Thursday, May 17, 2012
LAW STAYED
Monday, January 16, 2012
Transparency at the Transparency Commission
I had made a commitment when I was made an Information Commissioner that I would ensure that I decided most of the cases before me in less than 3 months. By and large, I have been able to fulfill this promise and perhaps the average time for decisions must be around two months. Sometime in June 2011, a RTI application was received by my PIO, asking for the decision in a case registered in May, 2010. My staff could not locate the decision anywhere! I realized that the case had not been listed for hearing inadvertently, and no decision had been given. I realized that if a mistake had been made in one case, it could have been made in some others as well. A careful search of 2010 cases revealed another 110 cases which had been forgotten and missed completely!
We listed these for hearing and in one of them, there was a heart rending story. A Government employee had died in 1993 leaving his widow and young children. The widow was illiterate and poor. Since 1993 she had been struggling to get the pension she was entitled to. Since she was illiterate, she probably could not pursue the matter properly and each time there was a great delay, the system required many more proofs to establish her claim. By the time she barely managed to submit the required papers, it took years and office inefficiencies would not take decisions for some years! The lady appeared before me with her son who was an unskilled laborer, and both of them could not describe the exact sequence of events. The PIO however assured me that all the papers had been put in order and she would get her pension and all the dues soon. It will always haunt me for my life,- that despite running a reasonably efficient setup,- after her 17 year struggle, I was instrumental in delaying succor to her by a full year.
This set me thinking and I realized that there could be many such mistakes, which could result in untold suffering to Citizens who approach judicial and quasi-judicial bodies. In most cases there is no list which citizens can access which will tell them, whether their cases are in queue, and whether any logic is being applied in taking up the matters waiting in this queue. I feel upset when I see anyone jumping a queue at the airport, and in judicial and quasi-judicial bodies, the citizen cannot even see the queue. It is necessary that there is transparency in this matter, and citizens can see the queue and also feel assured that it is being dealt with in a transparent non-arbitrary manner. All judicial and quasi-judicial bodies should first ensure that this queue is very short and also give visibility to citizens in the way they take up the cases.
I took up the matter of listing pending cases in the Central Information Commission with the Chief Information Commissioner, who readily agreed. The ‘List of pending cases’ has been displayed on the website of the CIC at www.cic.gov.in and will be updated every month. In the Central Information Commission which is just six years old, this will lead to an opportunity for us to correct mistakes and also reassure citizens that there is fairness in taking up their cases. In most Commissions and judicial bodies, Citizens suspect arbitrariness and corruption in the listing of cases. The simple act of listing all pending cases publicly, will go a long way in restoring Citizens confidence in these Institutions, and also act as self- regulating check.
shailesh gandhi
Central Information Commissioner
The views expressed by me are my personal views and may
not represent the views of the Commission.
15 January 2012.
I had made a commitment when I was made an Information Commissioner that I would ensure that I decided most of the cases before me in less than 3 months. By and large, I have been able to fulfill this promise and perhaps the average time for decisions must be around two months. Sometime in June 2011, a RTI application was received by my PIO, asking for the decision in a case registered in May, 2010. My staff could not locate the decision anywhere! I realized that the case had not been listed for hearing inadvertently, and no decision had been given. I realized that if a mistake had been made in one case, it could have been made in some others as well. A careful search of 2010 cases revealed another 110 cases which had been forgotten and missed completely!
We listed these for hearing and in one of them, there was a heart rending story. A Government employee had died in 1993 leaving his widow and young children. The widow was illiterate and poor. Since 1993 she had been struggling to get the pension she was entitled to. Since she was illiterate, she probably could not pursue the matter properly and each time there was a great delay, the system required many more proofs to establish her claim. By the time she barely managed to submit the required papers, it took years and office inefficiencies would not take decisions for some years! The lady appeared before me with her son who was an unskilled laborer, and both of them could not describe the exact sequence of events. The PIO however assured me that all the papers had been put in order and she would get her pension and all the dues soon. It will always haunt me for my life,- that despite running a reasonably efficient setup,- after her 17 year struggle, I was instrumental in delaying succor to her by a full year.
This set me thinking and I realized that there could be many such mistakes, which could result in untold suffering to Citizens who approach judicial and quasi-judicial bodies. In most cases there is no list which citizens can access which will tell them, whether their cases are in queue, and whether any logic is being applied in taking up the matters waiting in this queue. I feel upset when I see anyone jumping a queue at the airport, and in judicial and quasi-judicial bodies, the citizen cannot even see the queue. It is necessary that there is transparency in this matter, and citizens can see the queue and also feel assured that it is being dealt with in a transparent non-arbitrary manner. All judicial and quasi-judicial bodies should first ensure that this queue is very short and also give visibility to citizens in the way they take up the cases.
