Using Right to Information, I have obtained evidence of two serious impediments to curbing corruption amongst Government officers in Maharashtra. Perhaps this may be true of other States as well. Both of these practices have no sanction in law, and if Citizens bring some pressure, these can be reduced considerably.
1. One fairly serious problem is that when criminal or corruption charges are leveled against government servants, an illegal practice has been followed by the State by which the Police does not enquire or investigate without getting prior approval from the particular department. This obviously delays investigations and at times,- by collusion,- no investigations take place. As per the Criminal Procedure Code the Police has to register all complaints and investigate cognizable offences expeditiously. After a crime is reported, only an investigation can reveal whether the crime has been committed. Police investigating crimes is the only way that the law enforcement system can work. The State of Maharashtra has taken a position since many decades that when a cognizable offence is alleged to have been committed by a Government servant, the State will first decide whether investigations should be allowed. This is being claimed to be done on the basis of GR ATO 2772/1-V-A of 21 February, 1972. This is illegal. Most Police officers and Government servants have been quoting this GR without reading it. A careful reading of this GR shows that it does not even talk of criminal complaints lodged with the police being referred to the Government. It only talks of how departments should first verify charges internally before rushing to ask for special investigating teams of police to conduct investigations. A perfectly reasonable GR has been misinterpreted widely for decades, leading to an illegal position being taken by the State. I would also like to mention that no GR can be issued,- even now,- to achieve this objective, since it would be a subversion of the CrPc and the rule of law.
2. Even when an investigation is conducted against Public servants and the ACB finds evidence of corruption, Section 197 of the CrPc is misinterpreted to ensure that Public servants guilty of corruption and other criminal actions are not prosecuted. Section 197 reads, “(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction”-… of the government.
This section has been misinterpreted to mean that whenever there is any charge
against a Public servant, no prosecution can be undertaken without prior sanction from the State. Thus even in cases of traps and disproportionate assets, sanction for prosecution is sought. The sanction is often delayed or not given,-depending on the bribery skills and connections of the accused. There are instances of sanction being refused after years with no reasons being given! I have obtained evidence from the ACB that in 17 cases, sanction for prosecution has not been given for over six months. In some of these the sanction was pending over five years. I would like to point out that as per Act 21 of 2006, no department can delay a file for over 45 days. Thus delays in giving sanctions should attract the charge of dereliction of duty under Section 10 (2) of this Act. There is no reason why the State cannot take action against officers responsible for delaying sanction for prosecution for over 45 days.
Powerful corrupt Public servants have developed a very good modus operandi with the collusion of other corrupt officials misusing the above two methods. First sanction for investigation (which is not required under any law) is delayed or not given. This practice is a subversion of the Criminal Procedure Code. The delays help the criminals to cover up their crimes, and the evidence. The really powerful criminals ensure that no investigation can take place. If the investigations take place,- and they are not able to influence the investigations,- they can still stall sanction for prosecution by getting departments to violate the provisions of Act 21 of 2006. Is it a surprise that honest police officials feel frustrated by this series of obstacles in bringing criminal Public servants to book? It is not surprising that they either get frustrated or decide to take the bribes which are offered very freely. The result is that the “Protection of Corruption” act is being is being enforced very effectively. This can be changed by two simple steps by the Home department:
1. A clarificatory GR can be issued that investigations against Public servants do not need any prior permission from the State. This is the law. The GR is required because of a long history of disinformation which exists.
2. A GR that the Home department will ask for action against officials under Act 21 of 2006 in case departments do not give sanctions for prosecution within 45 days. Rejection of these sanctions should be rare, and should be done by the Secretary in charge of the department with a reasoned order.
What is being proposed does not need any change of laws or setting up any special mechanism. The suggested measures are merely to enforce the existing laws.
If Citizens make these demands, a considerable reduction in corruption is possible by strengthening the hands of the Police to enforce the ‘Prevention of Corruption’ Act.
Showing posts with label Right to Information. Show all posts
Showing posts with label Right to Information. Show all posts
Sunday, July 13, 2008
Monday, July 7, 2008
Right to Information-path to Swaraj
The Right to Information (RTI) is a fundamental right of Citizens and a formal National law codifying this right has been effective throughout India from Vijayadashmi , 12 October 2005. It is extremely simple to use and empowers all Indian Citizens to monitor their Government and improve its governance. We have a democracy with a reasonably fair system of elections, a good constitution and yet realize that it has not delivered satisfactorily to its masters-the Citizens. We have blamed our politicians, bureaucrats, economics, policies and so on. This has happened because we have missed the essence of democracy. The real essence of democracy is the fundamental belief that the individual Citizen is a sovereign in her own right, and she gives up part of the sovereignty to the State, in return for which she gets the rule of law. The individual sovereign Citizen has become the ‘bechara’ who feels completely helpless. Our democracy has been an elective democracy, where the Citizen excercises his choice once in five years, and is then left powerless. Right to Information (RTI) gives him an easy and simple method to monitor his Government. It equips him with information with which he can expose and shame a corrupt system to correct itself. This can lead to a true participatory Government- the Swaraj that we desire and deserve.
A simple query without any forms and an application fee of 10 rupees gives the individual Citizen the Right to Information from all ‘Public authorities’. Every office of our Government is mandated by law to have a Public Information Officer (PIO), who must provide the information requisitioned by a Citizen within 30 days. Failure to provide information without reasonable cause, can lead to an imposition of a penalty of 250 rupees per day on the PIO personally. There are only ten categories of information which can be denied. The information is provided at a fee of 2 rupees per page. The biggest gain is that it needs no followup or personal interaction with the PIO. I have never gone to meet a PIO or even telephoned anybody to get information when using RTI. The Citizen uses the process of RTI and can often get the information at a total cost of about 50 to 70 rupees.
In this blog, a lot of my posts are likely to be about Right to Information. All that I write in this blog or elsewhere is in Public domain, and everyone is encouraged to reproduce whatever they wish, without any permissions from me. A reader might benefit by getting some basic information about RTI from www.satyamevajayate.info
shailesh gandhi
Mera Bharat Mahaan…
Nahi Hai,
Per Yeh Dosh Mera Hai.
