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Monday, January 18, 2016

Ruthess Attack on activists of Accountability Yatra Lead by Aruna Roy in Rajasthan

Peaceful Jawabdehi (Accountability)  Yatra launched by Magsaysay Award winner and pioneer of RTI Act Aruna Roy, along with Nikhil Dey and Shankar Singh covering all the districts of Rajasthan to document people’s efforts and suggestions addressed to government schools and the larger education system, to make the government accountable for its decisions and advocating a sense of transparency in the system was attacked by mob lead by BJP MLA Kanwar lal Meena. It also vandalized vehicles and cameras were destroyed.





Mob attacked ruthlessly at Jhalawar, the constituency of the Chief Minister Vasundhara Raje.  A strong mob of 40 to 50 stormed into the meeting and attacked the people who were conducting the yatra peacefully. The BJP MLA began the assault by attacking Shankar Singh the well know activist of Mazdur Kisan Shakti Sanghatan. Encouraged by the leader’s brazen act, his followers began raining lathis on the peaceful and unarmed persons and volunteers and then went on to slap two women activists, break the glass panes of two vehicles and forcibly seize the camera from an independent filmmaker who was quietly documenting the public meeting and beat him up mercilessly when he tried to prevent an expensive Sony HD camera from being vandalized.


From left: Amitha, Atul, Radhika Ganesh, Anurag Singh, Mujeeb -
Photo courtsey http://www.thenewsminute.com

Shankar Singh, Anurag and Kamal tank and many other activists were injured. So far, police has not taken any action against the culprits.  Mob charged them with lathis on knee, and legs leading to internal injury.

Accountability yatra that begun on 1st of December 2015, from Jaipur, will cover all 33 districts of the state spending 3 days in each districts. Yatra is being participated by over 100 organizations of Rajasthan, under the banner “Soochana Evam Rojgar Adhikar Abhiyaan”. Around 80 people are travelling from day one, while hundreds join in each district for the local programmes.



Yatra is registering grievances on Ration, Pension, MGNREGA, Social Security schemes, school, hospitals etc. In each of the districts yatra spends two days in the fields with street plays performed, rally, demonstration, and public outreach programme at cross roads, small and big towns. In each of the district, there is “jan-sunwai” and “shikayat Mela” is organized, at the end of which, all the complaints that are registered therefore is handed over to the administration.  Complaints are registered online and tracked for their disposal.

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Phone – 9923299199
Email – kvijay14@gmail.com
Website – http://surajya.org              


   

Monday, January 11, 2016

Uttar Pradesh Right to Information rules dilute the very object of RTI act

There are several objectionable clauses in Uttar Pradesh Right to Information (UP RTI)  rules 2015  , But most dangerous clause is 13 (3) that categorically says that “ The proceedings pending before the Commission on any complaint or appeal shall abate on the death of the complainant or appellant, as the case may be. This is not only threat to RTI applicants but it is also dangerous for entire RTI act.




There are several other provisions in UPRTI Rules which read separately may appear innocent but if read collectively they can make disastrous affect on entire RTI proceedings. I.e appointments of Public Information Officers (PIO) and appellate authorities (AA) are to be made not by the name of the officers but by the designation of the office .This is good provision as far as exercise of appointments and reappointments is concerned. But there are another provisions and forms where PIO or AA need not mention their names on any of the correspondences.

There is also provision that “during the course of hearing on a complaint or an appeal, the complainant or appellant may be present in the Commission either in person or through duly authorized representative”. And this authorized representative of PIO may appear on behalf of designation. Hence there may be a situation where after final order even information commission may not know who the actual information was.

 9(1) during the course of hearing on a complaint or an appeal, the complainant or appellant may be present in the Commission either in person or through duly authorized representative. However, the Commission, if it deems necessary, may summon the complainant or appellant, as the case may be, to be present in person in the Commission on any specific date of hearing.

(2) The State Public Information Officer against whom the complaint or appeal has been filed may be present voluntarily during the hearings. However, the Commission may at its discretion direct the State Public Information Officer to be present in person or appear through an authorized representative, provided he is an officer of sufficient seniority.

