Dear Members of Parliament, do not vote for any amendments to the RTI Act please.

Dear Member of Parliament,

I am writing this piece to you to voice my concern about a matter that is very important to me. There are reports in the media, that a bill is likely to be presented in Parliament to amend the RTI Act. The reasons being given publicly are that the CIC order declaring political parties as Public authorities, subject to RTI is bad in law. My understanding is that if an order, which is bad in law, is issued by any statutory authority, the correct process is to challenge it at an appropriate forum. The CIC order can be challenged in a writ in the High Court, and there are many instances of these orders having been quashed in Courts. None of the political parties has filed for a stay of this order, and now expects to amend the law in Parliament to justify and legitimize their defiance of a statutory order. With folded hands, I plead with you not to vote for this. Parliament makes the law. Once it is made, it has to be adjudicated by the appropriate statutory authorities. This is the Constitutional process. Defying a statutory order by anyone sets a wrong example, and leads to breakdown of the rule of law. After considerable discussion spread over months, and reference to a Parliamentary Committee this law was passed. It has been rated as the second best law in the World. Citizens cherish and value it immensely, since it codifies a very important fundamental right of ours.

The law has been used extensively and has uncovered certain arbitrariness and corruption. More importantly, it has empowered the individual sovereign citizen, who is today getting greater respect from many entities. The key principle in defining the bodies to be covered by the RTI Act was based on the movement’s slogan, “ Hamara Paisa, Hamara Hisab.” Hence all Government bodies were covered by the RTI Act and other Institutions which may be ‘substantially funded’ by Government were covered. This was the Act passed by Parliament, based on which the CIC has passed an order. I do concede that there is some reasonable scope for a different opinion on what constitutes ‘substantial funding’ and if the political parties feel that the CIC decision is flawed, they could challenge it in Court. Parties have said that they are being monitored by the Election Commission and the Income Tax department, and hence they need not provide information to Citizens. All Institutions including Parliament are legitimized to be intermediaries on behalf of ‘We the People’. None of these can replace the people of India.

Some worries have been voiced about how the political parties will be able to cope with the RTI queries. I might point out that many small NGOs and aided schools are complying with RTI without a major stress.

Subjecting themselves to Right to Information by citizens has not damaged any Institution in the Country. Some political representatives have claimed that they would not like to be questioned about their processes of decision-making. RTI only gives access to citizens to the records of a Public authority, and does not entitle the citizen to question the merits of the decisions. Besides there are ten exemptions in Section 8 (1) for information that need not be disclosed and these exemptions passed by Parliament have worked well, and not resulted in damaging any Institution since 2005. There is some recognition in most quarters that it is slowly leading to getting some corrections and improvements in Institutions and strengthening the hands of those who work in the spirit of Public service and probity.

It is true that there is a trust deficit between citizens and political leaders. RTI will overcome this, and lead to a better understanding of the working of various political parties. It will lead to citizens making a more informed choice of political parties during elections. Besides, it will promote better and systematic functioning of the political parties, once they subject themselves to monitoring by the people they seek to serve. I am sure you are concerned with the decline in the levels of probity in public service. This is an opportunity to reverse this and start the journey towards a more meaningful service of people. I am sure you are as concerned with the future of politics and your party in a decade from now, as I am. Let us work together for a better political democracy with a long-term vision for a better India. Please do not vote for any amendments to the RTI Act. If your party is not going to vote for amendments to the RTI Act, please state this publicly.

Regards

Vijay Kumbhar

Search of SIBS is on for the post of Maharashtra State Information Commissioners

In Maharashtra search is on of SIBS (Senior Indian Bureaucrats) for the post of State Information Commissioners (SIC). In Maharashtra, it is now high time for appointments of information commissioners. On 18th July, state information commissioner Bhaskar Patil who was initially appointed on Amravati bench of state information commission and then transferred (?) to Nagpur bench will retire. So there is confusion about which post will be vacant Nagpur or Aurangabad? Already there are three posts vacant and on 18th total four posts will become vacant.

As it is always said that information commissions have become parking lot of retired bureaucrats.It will be interesting to see whether government of Maharashtra fills all the vacant posts at time or waits for some time for some bureaucrats to become senior citizens to fill some posts. Few senior bureaucrats are about to retire in next few months. Some of them have already applied for post of SIC.

Earlier due to Supreme Courts judgement in most controversial Namit Sharma case, there was confusion about appointment of information commissioners. However, when after review petition, Supreme Court gave some relief and stay was granted on some points. but following points remained as it is. Hence, it is mandatory for every government to follow those. These points are

1) The appointment of the Information Commissioners at both levels should be made from amongst the persons empanelled by the DoPT in the case of Centre and the concerned Ministry in the case of a State. The panel has to be prepared upon due advertisement and on a rational basis as afore-recorded.