A simple query without any forms and an application fee of 10 rupees gives the individual Citizen the Right to Information from all ‘Public authorities’. Every office of our Government is mandated by law to have a Public Information Officer (PIO), who must provide the information requisitioned by a Citizen within 30 days. Failure to provide information without reasonable cause, can lead to an imposition of a penalty of 250 rupees per day on the PIO personally. There are only ten categories of information which can be denied. The information is provided at a fee of 2 rupees per page. The biggest gain is that it needs no followup or personal interaction with the PIO. I have never gone to meet a PIO or even telephoned anybody to get information when using RTI. The Citizen uses the process of RTI and can often get the information at a total cost of about 50 to 70 rupees.
In this blog, a lot of my posts are likely to be about Right to Information. All that I write in this blog or elsewhere is in Public domain, and everyone is encouraged to reproduce whatever they wish, without any permissions from me. A reader might benefit by getting some basic information about RTI from www.satyamevajayate.info
shailesh gandhi
Mera Bharat Mahaan…
Nahi Hai,
Per Yeh Dosh Mera Hai.
Sunday, July 6, 2008
'Public Authority' in RTI
PUBLIC AUTHORITY under RTI
Whereas there is a clear understanding that all Citizens can avail of the Right to Information, there is some lack of clarity about which institutions have been mandated to give information by the Right to Information Act. Most of this arises because of the arrogance of many who think they cannot be answerable to the Common Citizen of India. They forget that the Citizen is the sovereign of this democracy. The RTI act lays down that all ‘public authorities’ have to provide information to the Citizen. Public authority has been defined by Section 2 (h) of the act as follows:
“h) public authority means any authority or body or institution of self government established or constituted,—
(a) by or under the Constitution ;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
(d) by notification issued or order made by the appropriate Government,
and includes any--
(i) body owned, controlled or substantially financed;
(ii) non-Government organisation substantially financed,
directly or indirectly by funds provided by the appropriate Government;”
Effectively a) , b) and c) and d) mean any authority or body which we consider as Government in common parlance- all Ministries and their departments, Municipal Bodies, Panchayats, and so on. This also includes Courts, Universities, UPSC, Public Sector Undertakings like Nationalised Banks, LIC, and UTI amongst others. All Stock Exchanges and SEBI are Public authorities and subject to RTI. The issue of coverage of Stock exchanges has been settled in a well reasoned order by a full bench decision of the Central Commission in appeal 2006/00684 & CIC/AT/A/2007/00106.
It is worth remembering that establishments of the Parliament, Legislatures, Judiciary, President and the Governors have also been brought under the surveillance of the Common Citizen. It is unfortunate that some ‘Constitutional functionaries’ and other bodies have been displaying their arrogance and ignorance by claiming that they are above the law.
Subclause d (i), and (ii) together mean any non-government organisations which are substantially owned, controlled or financed directly or indirectly by the Government would be covered. Thus aided schools and colleges are Public Authorities, as also any trusts or NGOs which have significant Government nominees; or Companies where the Government either owns substantial stake, or has given substantial finance, are directly covered under the RTI Act. Substantial finance must take into account tax-incentives, subsidies and other concessions as well.
There is some confusion about the words substantial finance. This confusion also prevails in some of the decisions of the Information Commissions as well. Let us again look at the relevant words carefully:
2 “h) public authority means any authority or body….
(d)…..and includes any--
(j) body owned, controlled or substantially financed;
(ii) non-Government organisation substantially financed,
directly or indirectly by funds provided by the appropriate Government;”
The finance could be either as investment or towards the expenses, or both. The way in which the words have been placed, indicates that perhaps (i) relates to investments and (ii) relates to the running expenses.
Thus every institution which is owned by the Government is clearly covered. By any norms, whenever over 50% of the investment in a body belongs with any entity, it is said to be owned by that entity. Since bodies owned by Government have been mentioned separately, the words ‘controlled’ and ‘substantially financed’ will have to be assigned some meaning not covered by ownership. Thus it is evident that the intention of the Parliament is to extend the scope of the right to other organisations, which are not owned by it. No words in an Act can be considered to be superfluous, unless the contradiction is so much as to render a significant part meaningless or they violate the preamble. Therefore it becomes necessary to consider a situation where an entity may be controlled by Government without ownership or substantial finance. Such a situation exists when a Charity Commissioner or Registrar of Societies appoints an administrator to run the affairs of a Trust or Society, or a Court Liquidator takes over administration of some body. The interpretation given by some that ‘control’ means any kind of control like that excercised by the Registrar of Societies over Cooperative societies , or by RBI on all private banks is too wide, and certainly not supported by the law. If we take this very wide interpretation, all Companies are controlled by the Registrar of Companies, all Sales tax dealers by the Sales tax authorities, and all factories by the Inspector of factories and so on. By this logic, all Companies, sales tax dealers and factories amongst others will have to give information under the RTI Act. Such a wide interpretation is clearly not intended in the law.
Let us now consider what are the implications of the words ‘substantially financed.’ It is obvious that as per Section 2 (h) (i) ‘ body …substantially financed’ would be a body where the ownership may not lie with the Government, nor the control. Hence clearly the wording ‘substantially financed’ would have to be given meaning at less than 50% holding. The Company Law gives significant rights to those who own 26% of the shares in a Company. Perhaps this could be taken to define the criterion of ‘substantial finance’. The finance could be as equity, or subsidies in land or concessions in taxation.
Similarly some definition is required where the State provides money for the running expenses of an Institution as covered under (ii). Presently, aided schools and colleges have all clearly been accepted as ‘Public authorities’ though there appears to be no clarity in the matter of NGOs and other organisations which are receiving significant amounts of finance.
The key approach and philosophy of the RTI act appears to be that since the State acts on behalf of the Citizens, wherever the State gives money, the Citizen has a right to know. In my opinion if the money given for the running expenses is over 1 crore the body should be considered as receiving ‘substantial finance’ and is covered in the definition of a ‘Public authority’.