Interestingly the form no 17 under which register of penalties imposed u/s 20 of RTI to be mentioned and form 18 under which penalty order to defaulting PIO is to be conveyed also silent on mentioning name of the PIO . These forms only say that the name of the PIO is to be mentioned only if it is available. That Means event after imposition of penalty nobody will know names of defaulting PIO’s.

Clauses 12 of these rules keep scope for more mischiefs to the RTI act. It is about the recalling of commissions orders.

12. (1) The Commission, on an application submitted by any party aggrieved by an order of the Commission, may recall its order on the ground of any of the following procedural defects:

 (i) The order was passed by the Commission without hearing the applicant for no fault of his; or

(ii) The Commission heard and decided the matter on a date other than the one fixed for hearing of the same and the applicant could not attend the hearing for no fault of his.

(2) The applicant may submit recall application within thirty days from the date of knowledge of the order of the Commission.

(3) If the Commission is of the view that prima facie there is no merit in the application, it may reject the recall application.


As per clause 13. (1), during the hearing on any complaint or appeal, the Commission may, on a request made by the complainant or appellant, as the case may be, allow the complaint or appeal to be withdrawn. This provision is also liked to be used mischievously by both parties. Also there are provisions of adjournment of hearing, transfer of hearings which are also dangerous to RTI act.

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RTI Resource Person, RTI Columnist
Phone – 9923299199
Email – kvijay14@gmail.com
Website – http://surajya.org              

   

Sunday, January 10, 2016

Big question mark on new appointments of state information commissioners in Maharashtra

Move to challenge administrative tribunal’s order in the High Court has put a big question mark on new appointments of state information commissioners in Maharashtra.In an interesting development Government of Maharashtra who had opposed the petition on appointments of State information commissioners in the High court stating that the petitioner had remedy of filing original application before the Maharashtra Administrative Tribunal (MAT) for the relief as prayed for in the writ petition, has now filed a writ petition ( 11623/2015) in high court stating MAT has no jurisdiction to try such cases.


The Bombay High Court
Advocate John S Kharat from Ahmednagar had filed a writ petition ( No 4477 /2011) in Aurangabad bench of Mumbai high court challenging arbitrary appointments of then State information commissioners (SIC) P. W. Patil, M. H Shaha and D. B Deshpande. Then Assistant Government Pleader (AGP) argued that the petitioner had remedy of filing original application before the Maharashtra Administrative Tribunal for the relief as prayed for in the writ petition. Having confronted with this, learned counsel for the petitioner withdrew the writ petition with liberty to the petitioner to file original application before the MAT.

Accordingly Kharat filed original application ( 469/2011) in Aurangabad bench of MAT.It was transferred to MAT Mumbai ( 823/2011). MAT on 16 April 2015 delivered its judgement and passed severe strictures on procedure of SIC appointments. MAT had observed   that while scouting for the said posts, the High Powered Committee that recommends candidate for posts of SIC to the Governor, has to make sure that the area of resources is sufficiently large so as to attract and ensure the appointment of the best talent for these important posts. However wider source from the fields of law, science and technology etc. was apparently not taken into account with the kind of seriousness by the committee
Maharashtra Administrative Tribunal

Citing the recommendations of the Supreme Court in the Namit Sharma (review) case, the Tribunal had also observed that there was no material to show as to what the state of affairs was with regard to the 68 candidates other than the 4 selected for posts of SIC’s. MAT had criticized Government   for not framing any rules for appointment of SIC’s, and  had also observed that there was no advertisement as such. There was no exact date on which the process commenced and there was no exact preform of application.

MAT had given following direction to Government of Maharashtra

 • There is an urgent need to make rules consistent with the provisions of Right To Information Act, 2005 especially Section 15 thereof for selections to the posts of Chief Information Commissioner and Information Commissioners. It will be desirable to have the rules in place much before the next selection is taken up for consideration by the High Powered Committee under the Information act. The directions of the Hon’ble Supreme Court in Namit Sharma’s case (reviews judgment) be carefully perused and implemented.




