for entering in to politics right because for the past few years millions of common Indians came out on streets to fight against the biggest evil in our country today - corruption. NBP feels that there is Wide-spread frustration with corruption and mis-governance and they are sure of success because the voter in their  target segments is educated youth and informed citizens they can mobilize power of Media.

Both the parties have almost same goals, they are entered into politics because of same reasons, even their target voter is also almost same.Then why these parties are contesting elections separately? .Their candidate selection process and code of conduct is also almost same. I am afraid due to a selection process they may be relying on same candidates in many constituencies.

Earlier also several civil societies and groups have tried their luck in politics but failed because due to filters they put in selection process for candidates were so strict and self-contradictory. These two parties are making same mistakes .AAP is taking affidavits from candidates that he/she will not use beacon car, will not take big house, will not take security etc. All these three thing are very good .But why take affidavits? Don't you believe in your own candidates? If candidate disobeys code of conduct then every party has power to expel him/her from party. I think taking such affidavits for behavior gives a wrong impression about party.A political party has to  support - believe in their own candidates.

NBP says candidate will give hundred per cent time for his constituency, means he/she should not do any other job. Then what about his /her livelihood? Further it expects candidate to indemnify NBP both financially and non-financially for any act of disobedience, indiscipline, hate-speech, etc. How a person who does nothing for livelihood could indemnify financially for anything? .On the other hand, if candidate indemnifies financially is he /she free for defection? .These type of conditions make feel a candidate insecure. No other political party takes such type of indemnity bonds or affidavits from candidates' . Let us hope that both the parties will make necessary changes in their policies and instead of insecurity take steps to enhance confidence in their candidates. It's true that both these parties are different from other political parties in many ways. However, being different should not mean being suspicious about own candidates .

People of India have great faith in the mentors behind both these parties. If these parties contest elections together it will be well and good, if that is not possible for any reason at least they should contest some seats mutually. That will help in sending at least some good people in parliament. Otherwise as usual good and wise people will contest elections against each other and visionaries of both these parties will be engaged in studying possible reasons of defeat.

Wednesday, May 15, 2013

Sir, RTI Hearing (in PMC) was very painful

Today I received a complaint from one Rita gupta. She had a hearing in pune municipal corporation .Instead of hearing her appeal, appellate authority humiliated her. These type incidences are increasing wherever information commissioners are very weak or low caliber  Whenever public information officers or appellate authorities come to know that whatever the case may be for many years second appeal will not come before the information commissioner for hearing or even if it comes, they are sure that commissioner will not take any action on officers.

It is not difficult to understand that from where this type of confidence comes. How can they dare to humiliate any RTI appellant and particularly a woman? The hearing (?) took place yesterday (14th may) the woman met me today (15th may), Even today it was difficult for her to stop tears, she was miserably upset.

It is clear that from the facts that PMC was trying to shield its officers. However, problem is, why PMC officer humiliated her. He could have easily heard her appeal and give the decision whatever he deemed fit. Instead of doing that, he chose to harass her. If this the status of the RTI applicants or appellants in big city like Pune one can imagine what will be the scenario in remote areas?

Reproducing that womans letter , In the bracket are some corrections in spellings made by me.

Dear Sir,

I Rita Gupta R/O Koregaon Park ,

Actually I and my society Managing Committee secretary has various issues, which are pending  before Registrar .Regard to this I need to  show my Society master plan. so I have applied in corporation for the same ,they gave me answer, that they are not finding this file" in writting .

I went for first appeal, then I received a letter, that I have a hearing on 14-5-2013.I reached on time at 11 am . But Mr. Sarode (Appellate Authority ) was not there .After 12.40 .He came inside the cabin .As I went inside I saw his attitute was very rude, careless, harsh.He did not hear me at all. I was keep requesting him to give me a change (chance), but he was keep humiliating me.It was very painfull hearing .I was haressed (harrased) like anything.Finally I asked him "Why did you called me up if you do not want to hear me ." then he gave me very irresponsible answer .Because you appelled it.

Then I came down emotionally and mentally drained. I started crying almost 2 hours. Then I deceided to meet Mr. vivak (Vivek Kharawadkar addl city engineer) and gave him in writting that Mr. Sarode tourtured me .Mr Sarode and Raskar and Dhanjay Jadhav said sorry to me . But I do not feel this is just enough. I suffered a lot all day.This officer gave me lot of pain .I am still going through pain; woman has to be respected by corporation officers.

Please help me in this matter.I want Mr. Sarode should transfer, so it should established as a moral." women also have selfesteem".

Rita Gupta

Sunday, May 12, 2013

Cooperative societies are created, governed, and controlled by statute.

Even before the enactment of Right to Information act or 97th amendment to the constitution of India, long back in 1985, constitutional bench of Supreme Court in a judgement in "Daman Singh vs. state of Punjab"has said that, the cooperative societies are governed by statute from their inception. They are created by statute and they are controlled by statute .This has become known due to Bombay high courts recent judgement.

Though not directly related to Right to information, but Bombay high courts recent judgement on co-operative societies has brought some points forward, those explain very essence of the recent 97th ammendment to the constitution. The Bombay high court has opined, "The cooperative movement is a socio economic and moral movement. In that, General Public has a definite place and its participation is but natural"

Bombay High Court recently rejected a revision plea by the manager of a cooperative bank facing liquidation for discharge in a case under Prevention of Corruption Act .In this case justice S.C .Dharmadhikari held that the manager was discharging public duty and hence, would have to face trial under PCA.