2) The panel so prepared by the DoPT or the concerned Ministry ought to be placed before the High-powered Committee in terms of Section 12(3), for final recommendation to the President of India. Needless to repeat that the High Powered Committee at the Centre and The State levels are expected to adopt a fair and transparent method of recommending the names for appointment to the competent authority.

3) The selection process should be commenced at least three months prior to the occurrence of vacancy

Government of Maharashtra has followed none of them .No prior advertisement has been given and hence question of preparing panel does not arise at all. What government of Maharashtra has done is that, it has only prepared panel from the application received directly without advertisement. Many of these application have recommendations of MP', MLA's and Political parties. Let us see whoes recomandation has more weightage? .

Finally Pune Municipal Corporation uploads computerized data of its properties on Website

Finally Pune Municipal Corporation (PMC) has uploaded computerised data of its properties on website. We must congratulate PMC officers for that. It took almost 10 years to collect all the data. I had given first notice regarding this to PMC on 18 December 2003. However, task was difficult because all the interested 'parties' were against it and data was not maintained properly. I had to serve several notices regarding this to PMC. As all the parties had hand in gloves. PMC officials were also under pressure. Several times, they announced that data will be made public soon, but could not do so.Now though PMC has published the Data, it may not be perfect or accurate. So now, citizens have to communicate to PMC if there is any inaccuracy.

It all started with the a resolution passed by the General Body and Standing Committee of the Pune Municipal Corporation (PMC), bestowing the right of a sports complex to the then Chairman of the Standing Committee,  for 30 years, without a calling for proper tenders, in the year 2001. This amounted to day light robbery of public property.

Angered by this brazen flouting of the law, I filed a PIL in the Bombay High Court, praying for the Court's intervention in the matter. While arguing in its favour, the PMC had stated that leasing out properties in this manner was "their consistent practice." The Honourable High Court came down heavily on the civic body and ordered it to take back the sports complex land with immediate effect. In addition, the Justices passed an order, directing the civic body to frame a proper Land Allocation Policy, to prevent the misuse or encroachment of public land in the future.

However, to get the civic body to act on the directions of the Honourable Court I had to fight tediously for six long years. The present Land Allotment Policy was framed in the year 2008, and since then the PMC has identified hundreds of such properties. Work is underway to take over those properties.

Another important facet of this story is that when I had asked under the Right to Information about the properties of the civic body leased out with out tender, it was revealed that a proper database was not maintained by the PMC. It was only after repeated notices that the PMC has started maintaining the same.

This brazen encroachment of public land goes on rampantly through out the nation and it is my earnest desire that the people in various parts of the country start the process of rectifying the same, using the Right to Information.

Maha info commissioner's transfers, Guardians of transparency, suppressed the facts

Information commissioners are supposed to be guardians of transparency. However, when it comes to personal benefit, it is revealed that they can suppress the facts. When Vilas Patil, then state information commissioner (SIC) of Nagpur had requested for his transfer to Nasik, High-powered committee (HPC) had recommended appointment of Bhaskar Patil for SIC at Nagpur on 15/1/2008. However, when after AG's report it was confirmed that  transfer was not possible. Vilas Patil withdrew his request and HPC sent a revised recommendation on 21/11/2008  to Governor for Bhaskar Patils appointment as SIC Amravati .It is hard to believe that information commissioners who were transferred last year were not aware of the facts and Advocate General's (AG )  report in this case. However, conveniently, this fact was suppressed and request of transfers was made to then newly appointed Chief information commissioner. Accordingly, he obliged them.

The State Chief Information Commissioner (SCIC) Ratnakar Gaikwad, while transferring three SIC's last year had defied the legal opinion of AG,  that 'A State Information Commissioner can not be transferred unless he resigns from his present posting.' This was revealed after an official copy of correspondence mentioning AG's report in a similar case few years back was obtained.

 AG's report about the transfer clearly states that even if the HPC ( comprising Chief Minister, Deputy Chief Minister & Leader of Opposition in Vidhansabha) decides to recommend to the Governor transfer on new posting for a SIC, his resignation from his present posting is essential. Even when this report was in the records of general administration department and State Information Commission Gaikwad ordered transfers of SIC, M.H.Shah from Nasik to Pune, Bhaskar Patil from Amravati to Nagpur and P.W.Patil from Nagpur to Nasik in June 2012 within a week after taking over as SCIC. Since there is no power vested in SCIC for such transfers in RTI Act 2005, I  had then written to the Governor to revoke these controversial transfers.