• It will be within the discretion of the Committee to fix the eligibility criteria for the said posts. But there again, the provisions of the Information Act may be strictly followed and it be ensured that the legislative mandate to have eminent persons from all the various disciplines like Law, Science and Technology etc should be given full scope to complete. The criteria should be duly publicised well in advance before the selection process begins. Sufficiency and mode of publicity of the said criteria will be within the discretion of the Committee

• The selection process must be transparent and definitive without any scope for apprehension of partiality, favouritism and such other vices. There must be a definitive time frame from the commencement of the said process till its conclusion without submission of the recommendations to His Excellency, the Governor. The details of the course of action in this behalf are left to the discretion of the committee but the following measures can be commended for consideration and effectuation: i)An officer of senior rank must be appointed to perform the duties akin to what in relation to several such committees is called Member Secretary…; The Committee may make sure that a proper schedule is appointed for the selection process…the duration of time between the date of commencement of distribution and the last date of its receipt by the Officer may not be more than four to six weeks…

• The Chief Secretary, Government of Maharashtra is requested to bring this judgment of the notice of the Hon’ble Chairman and Hon’ble members of the Committee for information and action. The Chief Secretary of the Government of Maharashtra may report compliance herewith within eight weeks from today (16 April 2015).

However instead of complying with the directions of the MAT, Government of Maharashtra has preferred writ in the High Court challenging those.Meanwhile all the SIC's whose appointments were challenged are either retired ,resigned or removed from the services long back. Hence any order in this regard will not have any effect on then appointments. But complying with Supreme court or MAT  order in further appointments may make some positive effect . 

Now whether MAT has such jurisdiction or not will be decided in the high court.But meanwhile there is big question mark on appointments of new information commissioners in Maharashtra.Regardless of pending the said writ, Government of Maharashtra may fill the vacant SIC posts with prior consent of the High Court , but will they do that? 

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RTI Resource Person, RTI Columnist
Phone – 9923299199
Email – kvijay14@gmail.com
Website – http://surajya.org              



Saturday, January 9, 2016

“ creation of corruption is state function”- Maharashtra charity commissioner

Recently Social activist Anna Hazare and other trustees of his non-governmental organization (NGO), Bhrashtachar Virodhi Jan Andolan, have been suspended for not dropping the word “anti-corruption” from its name. A joint commissioner’s say  on this issue is “It’s the responsibility of the government to check corruption and it has a mechanism. The job of the NGOs is to carry out social work and they should stick to it,”



However the original circular on which joint commissioners’ action is relied , speaks otherwise. It  says “ THE CREATION OF CORRUPTION IS NOT CHARITABLE PURPOSE BUT IT IS A STATE FUNCTION. FOR THE SAID PURPOSE THERE ARE SUBSTANTIAL LAWS AND GOVT MACHINERY ARE EXERCISING DIFFERENT POWERS”. How true, isn’t it?.It describes exact status of government functioning in India.  This circular was issued by then charity commissioner of Maharashtra in December 1999



Sixteen years later of said circular joint charity commissioner of Pune region, Shivkumar Dighe, had in June last year directed NGOs to drop ‘anti-corruption’ references from their names and threatened to suspend the trustees if they refused to comply with the order .Anna Hazare’s  Bhrashtachar Virodhi Jan Andolan didn’t comply with the order. And accordingly all the trustees were suspended.

However the original circular and the High court order on which said circular is based are highly debatable. After   denial from assistant charity commissioner to register a NGO “Mrugjal Bhrashtachar nirmulan samite” on the grounds that it had a word “ Bhrashtachar Nirmulan” ( eradication of corruption) it its name.The Applicant has filed the proposal for registration of the society.The name of the society revealed that society was formed for the purpose of removing the corruption but the objects of were different. Hence assistant charity commissioner refused the application. Then “Mrugjal” moved to Aurangabad bench of Mumbai High Court . High court however disposed of the petition on admission stage without any orders .