At times it has been argued that to be a Public authority, a body must meet the criterion of being a ‘State’ against which a writ is maintainable. If the intention of the Parliament was to restrict the right to bodies which are the ‘State’, it would have said so, since the concept is well established. The term ‘Public Authority’ is broader and more generic than the word ‘State’ under Article 12 of the Constitution. Hence the intention of the Parliament was clearly based on giving the Citizens,- its masters,- the right to information over all entities owned by them, as well as where their money is being invested or spent.
Whereas there is a clear understanding that all Citizens can avail of the Right to Information, there is some lack of clarity about which institutions have been mandated to give information by the Right to Information Act. Most of this arises because of the arrogance of many who think they cannot be answerable to the Common Citizen of India. They forget that the Citizen is the sovereign of this democracy. The RTI act lays down that all ‘public authorities’ have to provide information to the Citizen. Public authority has been defined by Section 2 (h) of the act as follows:
“h) public authority means any authority or body or institution of self government established or constituted,—
(a) by or under the Constitution ;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
(d) by notification issued or order made by the appropriate Government,
and includes any--
(i) body owned, controlled or substantially financed;
(ii) non-Government organisation substantially financed,
directly or indirectly by funds provided by the appropriate Government;”
Effectively a) , b) and c) and d) mean any authority or body which we consider as Government in common parlance- all Ministries and their departments, Municipal Bodies, Panchayats, and so on. This also includes Courts, Universities, UPSC, Public Sector Undertakings like Nationalised Banks, LIC, and UTI amongst others. All Stock Exchanges and SEBI are Public authorities and subject to RTI. The issue of coverage of Stock exchanges has been settled in a well reasoned order by a full bench decision of the Central Commission in appeal 2006/00684 & CIC/AT/A/2007/00106.
It is worth remembering that establishments of the Parliament, Legislatures, Judiciary, President and the Governors have also been brought under the surveillance of the Common Citizen. It is unfortunate that some ‘Constitutional functionaries’ and other bodies have been displaying their arrogance and ignorance by claiming that they are above the law.
Subclause d (i), and (ii) together mean any non-government organisations which are substantially owned, controlled or financed directly or indirectly by the Government would be covered. Thus aided schools and colleges are Public Authorities, as also any trusts or NGOs which have significant Government nominees; or Companies where the Government either owns substantial stake, or has given substantial finance, are directly covered under the RTI Act. Substantial finance must take into account tax-incentives, subsidies and other concessions as well.
There is some confusion about the words substantial finance. This confusion also prevails in some of the decisions of the Information Commissions as well. Let us again look at the relevant words carefully:
2 “h) public authority means any authority or body….
(d)…..and includes any--
(j) body owned, controlled or substantially financed;
(ii) non-Government organisation substantially financed,
directly or indirectly by funds provided by the appropriate Government;”
The finance could be either as investment or towards the expenses, or both. The way in which the words have been placed, indicates that perhaps (i) relates to investments and (ii) relates to the running expenses.
Thus every institution which is owned by the Government is clearly covered. By any norms, whenever over 50% of the investment in a body belongs with any entity, it is said to be owned by that entity. Since bodies owned by Government have been mentioned separately, the words ‘controlled’ and ‘substantially financed’ will have to be assigned some meaning not covered by ownership. Thus it is evident that the intention of the Parliament is to extend the scope of the right to other organisations, which are not owned by it. No words in an Act can be considered to be superfluous, unless the contradiction is so much as to render a significant part meaningless or they violate the preamble. Therefore it becomes necessary to consider a situation where an entity may be controlled by Government without ownership or substantial finance. Such a situation exists when a Charity Commissioner or Registrar of Societies appoints an administrator to run the affairs of a Trust or Society, or a Court Liquidator takes over administration of some body. The interpretation given by some that ‘control’ means any kind of control like that excercised by the Registrar of Societies over Cooperative societies , or by RBI on all private banks is too wide, and certainly not supported by the law. If we take this very wide interpretation, all Companies are controlled by the Registrar of Companies, all Sales tax dealers by the Sales tax authorities, and all factories by the Inspector of factories and so on. By this logic, all Companies, sales tax dealers and factories amongst others will have to give information under the RTI Act. Such a wide interpretation is clearly not intended in the law.
Let us now consider what are the implications of the words ‘substantially financed.’ It is obvious that as per Section 2 (h) (i) ‘ body …substantially financed’ would be a body where the ownership may not lie with the Government, nor the control. Hence clearly the wording ‘substantially financed’ would have to be given meaning at less than 50% holding. The Company Law gives significant rights to those who own 26% of the shares in a Company. Perhaps this could be taken to define the criterion of ‘substantial finance’. The finance could be as equity, or subsidies in land or concessions in taxation.
Similarly some definition is required where the State provides money for the running expenses of an Institution as covered under (ii). Presently, aided schools and colleges have all clearly been accepted as ‘Public authorities’ though there appears to be no clarity in the matter of NGOs and other organisations which are receiving significant amounts of finance.
The key approach and philosophy of the RTI act appears to be that since the State acts on behalf of the Citizens, wherever the State gives money, the Citizen has a right to know. In my opinion if the money given for the running expenses is over 1 crore the body should be considered as receiving ‘substantial finance’ and is covered in the definition of a ‘Public authority’.
At times it has been argued that to be a Public authority, a body must meet the criterion of being a ‘State’ against which a writ is maintainable. If the intention of the Parliament was to restrict the right to bodies which are the ‘State’, it would have said so, since the concept is well established. The term ‘Public Authority’ is broader and more generic than the word ‘State’ under Article 12 of the Constitution. Hence the intention of the Parliament was clearly based on giving the Citizens,- its masters,- the right to information over all entities owned by them, as well as where their money is being invested or spent.
Friday, June 27, 2008
Contempt of Citizen's Sovereignty
Contempt of Citizen’s Sovereignty
Sometime back the Chief Justice of India has made two statements in Public speeches, which have a seminal bearing on the functioning of our democracy. He said that judges are above the Right to Information law. Later,- in Kerala,- he justified the existence of the Contempt powers of the Court, saying that,” No executive officer will obey court orders if they are not afraid of the provisions of contempt of court.” The first statement seeks to put judges beyond the RTI law and the second misses the major point why Citizens have been highlighting the misuse of contempt powers.