The legal opinion in this report has confirmed my contention that transfers of SIC's by Gaikwad were not as per the law. As per the report in 2007-08 the SIC Nagpur Vilas Patil had requested to the high power committee for his transfers to Nasik. The committee under the chairmanship of Chief Minister accepted his request and sent recommendation of his transfer to the Governor. However, the governor's office observed that there was no provision of SIC's transfers in RTI Act, 2005 and ordered for the opinion of law & judiciary department . In his report submitted to the Government on 14th February 2008 the AG states, 'Minutes of the high power committeeclearly indicate a specific recommendation of commissioner for a specificregion. Committee can change the decision provided he (Vilas Patil) resigns from his present post. His appointment would be a fresh appointment requiring his resignation from his post at Nagpur. Neither an amendment nor a partial notification of the extant notification would serve the purpose.' Following this complications Patil withdrew his request for transfer.

 As per the minutes of the high power committee each of these three SIC's had been recommended for a specific region by the committee and the appointment letters signed by the Chief Secretary also indicate their postings. It is clear that even the high power committee cannot transfer an SIC then how can CIC order and execute such transfers? SCIC has clearly defied all authorities and procedures.

In Maharashtra , head office of SIC is at Mumbai and as per section 15(7) of RTI act commission after approval of state has established its offices at Pune, Kankan , Brihanmumbai , Amravati, Nasik, Nagpur and Aurangabad .And Government of Maharashtra by various orders under the name and order of Governor has created posts of officials' including State Information commissioner for each office specifically. In addition, Governor has appointed state information commissions for Amravati, Nagpur, and Nasik by separate orders .These appointments are for those specific offices only. My contention was, when Governor appoints SIC on recommendation of HPC for specific post. Then nobody can relieve him from that post unless his term ends, he attains age of 65 years, resigns, or removed from the post of SIC under any of the provision of RTI act.

Now that as all the three information commissioners have vacated posts they were duly appointed on and joined other offices. As per AG's report, these should be considered new appointments. However, for this post not the HPC has recommended their names or Governor has not approved it. Then what is the status of these information commissioners and what is the validity of decisions they have given?

Talking to media on this subject state chief information commissioner has said "Please ask these activists who is otherwise empowered?".(for transfers of SIC's) However, there is no need to ask ctivist or anyody. The Advocate General's report is there in state information commissions' office .And Governor, HPC as well as state information commission have already taken stand according to that opinion. Now if this report has become irrelevant, please let the people of Maharashtra know, how, when and why it became irrelevant? And let SCIC state who is the authority in legal matters SCIC or Advocate General?

Why Governments are reluctant to follow Supreme Court Orders ?

In Namit Sharma judgement, Supreme Court of India had directed all governments that the selection process of information commissions should be commenced at least three months prior to the occurrence of vacancy. As far as Maharashtra is concerned, it does not seem to obey supreme courts order. In Maharashtra, there are total eight posts of information commissioners including chief information commissioner, of which four are vacant and fifth post is going to be vacant on 17 July, i.e. after 17 July, there will be five posts vacant. Forget about starting process of filling post before vacancy, government of Maharashtra has not bothered to fill even vacant posts.

That is how the government of Maharashtra honors Supreme Court orders. The history is matters under which it was possible to put hurdles before the RTI applicants and appellants Government of Maharashtra had acted promptly But stealthily. ( remember amendments to The Maharashtra RTI rules)  .But when it comes to fill the vacancies or do something for the benefit of RTI or in the public interest it doesn't even bother to disobey supreme court.

Recently government of Maharashtra stealthily tried to frame appeal procedure rules for state information commission. When I learnt about this, I wrote about it on this blog. After that, lot of RTI activists and journalists called me about authenticity of these draft rules and asked why government is trying to do this in such a hurry? Moreover, why they have not made it public before they pass it ?. The answer of this also lies in Namit Sharma judgement that was delivered by division bench of supreme me court of India on 13 September 2013  and subsequently challenged by some renowned RTI activists. In addition, we have experienced in the past that why government doesn't make such things public? The answer is simple, because if they make it public then there will be burden to make those people friendly.

In this judgement, SC had directed that the Central Government and/or the competent authority shall frame all practice and procedure related rules to make working of the Information Commissions effective and in consonance with the basic rule of law. Such rules should be framed with particular reference to Section 27 and 28 of the Act within a period of six months from today (i.e. from 13 September 2013 ).That may be the reason that government of Maharashtra  tried to frame those infamous appeal procedure rules in hurry and stealthily.

