India, Maharashtra, vijay kumbhar, News, Governance, RTI, Transparency, Civic Issues, Real Estate: confidentiality

Showing posts with label confidentiality. Show all posts

Thursday, July 20, 2017

Pune Citizens to be smart without knowing anything about Smart City Projects....

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. Lack of Transparency, Confidentiality, one sided agreements, Conflict of Interests and mockery of the democracy are the key issues involved in the smart city projects. Pune Municipal Corporation PMC has resorted to a limited transparency policy by not fully disclosing matters related to the smart city projects.

Initially making governance citizen-friendly was the key objective of smart cities projects, and public participation was said to be core tool to achieve it. However, afterwards instead of transparency, the secrecy became the buzzword for smart cities mission. And Pune city was on the forefront of mission secrecy. The smart city mission had already killed basic principles of the 74th amendment to the constitution of India that was brought to strengthen urban local bodies. The secrecy clause in Smart city Mission has taken the soul out of Right to information act.

There were 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. There were serious violations of the Model Request for Proposal (RFP) and the irregular concessions were granted to Mckinsey against public interest.

Now to keep citizens in the dark from the activities of smart city projects, they have coined new idea of code of conduct for directors and senior management Personnel of the company Pune Smart city Development Corporation Limited (PSCDCL). PSCDCL is the company formed as Special Purpose Vehicle (SPV) under Smart City Mission for implementation of Smart City Projects in Pune. This code of conduct prevents Directors and Senior Management Personnel of PSCDCL from disclosing anything with any member of the Press or Media in the matters connected with the Company or its business unless specifically permitted by the Board of Directors of the Company or the Chairman/Managing Director of the Company.

CODE OF CONDUCT THAT PSCDCL IS SET TO ADOPT

This Code of Conduct is applicable and binding on the Directors and Senior Management Personnel of the Company and other officials of the Company as may be identified

Code of Conduct — The Board Members and Senior Management shall:

(a) Always act in the best interest of the Company;

(b) Adopt highest standards of personal ethics and integrity in their dealings with the Company:

(c) Make disclosures, to the Board of Directors, relating to all material financial and commercial transactions or other dealings in which they have personal interest, and may have a potential conflict with the interests of the Company or are required to be disclosed as per applicable regulations:

(d) Ensure security of all confidential information made available to them in the course of discharge of their duties or otherwise

(e) Follow all prescribed safety and environmental norms:

(f) Not engage with any member of the Press or Media in the matters connected with the Company or its business unless specifically permitted by the Board of Directors of the Company or the Chairman/Managing Director of the Company;

(g) Conduct themselves and their activities outside the Company in such a manner as to not adversely affect the image or reputation of the Company;

(h) Accept and act according to this Code of Conduct and affirm compliance with this Code on annual basis.

In addition to the code of conduct specified above, Independent Directors shall abide by the duties as specified in Schedule IV to the Companies Act, 2013 or any amendments thereof.

This code is subject to review by the Board from time to time.

The code of conduct will be discussed in PSEDCL’s next meeting. The past experience of Smart City mission in Pune is not satisfactory. The democracy was nowhere on the agenda of Pune Smart City Mission and hence this code of conduct will also be passed in the meeting.

Tuesday, February 9, 2016

Smart cities to be secret cities, beginning of the end of transparency era

Finally, skeletons of real intentions behind smart cities mission have been started tumbling out of the cupboard. Initially making governance citizen-friendly was the key objective of smart cities projects, and public participation was said to be core tool to achieve it. Now instead of transparency, the secrecy has become the buzzword for smart cities mission. The Government of India has issued a model Article of Association (AoA) for the company to be formed under special purpose vehicle ( SPV) for smart cities, that keeps entire functioning of smart city projects behind closed doors.

courtsey https://anticap.files.wordpress.com

There are several clauses that are controversial in this AoA, but secrecy clause has become the matter of concern for transparency activists in India. The smart city mission had already killed basic principles of the 74th amendment to the constitution of India that was brought to strengthen urban local bodies. Now with this secrecy clause, it has taken the soul out of Right to information act.

The preamble of RTI act says “Democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed;”. The smart city mission stands exactly opposite, it says ‘nobody has right to demand and nobody has a right disclose any information with respect to the company formed under SPV.

Reproduced here is secrecy clause in AoA .