We must understand that there are two types of Contempt of Court-criminal contempt and civil contempt. If somebody does not obey the orders of the court, he is held guilty of committing ‘civil contempt’. Nobody has questioned the need for continuing the provisions of ‘civil contempt’ to enforce the orders of the courts. On the other hand, the provisions of ‘criminal contempt of court’ are attracted if the court feels its decisions, or conduct, are questioned; as they say if the judge or court are scandalized. Citizens have been questioning the need and desirability of continuing with the ‘criminal contempt’ provisions.
It is well recognized that the center of a democratic setup is the individual Citizen who is a sovereign in her own right. She gives up part of the sovereignty to the State in return for a Rule of Law. The Instrumentalities of the State exist to serve the Citizens who are the Masters. The Masters have the right to scrutinize and question their Public servants,-including the judges,- about the actions that are taken on their behalf. The existence and legitimacy of the Public servants is derived from the service they provide to the Citizens. Some special privileges and immunity may be given to the Public servants only to ensure that they can function to serve this objective. Otherwise the key principle of democracy is equality before the law. As Justice Mathew had said, “Be they ever so high, the law is above them.”
Let us now look at three sets of Public servants and test the principle of the respect and protection they need, to be able to discharge their duties for the Citizens. Let us take the elected representatives, the Police and the Judges to test this principle. The elected representatives have the highest legitimacy because they subject themselves to a direct approval by the Citizens every five years. It can be argued that they need to be able to command respect from the Citizens, without which respect for the laws they frame will not be forthcoming. They frame policies, which have political and financial impact on the present as well as future generations. They have to face people directly in every conceivable place and time, and if special privileges or protection against criticism is not given to them, they will not be able to discharge their functions. Let us now picture a policeman who has to enforce the law. He again faces Citizens,- even enraged or inflamed mobs,- and must function in the midst of all the dirt and grime to enforce the law. If Citizens do not respect him,- or believe he is corrupt and a criminal himself,- can he discharge his law enforcement function to the Public? On the other hand a judge sits in a cloistered and protected environment and dispenses justice to uphold the law. He is in a very safe and secure environment and discharges his functions at his own convenient pace comfortably sitting in a chair.
The Police and elected representatives face our criticism and the judges themselves have ordained greater transparency and accountability for them. They cannot claim supernatural power to try Citizens for contempt for speaking or writing critically about their conduct. We understand the need for the Court to have the powers to try for Contempt if its orders are not implemented. But the privilege of being able to terrorize Citizens and media into not examining or questioning their actions or decisions is an anachronism. Criticism strengthens all democratic institutions and the power of the Citizens to question their Servants is Supreme. If allegations and charges of impropriety or corruption render Public Servants ineffective then we must consider extending the warm obfuscating cloak of ‘Contempt powers’ to all of them. We make allegations against MPs and MLAs, carry out sting operations against them, and nobody including the Courts have argued that this is the cause of our misgovernance. The Courts infact have ruled that Citizens have a right to know even the personal assets and details of criminal charges from those who seek our vote. Can the executive and the judiciary then be exempt from this? It is unfortunate that the Courts,- which made lofty pronouncements of the Right To Information being a fundamental right of Citizens,- have been extremely reluctant to subject themselves to the provisions of this law.
A myth is being propagated that the judiciary is much better than the other instrumentalities of the State. This is untrue and most probably the same diseases which afflict the rest of our governance exist in the Courts. All voices are terrorized into silence by muzzling. Nobody knows the truth; and the peril is that the decline could be more than elsewhere because of this cloak of Contempt with which the judiciary protects itself. Let us stop mouthing the cliché, “We have faith in the Judiciary,” and give the clear statement that we shall question, since it is our fundamental right.
The Court has no authority to make Laxman Rekhas for its Masters-the Citizens of India. It is we who will draw the Citizen’s Rekhas which the Public servants shall not cross. When a Prime Minister of India tried to muzzle our Freedom of expression and press, we defeated her at the elections. For unwarranted or motivated allegations, the Citizens including the Prime Minister and judges have the protection of the laws on defamation. There is absolutely no justification for the judges to give themselves the power of the Lord to be above all criticism and trnsparency. The Criminal contempt of Court must be scrapped.
“A discriminating irreverence is the creator and protector of human liberty”. –MARK TWAIN
Sometime back the Chief Justice of India has made two statements in Public speeches, which have a seminal bearing on the functioning of our democracy. He said that judges are above the Right to Information law. Later,- in Kerala,- he justified the existence of the Contempt powers of the Court, saying that,” No executive officer will obey court orders if they are not afraid of the provisions of contempt of court.” The first statement seeks to put judges beyond the RTI law and the second misses the major point why Citizens have been highlighting the misuse of contempt powers.
We must understand that there are two types of Contempt of Court-criminal contempt and civil contempt. If somebody does not obey the orders of the court, he is held guilty of committing ‘civil contempt’. Nobody has questioned the need for continuing the provisions of ‘civil contempt’ to enforce the orders of the courts. On the other hand, the provisions of ‘criminal contempt of court’ are attracted if the court feels its decisions, or conduct, are questioned; as they say if the judge or court are scandalized. Citizens have been questioning the need and desirability of continuing with the ‘criminal contempt’ provisions.
It is well recognized that the center of a democratic setup is the individual Citizen who is a sovereign in her own right. She gives up part of the sovereignty to the State in return for a Rule of Law. The Instrumentalities of the State exist to serve the Citizens who are the Masters. The Masters have the right to scrutinize and question their Public servants,-including the judges,- about the actions that are taken on their behalf. The existence and legitimacy of the Public servants is derived from the service they provide to the Citizens. Some special privileges and immunity may be given to the Public servants only to ensure that they can function to serve this objective. Otherwise the key principle of democracy is equality before the law. As Justice Mathew had said, “Be they ever so high, the law is above them.”