Now if NGO can use word anti- corruption or bhrashtachar nirmulan in their names or are they allowed do the said work as per act may be the point of  debate . However it is the fact that even after 1999 charity commission itself has registered several such societies. 


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Wednesday, January 6, 2016

Confidentiality & Conflict of Interest may adversely affect Pune’s future as a Smart City.

Critics believe that smart city is just a buzz-phrase that has outlived its usefulness it is the wrong idea pitched in the wrong way to the wrong people. Some also believe that, In the end, they will destroy democracy. And that’s what exactly happening in Pune. Pune has participated in smart city challenge. Lack of Transparency, Confidentiality, one sided agreements, Conflict of Interests and mockery of democracy during the process of smart city challenge stage may adversely affect Pune’s future as a Smart City.


Courtsey - rhg.thehuffingtonriposte.com
There are several irregularities in the process of selection of Consultant & in the preparation of the proposal for participation of Pune Municipal Corporation (PMC) in the Smart Cities Challenge. Serious violations of the Model Request for Proposal (RFP) and the irregular concessions granted to Mckinsey against public interest . An urgent investigation in the entire process of selection of Mckinsey as the Consultant to Pune Municipal Corporation and of the preparation of the proposal for assisting Pune City to participate in the Smart Cities challenge is very necessary

There is complete Lack of Transparency in entire process. The Agreement signed between PMC & Mckinsey has been uploaded belatedly on the PMC website. PMC has resorted to a limited transparency policy by not fully uploading documents pertaining to the award of the contract to Mckinsey. Appendix B – Key experts and Appendix C – Breakdown of contract price, which are integral part of the Agreement have not been uploaded. The letters of invitation to the consultants along with the Annexure are not uploaded on the PMC website. Details of the selection process are completely absent. These documents are critical to the award of the contract on which the RFP for the Smart City is based.

There are several anomalies in the Agreement signed by the Commissioner of Pune Municipal Corporation (“PMC”) with M/s Mckinsey & Company (“Mckinsey”) and the format does not adhere to the model Request for Proposal (“RFP” for short) for the selection of consultants specified by the Government of India. Thus, the basic structure has been faulted, which will adversely affect Pune’s future as a Smart City.

Several clauses/sub clauses have been deleted, modified or supplemented against public interest. These are substantial modifications and variations. And in terms of Clause 16.2 prior written consent of the Bank is required, which the Commissioner has failed to obtain and/or display on the website. Reproduced here briefly are some of the major modifications and variations carried out against public interest.

The Commissioner has wholly deleted Clauses 17.8 (Measures to be taken), 41.2.1 (Advance Payment Bank Guarantee by Mckinsey) and 42.1 (Interest on Delayed Payments) of the Model RFP from the Agreement signed with Mckinsey (“the Agreement”). The Commissioner has also modified Clause 41.2.2, which favours the Consultant by specifying payment “at the earliest” rather than following the Model RFP of payment “within 60 days.” By deleting Clause 42.1, the Commissioner has only rationalised PMC’s inefficiency and given a leeway to the Consultant to put forth the excuse of delayed payment for any slippage in its work. These modifications clearly appear to be a quid pro quo in lieu of granting special concessions.

Clause 21.1 pertains to ‘Conflict of Interest’, which occurs in a situation that has the potential to undermine the impartiality of a person or organisation because of the possibility of a clash between the person's or the organisation’s self-interest and public interest. The three accepted categories are ‘actual conflict of interest’, ‘potential conflict of interest’ and ‘perceived conflict of interest’.

Mckinsey has replaced the Model RFP Clause 21.1 (Conflict of Interest) with an entirely different version, which has equated “conflict of interest” to “confidentiality of information”. Clause 22 (Confidentiality of information) has also been cleverly re-worded so that the onus entirely devolves on the PMC.
courtsey - jantoo.com

Clause 21.1 (Conflict of Interest) in the Agreement is badly drafted, grammatically incorrect and convoluted. Our suspicions are further reinforced because Clause 21.1.4 (Prohibition of Conflicting Activities) does not exist in the Agreement.