I took up the matter of listing pending cases in the Central Information Commission with the Chief Information Commissioner, who readily agreed. The ‘List of pending cases’ has been displayed on the website of the CIC at www.cic.gov.in and will be updated every month. In the Central Information Commission which is just six years old, this will lead to an opportunity for us to correct mistakes and also reassure citizens that there is fairness in taking up their cases. In most Commissions and judicial bodies, Citizens suspect arbitrariness and corruption in the listing of cases. The simple act of listing all pending cases publicly, will go a long way in restoring Citizens confidence in these Institutions, and also act as self- regulating check.
shailesh gandhi
Central Information Commissioner
The views expressed by me are my personal views and may
not represent the views of the Commission.
15 January 2012.
Saturday, August 14, 2010
Corruption Can be Curbed
Everyday we read about the massive corruption in the Commonwealth Games activities. The electronic media brings the news relentlessly for 24 hours in all its sickening details. As a common citizen I feel an acute sense of revulsion at the scale and brazenness with which some people are ravaging my motherland. I feel a frustrating anger in the knowledge that the corruption cannot be stopped or punished. With the investigation methods and mechanisms in our country,- combined with the legal and judicial system we have evolved,- it is guaranteed that no powerful person will really pay for this corruption. The Coffin scam, Hawala Case, Food for Oil scam, Bhopal gas disaster, anti-Sikh riots, the riots in Gujarat are amongst the myriad cases that have proved that powerful criminals cannot be sent to prison in India. In the rarest of cases if they do go to prison they will spend their time on parole or in air conditioned hospitals. The ‘punishment’ of a wrongdoing can be becoming the Chief Justice of a small State.
Corruption and misgovernance have become our favourite reality shows and entertainment. In a few weeks media will have a new scandal to satisfy our need to be entertained, and perhaps after two decades the corruption surrounding the Commonwealth Games in 2010 will again provide some days of media material when an enquiry report is submitted on this. All of us know that not one powerful person will go to prison to atone for the thousands of crores of public money which have been looted. All those who put their hands in the till know this with complete certainty. We feel very angry about this corruption since it deprives the poorest citizens of their money. The mental picture in my mind is of greedy lechers snatching a morsel from the hands of a poor emaciated girl while molesting her. This corruption is responsible for grabbing the resources which could give the poorest people their food, education and access to healthcare. It is this corruption which provides the justification for the Maoist who picks up the gun.
So long as our current lethargic investigation and judicial delivery systems remain, it looks unlikely that we can stop this corruption. Is there no hope of being able to curtail this? There is another way which could act as a check on this rampant and brazen corruption. The Right to Information provides this path. Section 4 of the RTI Act mandates that information about all projects, sanctions, tenders etc. must be made available to Citizens. Most information about various Government bodies and their activities, must be declared suo moto. It must be published in a manner which ensures widespread dissemination, so that public have minimum resort to the RTI Act. Unfortunately Information Commissions and the Government have paid very little attention to the requirements of Section 4 and its implementation. If details of all the money being spent on the Commonwealth Games projects, their deadlines, the terms and conditions of the contracts had been put on the websites and continuously updated, the brazen purchase of things at 10 or 20 times their worth may not have been possible. When information about all this is in public domain, various people would have sounded the alarm if anything very brazen was being done. If people knew about the deadlines for the works, the budgeted amounts and the overruns they would have questioned the authorities. The fact that information about all transactions was to be put in public domain would have acted as a check on the officers who were plundering the Nation.
The RTI Act had stipulated that this must be done in 2005. Even now if the Information Commissions, Governments, Citizens and media start focussing on implementation of Section 4 as per the RTI Act in letter and spirit we could begin the journey towards curbing corruption. Our Independence would be meaningful and we would have reason to be optimistic.
shailesh gandhi
Everyday we read about the massive corruption in the Commonwealth Games activities. The electronic media brings the news relentlessly for 24 hours in all its sickening details. As a common citizen I feel an acute sense of revulsion at the scale and brazenness with which some people are ravaging my motherland. I feel a frustrating anger in the knowledge that the corruption cannot be stopped or punished. With the investigation methods and mechanisms in our country,- combined with the legal and judicial system we have evolved,- it is guaranteed that no powerful person will really pay for this corruption. The Coffin scam, Hawala Case, Food for Oil scam, Bhopal gas disaster, anti-Sikh riots, the riots in Gujarat are amongst the myriad cases that have proved that powerful criminals cannot be sent to prison in India. In the rarest of cases if they do go to prison they will spend their time on parole or in air conditioned hospitals. The ‘punishment’ of a wrongdoing can be becoming the Chief Justice of a small State.