Let us now look at three sets of Public servants and test the principle of the respect and protection they need, to be able to discharge their duties for the Citizens. Let us take the elected representatives, the Police and the Judges to test this principle. The elected representatives have the highest legitimacy because they subject themselves to a direct approval by the Citizens every five years. It can be argued that they need to be able to command respect from the Citizens, without which respect for the laws they frame will not be forthcoming. They frame policies, which have political and financial impact on the present as well as future generations. They have to face people directly in every conceivable place and time, and if special privileges or protection against criticism is not given to them, they will not be able to discharge their functions. Let us now picture a policeman who has to enforce the law. He again faces Citizens,- even enraged or inflamed mobs,- and must function in the midst of all the dirt and grime to enforce the law. If Citizens do not respect him,- or believe he is corrupt and a criminal himself,- can he discharge his law enforcement function to the Public? On the other hand a judge sits in a cloistered and protected environment and dispenses justice to uphold the law. He is in a very safe and secure environment and discharges his functions at his own convenient pace comfortably sitting in a chair.
The Police and elected representatives face our criticism and the judges themselves have ordained greater transparency and accountability for them. They cannot claim supernatural power to try Citizens for contempt for speaking or writing critically about their conduct. We understand the need for the Court to have the powers to try for Contempt if its orders are not implemented. But the privilege of being able to terrorize Citizens and media into not examining or questioning their actions or decisions is an anachronism. Criticism strengthens all democratic institutions and the power of the Citizens to question their Servants is Supreme. If allegations and charges of impropriety or corruption render Public Servants ineffective then we must consider extending the warm obfuscating cloak of ‘Contempt powers’ to all of them. We make allegations against MPs and MLAs, carry out sting operations against them, and nobody including the Courts have argued that this is the cause of our misgovernance. The Courts infact have ruled that Citizens have a right to know even the personal assets and details of criminal charges from those who seek our vote. Can the executive and the judiciary then be exempt from this? It is unfortunate that the Courts,- which made lofty pronouncements of the Right To Information being a fundamental right of Citizens,- have been extremely reluctant to subject themselves to the provisions of this law.
A myth is being propagated that the judiciary is much better than the other instrumentalities of the State. This is untrue and most probably the same diseases which afflict the rest of our governance exist in the Courts. All voices are terrorized into silence by muzzling. Nobody knows the truth; and the peril is that the decline could be more than elsewhere because of this cloak of Contempt with which the judiciary protects itself. Let us stop mouthing the cliché, “We have faith in the Judiciary,” and give the clear statement that we shall question, since it is our fundamental right.
The Court has no authority to make Laxman Rekhas for its Masters-the Citizens of India. It is we who will draw the Citizen’s Rekhas which the Public servants shall not cross. When a Prime Minister of India tried to muzzle our Freedom of expression and press, we defeated her at the elections. For unwarranted or motivated allegations, the Citizens including the Prime Minister and judges have the protection of the laws on defamation. There is absolutely no justification for the judges to give themselves the power of the Lord to be above all criticism and trnsparency. The Criminal contempt of Court must be scrapped.
“A discriminating irreverence is the creator and protector of human liberty”. –MARK TWAIN
Thursday, June 26, 2008
Nhava Sheva fraud
Nhava Sheva Transharbour Sea Link- Fraud explained
We all expect and accept corruption in the large Infrastructure projects. But this project gives us the smoking gun;- where we have proof of the brazen manner in which a fraud is being committed.
Here are the facts mostly unearthed using Right to Information. My enquiries started in September 2007. The Supreme Court had ruled that the disqualification of Anil Ambani’s Company for the bidding of the Mumbai Trans Harbour Sea Link Project (MTHL) was bad and that ‘the decision to exclude REL/HECL is arbitrary, whimsical and unreasonable’.
I was curious to know some details about this project, which has been said to be around 3000 crores, and asked for copies of the minutes of meeting at which the decision to disqualify REL/HECL was taken. When I received the minutes, they revealed some really disturbing matters.
1. Anil Ambani’s REL with Hyundai was disqualified on grounds of financial inadequacy! The discussions show that REL itself had adequate financial standing to qualify.
2. Crisil was involved in the evaluation of the bids. The meeting brings out the fact that Crisil was a consultant to Ms. Seaking which was linked with Mukesh Ambani’s Reliance group. Crisil qualified Seaking, and disqualified Anil Ambani’s group on the grounds of financial inadequacy! The issue of conflict of interests was raised at the meeting and forgotten!
3. Another very curious aspect was that another Company China Harbour was disqualified on what appeared to me to be absurd reasons! Further RTI queries revealed that the Company had had given proof of having made a longer bridge 32.5km bridge in China, whereas the Nhava Sheva bridge is just 22 km. It had made the 32.5 km bridge for just 851 crores, whereas MSRDC’s estimate for the Nhava Sheva 22 km. was over 2000 crores hence it was not allowed to bid!
(Note: Indian contractors have managed to jack up the price of the 5.6 km. Sealink to over 1600 crores, where China Harbour is the main subcontractor.)
Consequent to the Supreme Court’s order Anil Ambani was allowed to quote for this BOT project. When the bids were opened, the Anil Ambani Company had offered to build the bridge, recover its costs through tolls and then hand over the bridge to the State in nearly 10 years, whereas the Mukesh Ambani group had asked for revenues for over 75 years. Now the State has decided not to give the project to the Anil Ambani company, but to build it itself! This is obviously because there is not enough padding in his offer
to pay the huge bribes now. The State calims that the offer should be about 44 years to recover the revenue. I have asked for details of the minutes of meetings at MSRDC, but a simple calculation is very revealing. The assumptions by the bidders have been for 50000 vehicles per day at Rs.150/ per trip. A simple calculation based on this shows that this would lead to a revenue of Rs. 75 lacs per day or about Rs. 270 crores each year.