While delivering this judgement justice Dharmadhikari has dealt with various aspects of the co-operative societies and public interest .And these aspects, show how cooperative societies come under the ambit of RTI. Reproducing here just two related paragraphs of the judgement.

51. The directive principles of State Policy have an important role in the Constitutional Scheme. Part IV of the Constitution of India enumerates directive principles of State Policy. Article 37 clarifies that the provisions contained in this part shall not be enforceable by any Courts, but the principles laid down therein are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. Articles 38 and 39 cast a duty on the State to secure a social order for the promotion of the welfare of the people. Article 39 sets out the principles of policy to be followed by the State. Article 40 provides for organization of Village Panchayats and Article 43 under which the State shall endeavour to promote cottage industries on an individual or cooperative basis in rural areas is the foundation for the Cooperative movement and particularly now by Article 43B of the Constitution of India, everything gets clarified. These Articles read as under: “

43. Living wage, etc., for workers – The State shall endeavour to secure, by suitable legislation or economic organization or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and, in particular, the State shall endeavour to promote cottage industries on an individual or cooperativeBasis in rural areas.

[43B. Promotion of cooperative societies.
The State shall endeavour to promote voluntary formation, autonomous functioning, democratic control, and professional management of cooperative societies.]” [Ins. by the Constitution (Ninety-seventh Amendment) Act, 2011, s. 3 (w.e.f. 1522012).

52. Therefore, the cooperative movement is a socio economic and moral movement. In that, General Public has a definite place and its participation is but natural. There are not just members' interests involved in the Cooperative Societies. The Hon'ble Supreme Court holds that the very philosophy and concept of the cooperative movement is impregnated with the public interest. (See Para 10 at page 979 of the Judgment of the Hon'ble Supreme Court in the case of Daman Singh Vs. State of Punjab, reported in AIR 1985 SC 973). Cooperation is a substitute for self-interest of individual or group of individuals for the benefit of the whole community. The Cooperative Societies undertake agricultural and non-agricultural operations and functions including financial. Therefore, it is futile to urge that only members or depositors are interested in the working and functioning of a Cooperative Bank or its liquidation and winding up. There are persons like the Complainant, who deal with the Cooperative Banks or Societies and whose funds and properties are utilized by such Entities. When they complain that persons who are appointed as officers during the course of winding up and liquidation proceedings of the Societies’, commit acts which is a criminal misconduct and indulge in bribery and corruption, then, the P.C. Act, 1988 and its mechanism must be made available for dealing with the grievances and complaints of such persons. Once the constitutional perspective is borne in mind, then, the position of a Cooperative Society is not confined to local limits, nor its functioning and working restricted to few persons. There is a definite stake of the Society and the community at large in the working and functioning of such societies. Therefore, the Applicant was discharging a public duty. The conclusion of the learned Judge cannot be said to be vitiated in any manner and particularly as suggested by Mr. Warunjikar.

I guess this will start new and healthy discussion on , whether cooperative societies come under the ambit of RTI act or not ?.If we go through both the above judgements it seems that RTI act was applicable to co-operative societies even before 97th amendment to the constitution.

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Tuesday, May 7, 2013

Government agencies Negligence - Root cause of Fraud Chit Fund -MLM companies

After Sardha group fraud came to light one after another, scams are coming out. Recently  In pune, some people alleged that they were  Duped by Nitin Rajaram Narke, Blue Chip Corporation Pvt Ltd Pune. In the past thousands of such incidents happened  , but no Government or even innocent Investors have taken any lesson from that.

In High Court of Madhya Pradesh a Public Interest Litigation was filed(PIL No.3332/2010) against chit fund and Multy level marketing companies .These companies were Madhya Pradesh Lok Vikas Finance Limited,Samruddha Jeevan Foods Limited,Saksham Dairy India Limited,Royal Sun Real Estate & Allied Services-India Pvt. Ltd,Sky Lark Land Developers and Infrastructure India Limited,KMJ Land Developers India Limited,KBCL India Limited,GN Dairies Ltd./GN Gold Ltd-Kim Infrastructure and Developers Limited,PACL India Limited,RBN Real Estate and Allied India Limited,Sai Prasad Foods Limited-Sai Prasad Properties Limited,GCA Marketing Pvt. Limited.

         H'ble court  had ordered CBI inquiry in various chit fund frauds .From the enquiry conducted by CBI, it had emerged that prima facie, the companies had not found to be conducting their business legally and some  offences appear as were being committed by them. H'ble court also  passed serious strictures against them. However, some of the companies approached supreme court and obtained stay. In this petition, one may find the name of the company or person he /she has invested money with and its modus operandy.

           It was duty of all the governments to take steps to stop such frauds . However, all the concerned agencies kept mum . Nobody took serious cognizance of this order . The same companies appear to be conducting the same business in the same or other name of company in various states of India . It is interesting that persons associated with such type of companies always are in the limelight and  surrounded by lot of powerful and influential people. This scenario attracts small investor's confidence and they get duped.