Corruption and misgovernance have become our favourite reality shows and entertainment. In a few weeks media will have a new scandal to satisfy our need to be entertained, and perhaps after two decades the corruption surrounding the Commonwealth Games in 2010 will again provide some days of media material when an enquiry report is submitted on this. All of us know that not one powerful person will go to prison to atone for the thousands of crores of public money which have been looted. All those who put their hands in the till know this with complete certainty. We feel very angry about this corruption since it deprives the poorest citizens of their money. The mental picture in my mind is of greedy lechers snatching a morsel from the hands of a poor emaciated girl while molesting her. This corruption is responsible for grabbing the resources which could give the poorest people their food, education and access to healthcare. It is this corruption which provides the justification for the Maoist who picks up the gun.
So long as our current lethargic investigation and judicial delivery systems remain, it looks unlikely that we can stop this corruption. Is there no hope of being able to curtail this? There is another way which could act as a check on this rampant and brazen corruption. The Right to Information provides this path. Section 4 of the RTI Act mandates that information about all projects, sanctions, tenders etc. must be made available to Citizens. Most information about various Government bodies and their activities, must be declared suo moto. It must be published in a manner which ensures widespread dissemination, so that public have minimum resort to the RTI Act. Unfortunately Information Commissions and the Government have paid very little attention to the requirements of Section 4 and its implementation. If details of all the money being spent on the Commonwealth Games projects, their deadlines, the terms and conditions of the contracts had been put on the websites and continuously updated, the brazen purchase of things at 10 or 20 times their worth may not have been possible. When information about all this is in public domain, various people would have sounded the alarm if anything very brazen was being done. If people knew about the deadlines for the works, the budgeted amounts and the overruns they would have questioned the authorities. The fact that information about all transactions was to be put in public domain would have acted as a check on the officers who were plundering the Nation.
The RTI Act had stipulated that this must be done in 2005. Even now if the Information Commissions, Governments, Citizens and media start focussing on implementation of Section 4 as per the RTI Act in letter and spirit we could begin the journey towards curbing corruption. Our Independence would be meaningful and we would have reason to be optimistic.
shailesh gandhi
Monday, June 21, 2010
Information Commision goes digital
The picture of a typical Indian government office is quite bleak – thousands of files stacked up everywhere, files moving from one table to next for approval, a clerk taking hours to find one file and if you are unfortunate your file may have gone ‘missing’. But all this can be thing of the past. And the solution is not rocket science. It is very basic computer science!
Until three months back, my office had 9000 files – stacked in various cupboards and shelves. We kept running of cupboards and filing cabinets. Despite having a reasonably efficient staff to locate the files and a well-organised office, on an average it would take five minutes to locate a file. My office receives about 1800 communications a month on an average through post, fax and email. Each of these communications has to be looked into, responded to and then time was spent in putting these pieces of papers and the response, if any, in the correct files. I realized soon that the space available for record keeping as well as efficient record keepers cannot keep up with the escalating numbers of records to be maintained. The Information Commission has decided to digitize all records.
So, my office has adopted a simple yet reliable solution to the problem – we have gone digital! Over the past three months all the 9000 files have been scanned and are now available on the office network for any member of the staff to access. About two weeks back, we stopped receiving paper and started accepting the digital image every day. All new communications come to my office after they have been scanned and it is the soft copy of the communication and the response sent, if any, which is appended with the soft copy of the correct file. For emails, earlier we used to print them and put them in the file. Now we attach the email to the appropriate electronic folder.
A very simple computer program, which is easily duplicable, has been created to manage the work in the office. The program not only makes all files available to every member of the staff at all times, but it also means that any new action taken on the files gets linked to the original file with the click of the mouse. Only letters which have to be sent by the office are printed. Drafts of orders, notices, and other types of communications are reviewed on the computer before printing. I estimate that we would be saving about 20,000 sheets of paper in the next twelve months.