Based on a return of Rs.270 crores per year and a rate of 6%, 8% and 10% returns, the Net present Value will be as shown in the table below:
This shows that the Mukesh Ambani estimate is uncannily close to the MSRDC’s estimate, whereas the Anil Ambani group is estimating the cost as about half,-about 1700 to 2000 crores. The difference of 10 years, 44 years and 75 years actually is much lower the moment you factor the NPV. This is almost like the equated instalments paid by in any normal loan transaction with constant repayments. The State is refusing a reasonable offer made by Anil Ambani on the grounds that it is too low! Anil Ambani is also playing along to get some humour the administration. The State now says it will build the bridge itself and will levy an impact fee-an increased tax,-to pay for the bribes?
In brief:
1. It appears that initially the project was designed to be given to the Mukesh Ambani group with over 50% being reserved for ‘education’-a la Enron.
2. To achieve this others like China Harbour and the Anil Ambani group were disqualified by a rigged process.
3. Incidentally China Harbour has built a 32.5 km seabridge in China for 851 crores and is the main subcontractor for the Worli-Bandra sealink. Anil Ambani wanting to best his elder brother played the spoilsport and bid about 50% -which did not leave much for bribes.
4. In a weird development, the State says Anil Ambani’s bid is too low and Mukesh Ambani’s bid too high, hence it will undertake the project. After four years of proposing a BOT, the State gives no explanation for this turnaround. Anil Ambani has obviously been pacified in some manner. Anil Ambani has made a reasonable offer, and the State has qualified his consortium with Hyundai. China Harbour was disqualified for the ability to build a bridge of 32.5 km for 851 crores, and after the bidding Anil Ambani’s group is not awarded the project because we will get it at a reasonable cost-translating into roughly 2000 crores.
5. Now the State will decide to build this and the current Government will award it for around 6000 to 7000 crores. Next year when the political dispensation will probably change the new ministry will hike it maybe 10000 crores. Do we remember ENRON?
Citizens, business houses and others must protest strongly and make the Government act in Public interest. The methodology being adopted has brazen CORRUPTION written all over, and offers us an opportunity to reverse it.
shailesh gandhi
We all expect and accept corruption in the large Infrastructure projects. But this project gives us the smoking gun;- where we have proof of the brazen manner in which a fraud is being committed.
Here are the facts mostly unearthed using Right to Information. My enquiries started in September 2007. The Supreme Court had ruled that the disqualification of Anil Ambani’s Company for the bidding of the Mumbai Trans Harbour Sea Link Project (MTHL) was bad and that ‘the decision to exclude REL/HECL is arbitrary, whimsical and unreasonable’.
I was curious to know some details about this project, which has been said to be around 3000 crores, and asked for copies of the minutes of meeting at which the decision to disqualify REL/HECL was taken. When I received the minutes, they revealed some really disturbing matters.
1. Anil Ambani’s REL with Hyundai was disqualified on grounds of financial inadequacy! The discussions show that REL itself had adequate financial standing to qualify.
2. Crisil was involved in the evaluation of the bids. The meeting brings out the fact that Crisil was a consultant to Ms. Seaking which was linked with Mukesh Ambani’s Reliance group. Crisil qualified Seaking, and disqualified Anil Ambani’s group on the grounds of financial inadequacy! The issue of conflict of interests was raised at the meeting and forgotten!
3. Another very curious aspect was that another Company China Harbour was disqualified on what appeared to me to be absurd reasons! Further RTI queries revealed that the Company had had given proof of having made a longer bridge 32.5km bridge in China, whereas the Nhava Sheva bridge is just 22 km. It had made the 32.5 km bridge for just 851 crores, whereas MSRDC’s estimate for the Nhava Sheva 22 km. was over 2000 crores hence it was not allowed to bid!
(Note: Indian contractors have managed to jack up the price of the 5.6 km. Sealink to over 1600 crores, where China Harbour is the main subcontractor.)
Consequent to the Supreme Court’s order Anil Ambani was allowed to quote for this BOT project. When the bids were opened, the Anil Ambani Company had offered to build the bridge, recover its costs through tolls and then hand over the bridge to the State in nearly 10 years, whereas the Mukesh Ambani group had asked for revenues for over 75 years. Now the State has decided not to give the project to the Anil Ambani company, but to build it itself! This is obviously because there is not enough padding in his offer
to pay the huge bribes now. The State calims that the offer should be about 44 years to recover the revenue. I have asked for details of the minutes of meetings at MSRDC, but a simple calculation is very revealing. The assumptions by the bidders have been for 50000 vehicles per day at Rs.150/ per trip. A simple calculation based on this shows that this would lead to a revenue of Rs. 75 lacs per day or about Rs. 270 crores each year.
Based on a return of Rs.270 crores per year and a rate of 6%, 8% and 10% returns, the Net present Value will be as shown in the table below:
| Interest Rate | 10 years | 44 years | 75 years | |
| 6% | 1987 | 4173 | 4443 | NPV in crores |
| 8% | 1812 | 3269 | 3364 | NPV |
| 10% | 1659 | 2663 | 2698 | NPV |
| Anil’offer | MRDCestimate | Mukesh offer |
This shows that the Mukesh Ambani estimate is uncannily close to the MSRDC’s estimate, whereas the Anil Ambani group is estimating the cost as about half,-about 1700 to 2000 crores. The difference of 10 years, 44 years and 75 years actually is much lower the moment you factor the NPV. This is almost like the equated instalments paid by in any normal loan transaction with constant repayments. The State is refusing a reasonable offer made by Anil Ambani on the grounds that it is too low! Anil Ambani is also playing along to get some humour the administration. The State now says it will build the bridge itself and will levy an impact fee-an increased tax,-to pay for the bribes?
In brief:
1. It appears that initially the project was designed to be given to the Mukesh Ambani group with over 50% being reserved for ‘education’-a la Enron.
2. To achieve this others like China Harbour and the Anil Ambani group were disqualified by a rigged process.
3. Incidentally China Harbour has built a 32.5 km seabridge in China for 851 crores and is the main subcontractor for the Worli-Bandra sealink. Anil Ambani wanting to best his elder brother played the spoilsport and bid about 50% -which did not leave much for bribes.
