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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.

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.

* RTI is applicable to cooperatives because Constitution is supreme

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

Tuesday, February 9, 2016

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

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