Digital record keeping is definitely the way forward in any office – government or otherwise. The Preamble of the Information Technology Act states that it is an Act to facilitate electronic filing of documents with Government Agencies. Section 4 of the Act provides legal recognition to electronic records; Section 5 provides legal recognition to digital signatures; and Section 7 states that if record is to be retained for a particular period of time it would be deemed to have satisfied that rule if it is available in an electronic format.
While I admit that my office is relatively ‘young’ and most records are less than two years old, I believe that more government offices can move towards making their records electronic. Computer programs can be created and customized to suit the work flow of each office. Not only would record keeping become easier and locating records be a click of a mouse away, incidents of missing records would be minimal. Back-ups of the electronic data can be stored in multiple places, even in a different city, thereby avoiding loss of the records due to fire, floods, etc. If necessary physical records can be kept for a short period of time till it is ascertained that the electronic records are legible and complete.
Any changes made to records could be traced back to the system from which the changes were made. This would promote transparency and accountability in the office and reduce corruption. A lot of corruption takes place by losing records or removing papers or substituting papers. The other way is predating papers. All of this could be caught, once an office goes digital. The computer program can also help to gauge the productivity of the staff as well as it could indicate who is taking how long to complete a particular task. The cost of going digital is a fraction of the cost incurred in record keeping. There would be other small but significant cost savings in the form of less usage of paper, files, printer ink, etc. More importantly, decision making becomes faster as time taken to transfer a file from one table or one office to another for approval/signing would get cut down as everything would be available over the internet or intranet.
My office was able to make the transformation in a very short span of time and with no requirement for any additional budget. Simple changes can make a big difference –all we need to do to make those simple changes is to set our mind to it. If all Government offices go digital, the impact on governance and transparency could be huge. As byproducts we could get a reduction of corruption and paper usage.
shailesh gandhi
June 21, 2010
Until three months back, my office had 9000 files – stacked in various cupboards and shelves. We kept running of cupboards and filing cabinets. Despite having a reasonably efficient staff to locate the files and a well-organised office, on an average it would take five minutes to locate a file. My office receives about 1800 communications a month on an average through post, fax and email. Each of these communications has to be looked into, responded to and then time was spent in putting these pieces of papers and the response, if any, in the correct files. I realized soon that the space available for record keeping as well as efficient record keepers cannot keep up with the escalating numbers of records to be maintained. The Information Commission has decided to digitize all records.
So, my office has adopted a simple yet reliable solution to the problem – we have gone digital! Over the past three months all the 9000 files have been scanned and are now available on the office network for any member of the staff to access. About two weeks back, we stopped receiving paper and started accepting the digital image every day. All new communications come to my office after they have been scanned and it is the soft copy of the communication and the response sent, if any, which is appended with the soft copy of the correct file. For emails, earlier we used to print them and put them in the file. Now we attach the email to the appropriate electronic folder.
A very simple computer program, which is easily duplicable, has been created to manage the work in the office. The program not only makes all files available to every member of the staff at all times, but it also means that any new action taken on the files gets linked to the original file with the click of the mouse. Only letters which have to be sent by the office are printed. Drafts of orders, notices, and other types of communications are reviewed on the computer before printing. I estimate that we would be saving about 20,000 sheets of paper in the next twelve months.
Digital record keeping is definitely the way forward in any office – government or otherwise. The Preamble of the Information Technology Act states that it is an Act to facilitate electronic filing of documents with Government Agencies. Section 4 of the Act provides legal recognition to electronic records; Section 5 provides legal recognition to digital signatures; and Section 7 states that if record is to be retained for a particular period of time it would be deemed to have satisfied that rule if it is available in an electronic format.
While I admit that my office is relatively ‘young’ and most records are less than two years old, I believe that more government offices can move towards making their records electronic. Computer programs can be created and customized to suit the work flow of each office. Not only would record keeping become easier and locating records be a click of a mouse away, incidents of missing records would be minimal. Back-ups of the electronic data can be stored in multiple places, even in a different city, thereby avoiding loss of the records due to fire, floods, etc. If necessary physical records can be kept for a short period of time till it is ascertained that the electronic records are legible and complete.
Any changes made to records could be traced back to the system from which the changes were made. This would promote transparency and accountability in the office and reduce corruption. A lot of corruption takes place by losing records or removing papers or substituting papers. The other way is predating papers. All of this could be caught, once an office goes digital. The computer program can also help to gauge the productivity of the staff as well as it could indicate who is taking how long to complete a particular task. The cost of going digital is a fraction of the cost incurred in record keeping. There would be other small but significant cost savings in the form of less usage of paper, files, printer ink, etc. More importantly, decision making becomes faster as time taken to transfer a file from one table or one office to another for approval/signing would get cut down as everything would be available over the internet or intranet.