The next two orders i.e. (1) The Information Commissions at the respective levels shall henceforth work in Benches of two members each. One of them being a ‘judicial member’, while the other an ‘expert member’. and (2) The appointment of the judicial members to any of these posts shall be made ‘in consultation’ with the Chief Justice of India and Chief Justices of the High Courts of the respective States, as the case may be, Were stayed by the supreme court in review petition . However, there was no stay for any other orders even then most of the governments have not followed that.

Supreme Court had also directed that appointment of the Information Commissioners at both levels should be made from amongst the persons empanelled by the DoPT in the case of Centre and the concerned Ministry in the case of a State. The panel has to be prepared upon due advertisement and on a rational basis as before recorded. Only DoPT has has published advertisement for appointment of information commissions. No other government seems to be following this order.

Only 160 more years required for compliance of section 4 of RTI act?

A, B and C can do a particular piece of work in 2, 3 and 6 hours time respectively. If they do the same work together, in how much time they will finish it? Many of us must have faced such type of work, time, and speed problems in school days. Many of us may make mistake while answering such problems. We can understand if any person makes such mistake, but what if entire country makes a mistake?

Yes, as far as Right to Information is concerned, entire country has made such mistake. On 15 June 2005 parliament of India passed RTI act. On 15th June 2013, it completed eight years; to be precise it completed 2922 days. After 15th june parliament of India .i.e. entire country gave  120 days time  to all the public authorities , to disseminate  as much information suo motu , to the public at regular intervals , through various means of communications, so that the public have minimum resort to the use of RTI Act to obtain information. How this 120 days period for compliance was calculated? , Who was so sure about capabilities of public authorities in India? .No body knows the answers to these questions. However, ground reality is, there is very little, or no compliance at all of section 4 of RTI acts in India.

Exact figure of compliance of section 4 is not available, but for sure, it is not more than 2% to 5% in entire India. Now if we consider formula of time, work, speed, and if in 2922 days only 5% compliance is there, then how much time will they require for 100% compliance. Answer is simple 58, 440 days, i.e. only 160 years! As far as country is considered 160 years is not a big span, but if citizens of the country are considered this is very big span. As per this speed, our next few generations will not see compliance of section 4.

Now let us be some generous, show some faith on capabilities of our public authorities, and see what happens. if we consider 10% compliance of section 4 has been done then for full compliance  80 years will be required , if  we assume 20% compliance has been done then 40 years and if 40% compliance is done then next 20 years will be required for full compliance.

It is hard to believe that 40% compliance has been done or even it is impossible that somebody will claim so. It is pleasant scenario that in next 20 years 100 % compliance of section 4 will be done isn't it? But friends we are talking about compliance up to 15 June 2005 only , what about next years compliance? .For that we have to calculate vice versa . forget it , instead it is better to believe that in next 20% years 100 % compliance will be done.Thats why it is not even considered here that only 2% of compliance has been done till today. Positive thinking is always good. However, question remains the same, how did we made a mistake about capacity of our public authorities on such a huge scale?.

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

Commission;

(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.

ANNEXURE “A”

(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

ANNEXURE  'B'

(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

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

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.

Related Blogs

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

* RTI is applicable to cooperatives because Constitution is supreme

* The controversy emerged after 97th amendment to the constitution of India

DoPT Guidelines, One-step ahead towards Transparency

Central governments Department of Personnel & Training has recently sent a office memorandum to all central Public Authorities regarding Implementation of suo motu disclosure under Section 4 of RTI Act. The DoPT has agreed that there is lot of information in public domain, but the quality and quantity of proactive disclosure is not up to the desired level. To find solution on this government had constituted a Task Force on suo motu disclosure under the RTI Act. Based on the report of the Task Force, the Government have decided to issue guidelines for suo motu disclosure.

As per these guidelines,
1) Information relating to procurement made by Public Authorities including publication of notice/tender enquiries, corrigenda thereon, and details of bid awards detailing the name of the supplier of goods/services being procured or the works contracts entered or any such combination of these and the rate and total amount at which such procurement or works contract is to be done should be disclosed.

2) If Public services are proposed to be provided through a Public Private Partnership (PPP), all information relating to the PPPs must be disclosed in the public domain by the Public Authority entering into the PPP contract/concession agreement.

3) Transfer policy for different grades/cadres of employees serving in Public Authority should be proactively disclosed.

4) All Public Authorities shall proactively disclose RTI applications and appeals received and their responses, on the websites maintained by Public Authorities with search facility based on key words.