4. In a weird development, the State says Anil Ambani’s bid is too low and Mukesh Ambani’s bid too high, hence it will undertake the project. After four years of proposing a BOT, the State gives no explanation for this turnaround. Anil Ambani has obviously been pacified in some manner. Anil Ambani has made a reasonable offer, and the State has qualified his consortium with Hyundai. China Harbour was disqualified for the ability to build a bridge of 32.5 km for 851 crores, and after the bidding Anil Ambani’s group is not awarded the project because we will get it at a reasonable cost-translating into roughly 2000 crores.
5. Now the State will decide to build this and the current Government will award it for around 6000 to 7000 crores. Next year when the political dispensation will probably change the new ministry will hike it maybe 10000 crores. Do we remember ENRON?
Citizens, business houses and others must protest strongly and make the Government act in Public interest. The methodology being adopted has brazen CORRUPTION written all over, and offers us an opportunity to reverse it.
shailesh gandhi
Tuesday, May 27, 2008
Maharashtra Chief Minister's Relief Fund
To, 26 May, 2008
The Chief Minister of Maharashtra,
Mumbai 400032.
Sub.: Chief Minister’s Relief fund
Dear Mr. Chief Minister,
I have obtained information under Right to Information about the functioning of the CM’s relief fund and discovered some disturbing facts during my inspection of the files of the fund on 22nd May 2008 at your office. I am outlining below the main objectionable actions in the working of the fund from the papers seen by me:
1. The CM’s Relief Fund is a Trust, which appears to follow no process by which it can be called a Trust. Though registered as a Trust with the Charity Commissioner, it is claimed to be exempted from any of the regulations of a Trust by a GR. There is no record of any meetings of the Trustees, thus leading to the conclusion that there is no record of a board of trustees being in charge. Thus it appears to be a virtual fictitious Trust.
2. The Trust was registered with the object ‘To assist people affected by natural calamities’. This is the belief of all common citizens like me, and was the only reason for setting it up. Right to Information has revealed that money has been given for mango festivals, making buildings, gazal programs, kabaddi competitions, trips abroad, and so on. A circular of GR dated 15 November, 2001 has been shown to justify these activities in which the objects of the trust have been expanded to try and cover giving of alms on virtually any count. Thus the objectives of the Trust are claimed to have been changed radically,-almost to the point of rendering its original objectives incidental,- without any meeting of the Board of Trustees!
3. It is also revealed that Commissioner of Sugar routinely issues circulars to all sugar factories that crushing licences will not be issued to them unless two rupees per tonne are deposited with the CM’s Reilef fund. This is an illegal and extortionist action. The last time such an action was highlighted was in the cement scam during Shri Antulay’s Chief Ministership, when the Citizens had voiced a very strong disapproval.
4. In a number of cases, the official of the Trust has made comments that giving the money will not be as per the rules of the trust; at other times there are notings that this is violative of the 25% limit imposed by Income Tax on all Trusts for expenditure not covered by its objectives. Yet money has been given as per the CM’s arbitrary directive. There are notings at times that there is not enough money in the Trust, yet money has been given for purposes which are not in line with its objectives.
I am attaching a note to illustrate some of these, with copies of the papers received from your office.
I have obtained information from 1996 onwards and it covers the operation of the fund during three different Chief Ministers. I concede that the issues I have raised are related to a systematic decline of governance, and you would perhaps have been only following earlier practices. Some of these are improper, some immoral and some clearly illegal. Operating a Trust without any checks; not follwing the discipline of following its objective of providing relief for major calamities; violating rules and also the provisions of the Income tax act; using the State’s machinery and powers to force sugar mills and government employees to give money to the Trust are all unworthy acts. You have personally shown the sagacity of accepting that the Chief Minister’s Relief fund comes under the purview of the Right To Information Act. I request you to display the same qualities of a statesman to declare that the CM’s relief fund will henceforth be used only for victims of calamities and disasters. Please also declare that the State will not issue diktats to force institutions or individuals to give money to the fund. It is quite likely that you may be given wrong advice to neglect this letter. I would be very glad to meet you to explain the reasons for you to act in a manner to retain the sanctity of the fund, and your position. As the Chief Minister of this State it is your duty to do this. This single act could become the precursor for a new journey towards better governance under your leadership.
Thanking you,
Yours truly,
shailesh gandhi
Mera Bharat Mahaan…
Nahi Hai,
Per Yeh Dosh Mera Hai.
Enclosed: Note giving some details in the individual cases with copies of the papers obtained during inspection at your office.
A few select cases where CM’s relief fund has been misused.
The attached papers are labeled 1, 2 etc.,as per the points.
1. 5 lacs given to Marathwada Sahitya Parishad 20 May, 1997- remark by secretary that proposal does not fall in the objects of the trust, but money has given many times like this before.
2. 5 lacs given to Press Club of India (New Delhi)note of 7 October, 1997 says the Club informed that various Chief Minister’s who addressed their seminars had given 2 to 8 lacs (and hence by implication since Maharashtra CM had been given the opportunity to address the seminar) 9 lacs should be given! A fee by the CM to speak! The notings state that this does not fit in the objects of the fund and there are not adequate funds. Yet 5 lac rupees were given on the same day. A certificate of utilization shows Rs.1.5lacs spent for constructing toilets for the Press Club.
3. 50 lacs sanctioned for the construction of Shanmukhananda Hall 24 November, 1997. It shows that there vare not adequate funds and hence 10 lacs is given as first installment.
4. 1 lac given on a letter by Madhav Godbole -2 may, 2003 for ‘Centre for Advanced Strategic Studies’. Note mentions financial assistance cannot be approved.
5. 9 lacs given to Vanrai, Pune of Shri Mohan Dharia for computers, software, fax machine, internet connection and making a progress report- 9 May, 2003. A total of 25 lacs had been given before this. Note states giving this money is not as per the rules of the CM’s Relief fund.
6. 25 lacs given to Rajbhavan Club- 5 August, 2003 for sport’s equipment. Note states this is not in line with the objectives of the trust.
7. 1 lac for Maharashtra Carrom Association- 29 November, 2003. Note states this violates the IT requirement that less than 25% can be spent for purposes other than objectives.
8. 5 lacs given for Gandhi Film Foundation-19 November, 2003. Note says this money is going to be used for building corpus of the foundation, which is not permissible. The note categorically states that for such purposes the foundation should get loans commercially.