For ease of understanding reproduced below are Clauses 21.1 in the model RFP and the one inserted by Mckinsey as well as Clause 21.1.4 (Prohibition of Conflicting Activities) deleted wholly from the Agreement. One can draw one’s own conclusions.

Clause 21.1 in Model RFP: “The Consultant shall hold the Client’s interests paramount, without any consideration for future work, and strictly avoid conflict with other assignments or their own corporate interests.”

Clause 21.1 in the Agreement signed by the Commissioner: “lt is Consultant's long-standing policy to serve competing clients and clients with potentially conflicting interests as well as counter-parties in merger, acquisition and alliance opportunities, and to do so without compromising Consultant's professional responsibility to maintain the confidentiality of client information consistent with such practice and consultant's confidentiality obligations to its other clients, consultant is not able to advise or consult with the Company about Consultant's serving the Company’s competitors or other parties.”

courtsey - ibfanafrica.org.sz 
Deleted Clause 21.1.4: “The Consultant shall not engage, and shall cause its Experts as well as its Sub-consultants not to engage, either directly or indirectly, in any business or professional activities that would conflict with the activities assigned to them under this Contract”.

The Agreement with the PMC has two additional clauses 22.2 and 22.3 regarding “Confidentiality” under the head “Obligations of the Consultant”. These sub clauses are contradictory because as per Sub Clause 22.2 any information that is legally required to be disclosed is not ‘confidential’ while Sub Clause 22.3 requires prior approval of the Consultant for disclosing “… any materials or information that Consultant furnishes to the Client, including the deliverables, to any third parties…”. The entire selection process of the Consultant and the process for preparation of the proposal for assisting Pune City to participate in the Smart Cities challenge are legally required to be transparent and in public domain. Further, by no stretch of imagination can obtaining “prior approval of the Consultant” be termed as “Obligations of the Consultant”. The entire process of selection and preparation of the proposal was kept under a veil of secrecy for reasons, which need not be recorded here.

By deleting Clause 25.2 (Accounting, Inspection & Auditing) PMC and Mckinsey have deprived the Bank of its right to inspect accounts and records of Mckinsey and its Sub consultants. The Bank means “International Bank for Reconstruction and Development (“IBRD-World Bank”) or the International Development Association (“IDA”). We are reproducing below the deleted Clause 25.2 of the Model RFP in full to show the length to which the Agreement has been modified in ‘accommodating” certain interests.

courtsey -www.jantoo.com

Clause 25.2 (Accounting, Inspection & Auditing): “The Consultant shall permit and shall cause its Sub consultants to permit, the Bank and/or persons appointed by the Bank to inspect the Site and/or all accounts and records relating to the performance of the Contract and the submission of the Proposal to provide the Services, and to have such accounts and records audited by auditors appointed by the Bank if requested by the Bank. The Consultant’s attention is drawn to Clause 10 of General Conditions of Contract (GCC) which provides, inter alia, that acts intended to materially impede the exercise of the Bank’s inspection and audit rights provided for under this Clause GCC 

25.2 constitute a prohibited practice subject to contract termination (as well as to a determination of ineligibility under the Bank’s prevailing sanctions procedures.)”

In spite of clear instructions to select the Consultant on Least Cost Selection (LCS) basis, the contract given by the Commissioner to Mckinsey is on the basis of Quality and Cost Based Selection (“QCBS”). This has resulted in PMC paying exorbitant cost for the Consultancy compared to other cities.Pune is the only city paying 2.5 crores to the consultant; all other cities participating in smart city mission have done this work in 40 lakh rupees only.

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RTI KATTA is a platform to empower oneself through discussions amongst each other to solve their problems by using Right to Information act, Every Sunday at Chittaranjan Watika, Model Colony,Shivaji nagar, Pune, between 9.30 to 10.30 A.M.


RTI Resource Person, RTI Columnist
Phone – 9923299199
Email – kvijay14@gmail.com
Website – http://surajya.org