(i) Every Director, Manager, Secretary, Auditor, Treasurer, Trustee, member of a committee, officer, servant, agent, accountant or any other person employed in the business of the Company shall, if so required by the Directors, before entering upon his duties, sign a declaration pledging himself to observe strict secrecy respecting all transactions and affairs of the Company with the customers and the state of the accounts with individuals and in matters relating thereto, and shall by such declaration pledge himself not to reveal any of the matters which may come to his knowledge in the discharge of his duties except when required so to do by the Directors or by law or by the person to whom such matters relate and except so far as may be necessary in order to comply with any of the provisions in these presents contained.

Cortsey informationactivism.org

(ii) No member shall be entitled to visit or inspect any works of the Company without the permission of the Directors or to require discovery of or any information respecting any details of the Company's trading, or any matter which is or may be in the nature of a trade secret, mystery of trade, secret process or any other matter which may relate to the conduct of the business of the Company and which in the opinion of the Directors, it would be inexpedient in the interest of the Company to disclose. We, the several persons whose names and addresses are subscribed are desirous of being formed into a company in pursuance of these Articles, and we respectively agree to take the number of shares in the Capital of the Company set opposite our respective names.

In short smart city mission gives all the rights to collect taxes, user charges, sell, lease public properties, take loans, earn profit for the share holders ,to the company formed under SPV and confiscates all the rights conferred upon common citizens by constitution of India

Since the Right to Information act 2005 (RTI) was introduced 10 years back, bureaucracy and politicians made several attempts to kill or dilute its provisions. Several attempts were made to sabotage it. However despite various attacks RTI has made a very small but positive impact on governance. Irrespective of the quantity of impact it has shaken wrongdoers inside out. It seems hence they have introduced “mission smart cities.

courtsey www.cartoonstock.com

As far as Smart City Pune project is concerned there is complete Lack of Transparency in the 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 the contract price, which is an 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.

Interestingly when asked about whether the amendments given to Pune Smart city project by councilors of Pune Municipal Corporation ( PMC ) will be accepted or not, Union Urban Development Minister Venkaiah Naidu refusing the chances they would have to strictly adhere to the guidelines laid down under the Smart City Mission and that if they refuse to toe the line, they will have to opt out of the project. On the contrary, event though there are serious violations of the Model Request for Proposal (RFP) and the irregular concessions granted to Mckinsey against the public interest, the central government is silent on it.

The would be Chief executive officer of proposed SPV and presently municipal commissioner PMC has already encroached upon a general body and standing committee’s rights.Though he has not revealed any of PMC’s correspondence with whom it has signed so-called nonfinancial nonbinding Memorandum of understanding (MoU) , he has gone further to assure reimbursement of the amount to an institute without knowledge of a general body and standing committee’s. It seems that he has assured reimbursement as CEO of proposed SPV.

In a letter to principal director of symbiosis Kunal Kumar writes

“I welcome our collaboration wherein MBA—IM students from SCMHRD, Symbiosis would work with us as interns for Smart Cities Mission. This is a path-breaking partnership which brings together academia with Government in mission mode in finding solutions for real life issues faced by the city.

Further, with reference to your email regarding budget proposal based on 60 days of engagement, we convey our agreement with the same. We would, however like you to undertake the expenditure up front and thereafter let us reimburse the amount to you.

We believe this engagement will go a long way in enabling the transformation of Pune city under Smart Cities Mission.”

Interestingly SCMHRD’s name doesn’t appear in the list of PMC’s so-called nonbinding nonfinancial MoU’s it has signed. No one knows how many such agreements he has signed on behalf of PMC.However as far as nonbinding nonfinancial MoU’s that PMC has signed are concerned. The commissioner has categorically said that they will be allowed to participate in the tendering process of SPV and there lies the threat of manipulating proposed so-called transparent tendering process.

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.

Pune Municipal Corporation toconsult "courtesan" on being smart

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Thursday, June 6, 2013

Why political parties did change their stand on RTI and Transparency?

After central information commissions (CIC) decision on Right to Information (RTI), regarding applicability of it to political parties all the parties' unanimously opposed the decision.Interestingle parties' earlier singing song of transparency and accountability suddenly changed their tune. Many of them were scared of disclosure of names of donors. Actually though direct or indirect funding was important factor in bringing political parties under ambit of RTI. To me major role is played in this decision by preamble of constitution of India and preamble of RTI.