My office was able to make the transformation in a very short span of time and with no requirement for any additional budget. Simple changes can make a big difference –all we need to do to make those simple changes is to set our mind to it. If all Government offices go digital, the impact on governance and transparency could be huge. As byproducts we could get a reduction of corruption and paper usage.
shailesh gandhi
June 21, 2010
Friday, October 3, 2008
Michchami Dukdam
2nd October, 2008.
Dear Friends,
I am happy to inform all of you that i have started working as a Central Information Commissioner from 18th September. I was sworn in at 4.00pm on that day and started work in my office at 5.00pm. In the Central Commission certain departments are allocated to each Commissioner and presently the departments allocated to me are all relating to Delhi: Secretariat, Directorate of Education GNCT, Directorate of Health and Family Welfare-GNCTD, District Sessions Judge, DSSSB, Land and Building Department-GNCTD, MCD-GNCTD, and Secretariat of Legislative Assembly. The appeals and complaints pending disposal in these are about 1250 and I have started listing hearings of cases.
I have a staff of two people provided to me and am depending more on the help of volunteers;- which is not really sustainable. Cases have been listed for hearing from 6th October, and i am reiterating my commitment to ensure that there will be no pendency of cases with me of over 3 months by end of March 2009.
There is an admission of a mistake i wish to make. When the names were being proposed from Civil society for the position of Central Information Commissioner, it was suggested that we should offer to do this job without a salary, house, car etc. I had raised the issue about how i could survive, and it was suggested that some individuals or organisations would take care of these. Without much thought i agreed to this. When i was actually selected, i began to think a little carefully about how i would stay in Delhi. I felt that taking help from individuals, organisations or Corporates would not be right. I then started thinking, i would try and stay frugally like Aruna Roy, Nikhil Dey, Jean Dreze, Medha Patkar and other activists whose spartan lifestyle i admire.
I went to Delhi and am presently staying in a Hostel. The actual reality of trying to practise my romanticised frugal living is now staring at me. I went out for dinner with a friend and when i saw the bill of about 700 rupees, i cringed internally. Living alone in a hostel, without my wife Bharti is becoming difficult emotionally. I had planned to give up the car and start using rickshaws and Public transport. However, i am not able to bring myself to do this. I realised i could do my work much better if i paid the volunteers who are working with me in the office;- and i cannot do it. I am beginning to worry that trying to continue to live without salary, house etc. will affect my performance, and could result in failing for all the wrong reasons. Various friends have also advised me to accept the salary, house etc..
I realised that it is my ego which is preventing me from admitting my mistake. I am therefore apologising for the mistake i had made in stating that i would work without salary, house etc., and now plan to take these. I have discussed the matter with Bharti and decided that the salary would be used entirely to facilitate my work and for other RTI related work. I am aware that there will be criticism of my step, but feel it is more honest to admit a mistake.
Some friends will be disappointed by this turnaround. But i need to admit this mistake, and correct it. I shall fulfill the role of Information Commissioner diligently. I once again apologise to friends who might feel a betrayal.
Note: Jains greet each other on their new year day by saying, " Michchami Dukdam"- forgive me;- for any hurt i might have caused you during the past year. Thus only having cleansed myself can i enjoy the new year when you forgive me.
Dear Friends,
I am happy to inform all of you that i have started working as a Central Information Commissioner from 18th September. I was sworn in at 4.00pm on that day and started work in my office at 5.00pm. In the Central Commission certain departments are allocated to each Commissioner and presently the departments allocated to me are all relating to Delhi: Secretariat, Directorate of Education GNCT, Directorate of Health and Family Welfare-GNCTD, District Sessions Judge, DSSSB, Land and Building Department-GNCTD, MCD-GNCTD, and Secretariat of Legislative Assembly. The appeals and complaints pending disposal in these are about 1250 and I have started listing hearings of cases.
I have a staff of two people provided to me and am depending more on the help of volunteers;- which is not really sustainable. Cases have been listed for hearing from 6th October, and i am reiterating my commitment to ensure that there will be no pendency of cases with me of over 3 months by end of March 2009.
There is an admission of a mistake i wish to make. When the names were being proposed from Civil society for the position of Central Information Commissioner, it was suggested that we should offer to do this job without a salary, house, car etc. I had raised the issue about how i could survive, and it was suggested that some individuals or organisations would take care of these. Without much thought i agreed to this. When i was actually selected, i began to think a little carefully about how i would stay in Delhi. I felt that taking help from individuals, organisations or Corporates would not be right. I then started thinking, i would try and stay frugally like Aruna Roy, Nikhil Dey, Jean Dreze, Medha Patkar and other activists whose spartan lifestyle i admire.