5) Public Authorities may proactively disclose the CAG & PAC paras and the Action Taken Reports (ATRs) only after these have been laid on the table of both the houses of the Parliament.

6) Citizens Charter prepared by the Ministry/Department, as part of the Result Framework Document of the department/organization should be proactively disclosed and six monthly reports on the performance against the benchmarks set in Citizens Charter should be displayed on the website of public authorities.

7) All discretionary /non-discretionary grants/ allocations to state governments/ NGOs/Other institutions by Ministry/Department should be placed on the website of the Ministry/Department concerned.

8) Public Authorities may proactively disclose the details of foreign and domestic official tours undertaken by the Minister(s) and officials of the rank of Joint Secretary to the Government of India and above and Heads of Departments, since 1st January 2012. The disclosures may be updated once every quarter. . Information to be disclosed proactively may contain nature of the official tour, places visited, the period, number of people included in the official delegation and total cost of such travel undertaken.

No doubt, this is commendable step taken by the government. Still there is lot to do. Lot of another information covered under section 4 about which said office memorandum does not say anything. Venkatesh nayak of Commonwealth Human Rights Initiative has send a letter regarding that to DoPT .

As well as this office memorandum does not mention anything about the dissemination information related to section 4(1) (C) and (D) .As per these sections Public Authorities have to publish all relevant facts while formulating important policies or announcing the decisions that affect public; and provide reasons for its administrative or quasi-judicial decisions to affected persons.

Now with this office memorandum central government has moved one-step ahead towards transparency. However, big question is whether all the Public authorities will follow these guidelines? Now and again governments come with new amendments, acts, orders. Ordinances and office memorandums. However, we have largely seen unhealthy approach of babus towards them. Last seven years experience is not so good; however let us hope for the good.

More difficult days ahead for Right To Information

Last week Supreme Court stayed some part of order given in namit Sharma case. Though SC declined to give stay on entire judgement, it stayed some part of it. However, this stay has increased more confusion.

 Last year Supreme Court in its order given in namit sharma case said, "The Information Commissions at the respective levels shall henceforth work in Benches of two members each. One of them being a ‘judicial member’, while the other an ‘expert member’. The judicial member should be a person possessing a degree in law, having a judicially trained mind and experience in performing judicial functions. A law officer or a lawyer may also be eligible provided he is a person who has practiced law at least for a period of twenty years as on the date of the advertisement. Such lawyer should also have experience in social work. We are of the considered view that the competent authority should prefer a person who is or has been a Judge of the High Court for appointment as Information Commissioners. Chief Information Commissioner at the Centre or State level shall only be a person who is or has been a Chief Justice of the High Court or a Judge of the Supreme Court of India."

 And it had also said that "The appointment of the judicial members to any of these posts shall be made ‘in consultation’ with the Chief Justice of India and Chief Justices of the High Courts of the respective States, as the case may be”.

After the judgement in namit Sharma case, union government had filed review petition. Mrs.Aruna Roy and Shailesh Gandhi had intervened in this case and requested for the stay on judgement. SC gave stay on above two points but it also directed that wherever Chief Information Commissioner is of the opinion that intricate questions of law will have to be decided in a matter coming before the Information Commissioners, he will ensure that the matter is heard by information commissioner who has knowledge and experience in the field of Law.

This order has created huge confusion. Now question is, how will Chief Information Commissioner (CIC) decide that there is an intricate question of law in a matter that is before the Information Commissioners (IC) ? How will he find it out ?, What rights he has got under RTI ?, As  both the  IC and CIC are equal in status , there is no provision in RTI to  communicate anything about nature of appeal to CIC.And how to find out or who and how will decide intricate questions of Law?. Some times very small points become very big question of law and some times even a big intricate question of law  may not come to light due to lack of knowledge. As well as for those IC's having nature of shifting the responsibility on others shoulders, this is excellent opportunity to transfer the appeals to another bench on the so-called ground of involving intricate question of law.

 Next point is how the member having knowledge and experience in the field of Law will work ?. Will he work with another member as per the cases or, will he hear all the cases transferred by all the information commissioners? Another fear is if unintentionally or deliberately IC's  start to transfer the appeals pretending it involves  intricate question of law, imagine  what will be the scenario? .Or it may happen that appellant dissatisfied with the decision of IC may approach the CIC on the grounds that appeal involves intricate question of law. What will CIC do? Because he does not have any right to here or decide anything on appeal decided by IC and Supreme Court says CIC will ensure that a Bench of which hears such matter at least one member has knowledge and experience in the field of Law.