Para 86 of this decision says "We may also add that the preamble to the Constitution of India aims at securing to all its citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; and, EQUALITY of status and of opportunity. Coincidentally, the preamble of RTI Act also aims to promote these principles in the form of transparency and accountability in the working of the every public authority. It also aims to create an ‘informed citizenry’, to contain corruption, and to hold government and their instrumentalities accountable to the governed. Political Parties are important political institutions and can play a critical role in heralding transparency in public life. Political Parties continuously perform public functions which define parameters of governance and socio-economic development in the country." moreover, it was also said that the Political Parties are the building blocks of a constitutional democracy.

It seems that political parties were confused while dealing with this case. I guess there was very much importance to argument on confidentiality, transparency, and public interest in this case .It was difficult for political parties to openly defend confidentiality, and with this obligation, they were helpless and unable to oppose transparency and public interest. In addition, Nationalist Congress Party (NCP) and Communist Party of India (CPI) had almost replied to application under section 6 of RTI.

Chandan Bose, PRO, Nationalist Congress Party, in his letter dated 27th November 2010, had informed the complainant “It is very important to mention here that NCP is a non-government organization. Hence, we do not have much more resources nor surplus staff to expedite unusual work, However, I would like to inform you that ours is a National Party duly recognized by Election Commission of India and that from the day of inception of our party, we have been regularly filing our returns to the Income Tax authorities and also to the Election Commission of India along with whatever voluntary contributions received. It is pertinent to mention here that our all obligation towards authorities are up to date. If you feel like, you may collect all the information you desired, from the above said authorities." In other words NCP had agreed that even though it is non - governed organisation it is covered under section 2 (h) (d) (ii) of RTI.

CPI had earlier replied and provided names of top 10 donors to applicant and On the other hand, A.B. Bardhan, General Secretary, CPI, in letter dated 21.3.2011addressed to applicant Anil Bairwal has stated that CPI is a Public Authority under section 2(h) of the RTI Act. The relevant portion of his letter is extracted below :- “(a) Yes, we are Public Authority under section 2(h)(d)(ii) “non-government organizations” substantially financed, directly or indirectly, by funds provided by the appropriate Government. In addition (b), we have our internal Appellate Authority “Central Control Commission.”

Later on all the parties including NCP and CPI changed their stand in CIC. Why this happened?. why political parties are scared of disclosing their funding? As per Transparency International, Money may come into conflict with the democratic principles of civic equality and fair competition in elections and can undermine political representation.

For example

1) When the availability of resources becomes a decisive factor in winning elections instead of candidate proposals.

2)When money contributed to electoral campaigns safeguards private interests and inhibits political parties and candidates representing collective interests to communicate their ideas.

3) When a party in office uses the system and the resources of the State for the benefit of the electoral campaigns of its candidates.

4) When companies contribute to electoral campaigns in exchange for future favours from elected representatives.

5)When illegal groups, such as organized crime, drug-trafficking or other armed groups, support candidates who in performing their duties will represent illegal interests.

6) When resources used to fund electoral campaigns are raised individually by candidates and not by their parties, thereby creating the risk of personal commitment on the part of the candidate to the donor.

7) When candidates use financial resources for inappropriate purposes, such as vote purchasing or other forms of unfair competition.

8) When elected representatives have, in general, a greater commitment to donors than to the public.

9) When representatives use their post and attendant government resources to gain re-election.

10) When civic equality, reflected in the principle of each individual having one vote, is undermined by the unwarranted ability of some to contribute money to politics.

These conflicts affect the legitimacy of elected representatives as well as their ability to develop rules aimed to benefit the public. The negative impact of such on the quality of life of the people multiplies and the democratic system as a whole stands to lose credibility.

Shining a light on political financing is the best way to clean house. When parties and candidates disclose information about funds used to finance their activities, both during electoral campaigns and generally, scrutiny of illegal funds and influence peddling in politics is facilitated.

All politicians as well as the parties and groups that support them are either legally or morally required to report to the public. The accuracy and usefulness of reports will increase to the extent that they are fully disclosed to the public and to the media. Reports should be clear, complete, presented on time and reliable.

However, this is not happening in India only. Since last few years, many countries worldwide are trying bring legislation on political funding and expenditure. Many developed countries already have such legislations and control over funding and expenses of political parties and they make them public.