I went to Delhi and am presently staying in a Hostel. The actual reality of trying to practise my romanticised frugal living is now staring at me. I went out for dinner with a friend and when i saw the bill of about 700 rupees, i cringed internally. Living alone in a hostel, without my wife Bharti is becoming difficult emotionally. I had planned to give up the car and start using rickshaws and Public transport. However, i am not able to bring myself to do this. I realised i could do my work much better if i paid the volunteers who are working with me in the office;- and i cannot do it. I am beginning to worry that trying to continue to live without salary, house etc. will affect my performance, and could result in failing for all the wrong reasons. Various friends have also advised me to accept the salary, house etc..
I realised that it is my ego which is preventing me from admitting my mistake. I am therefore apologising for the mistake i had made in stating that i would work without salary, house etc., and now plan to take these. I have discussed the matter with Bharti and decided that the salary would be used entirely to facilitate my work and for other RTI related work. I am aware that there will be criticism of my step, but feel it is more honest to admit a mistake.
Some friends will be disappointed by this turnaround. But i need to admit this mistake, and correct it. I shall fulfill the role of Information Commissioner diligently. I once again apologise to friends who might feel a betrayal.
Note: Jains greet each other on their new year day by saying, " Michchami Dukdam"- forgive me;- for any hurt i might have caused you during the past year. Thus only having cleansed myself can i enjoy the new year when you forgive me.
Tuesday, July 15, 2008
Prakash Kardaley
A year back Prakash Kardaley called me up at around 11.00am. I was busy with something and promised to call him after a while. When I called at 12.15pm, he mentioned his face was lathered for a shave. Jokingly he said, “Let us talk, since you cannot see me anyway.” We talked for about 30 to 40 minutes about various issues. Both of us felt we needed to meet and I promised to go down to Pune to meet him from Mumbai within a week for a long discussion about various matters. At about 12.45pm when I put down the phone, I did not know that that was the last time I would talk with him. In less than two hours Vijay Kumbhar called me and said, “Masterji is no more.” It was a shattering blow for many of us in the RTI movement.
I first interacted with Prakash Kardaley on the Humjanenge board. Then we met at the Lonavala RTI activists meeting he had organized in early 2004. He was a passionate, and pragmatic visionary. Prakash bonded RTI activists across the Country, and was very adaptable to change. He could chisel and craft his words with great precision. This led to his analyzing the words in the RTI act with clinical precision, without clouding his judgement . In our initial encounters he would often chide me for not reading the exact words in the Act and letting my emotions dictate my actions and arguments. I am glad I paid attention to those verbal whiplashings. Prakash was a hard taskmaster for those whom he mentored. With Vijay Kumbhar, Shivaji Raut and others I had the privilege of being angrily called ‘Gadhav’ – donkey in Marathi,- by him.
He was one of the pioneers of the RTI movement, who trained many like me. The best tribute we can pay to Prakash Kardaley would be to see the Right to Information movement transforming India’s governance and empowering the poorest Citizen. Let us all commit to make that happen very soon. That would be a worthy tribute for my Guru, mentor and friend Prakash Kardaley.
I first interacted with Prakash Kardaley on the Humjanenge board. Then we met at the Lonavala RTI activists meeting he had organized in early 2004. He was a passionate, and pragmatic visionary. Prakash bonded RTI activists across the Country, and was very adaptable to change. He could chisel and craft his words with great precision. This led to his analyzing the words in the RTI act with clinical precision, without clouding his judgement . In our initial encounters he would often chide me for not reading the exact words in the Act and letting my emotions dictate my actions and arguments. I am glad I paid attention to those verbal whiplashings. Prakash was a hard taskmaster for those whom he mentored. With Vijay Kumbhar, Shivaji Raut and others I had the privilege of being angrily called ‘Gadhav’ – donkey in Marathi,- by him.
He was one of the pioneers of the RTI movement, who trained many like me. The best tribute we can pay to Prakash Kardaley would be to see the Right to Information movement transforming India’s governance and empowering the poorest Citizen. Let us all commit to make that happen very soon. That would be a worthy tribute for my Guru, mentor and friend Prakash Kardaley.
Sunday, July 13, 2008
We can reduce Corruption
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.
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.
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