9. 5 lacs for Yuvak Biradari for purchasing Motor Vehicles- 24 November, 2003. Note says purchasing motor vehicles is not permissible under the rules of the CM’s relief fund.
10. 5 lacs for Superseven Cricket Association- 15 January, 2004. Note says money cannot be given in the rules of the CM’s fund.
The Chief Minister of Maharashtra,
Mumbai 400032.
Sub.: Chief Minister’s Relief fund
Dear Mr. Chief Minister,
I have obtained information under Right to Information about the functioning of the CM’s relief fund and discovered some disturbing facts during my inspection of the files of the fund on 22nd May 2008 at your office. I am outlining below the main objectionable actions in the working of the fund from the papers seen by me:
1. The CM’s Relief Fund is a Trust, which appears to follow no process by which it can be called a Trust. Though registered as a Trust with the Charity Commissioner, it is claimed to be exempted from any of the regulations of a Trust by a GR. There is no record of any meetings of the Trustees, thus leading to the conclusion that there is no record of a board of trustees being in charge. Thus it appears to be a virtual fictitious Trust.
2. The Trust was registered with the object ‘To assist people affected by natural calamities’. This is the belief of all common citizens like me, and was the only reason for setting it up. Right to Information has revealed that money has been given for mango festivals, making buildings, gazal programs, kabaddi competitions, trips abroad, and so on. A circular of GR dated 15 November, 2001 has been shown to justify these activities in which the objects of the trust have been expanded to try and cover giving of alms on virtually any count. Thus the objectives of the Trust are claimed to have been changed radically,-almost to the point of rendering its original objectives incidental,- without any meeting of the Board of Trustees!
3. It is also revealed that Commissioner of Sugar routinely issues circulars to all sugar factories that crushing licences will not be issued to them unless two rupees per tonne are deposited with the CM’s Reilef fund. This is an illegal and extortionist action. The last time such an action was highlighted was in the cement scam during Shri Antulay’s Chief Ministership, when the Citizens had voiced a very strong disapproval.
4. In a number of cases, the official of the Trust has made comments that giving the money will not be as per the rules of the trust; at other times there are notings that this is violative of the 25% limit imposed by Income Tax on all Trusts for expenditure not covered by its objectives. Yet money has been given as per the CM’s arbitrary directive. There are notings at times that there is not enough money in the Trust, yet money has been given for purposes which are not in line with its objectives.
I am attaching a note to illustrate some of these, with copies of the papers received from your office.
I have obtained information from 1996 onwards and it covers the operation of the fund during three different Chief Ministers. I concede that the issues I have raised are related to a systematic decline of governance, and you would perhaps have been only following earlier practices. Some of these are improper, some immoral and some clearly illegal. Operating a Trust without any checks; not follwing the discipline of following its objective of providing relief for major calamities; violating rules and also the provisions of the Income tax act; using the State’s machinery and powers to force sugar mills and government employees to give money to the Trust are all unworthy acts. You have personally shown the sagacity of accepting that the Chief Minister’s Relief fund comes under the purview of the Right To Information Act. I request you to display the same qualities of a statesman to declare that the CM’s relief fund will henceforth be used only for victims of calamities and disasters. Please also declare that the State will not issue diktats to force institutions or individuals to give money to the fund. It is quite likely that you may be given wrong advice to neglect this letter. I would be very glad to meet you to explain the reasons for you to act in a manner to retain the sanctity of the fund, and your position. As the Chief Minister of this State it is your duty to do this. This single act could become the precursor for a new journey towards better governance under your leadership.
Thanking you,
Yours truly,
shailesh gandhi
Mera Bharat Mahaan…
Nahi Hai,
Per Yeh Dosh Mera Hai.
Enclosed: Note giving some details in the individual cases with copies of the papers obtained during inspection at your office.
A few select cases where CM’s relief fund has been misused.
The attached papers are labeled 1, 2 etc.,as per the points.
1. 5 lacs given to Marathwada Sahitya Parishad 20 May, 1997- remark by secretary that proposal does not fall in the objects of the trust, but money has given many times like this before.
2. 5 lacs given to Press Club of India (New Delhi)note of 7 October, 1997 says the Club informed that various Chief Minister’s who addressed their seminars had given 2 to 8 lacs (and hence by implication since Maharashtra CM had been given the opportunity to address the seminar) 9 lacs should be given! A fee by the CM to speak! The notings state that this does not fit in the objects of the fund and there are not adequate funds. Yet 5 lac rupees were given on the same day. A certificate of utilization shows Rs.1.5lacs spent for constructing toilets for the Press Club.
3. 50 lacs sanctioned for the construction of Shanmukhananda Hall 24 November, 1997. It shows that there vare not adequate funds and hence 10 lacs is given as first installment.
4. 1 lac given on a letter by Madhav Godbole -2 may, 2003 for ‘Centre for Advanced Strategic Studies’. Note mentions financial assistance cannot be approved.
5. 9 lacs given to Vanrai, Pune of Shri Mohan Dharia for computers, software, fax machine, internet connection and making a progress report- 9 May, 2003. A total of 25 lacs had been given before this. Note states giving this money is not as per the rules of the CM’s Relief fund.
6. 25 lacs given to Rajbhavan Club- 5 August, 2003 for sport’s equipment. Note states this is not in line with the objectives of the trust.
7. 1 lac for Maharashtra Carrom Association- 29 November, 2003. Note states this violates the IT requirement that less than 25% can be spent for purposes other than objectives.
8. 5 lacs given for Gandhi Film Foundation-19 November, 2003. Note says this money is going to be used for building corpus of the foundation, which is not permissible. The note categorically states that for such purposes the foundation should get loans commercially.
9. 5 lacs for Yuvak Biradari for purchasing Motor Vehicles- 24 November, 2003. Note says purchasing motor vehicles is not permissible under the rules of the CM’s relief fund.
10. 5 lacs for Superseven Cricket Association- 15 January, 2004. Note says money cannot be given in the rules of the CM’s fund.
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