Friday, April 17, 2009

Blatant misuse of Government funds

The Chief Minister of Tamil Nadu led an all party delegation on Dec 4th to Delhi to meet the PM on the issue of the troubles faced by Sri Lankan Tamils due to the war waged by Sri Lanka against the LTTE. It is now the norm that all parties shed crocodile tears for them. This is obvious from how the CM initially threatened that all his MPs will resign and then later backtracked. Such posturing and tokenism is not uncommon with politicians. But then, if such posturing is made by using public money, that is just not acceptable. And that is what precisely happened in this case. On 31st Dec 2008, I had filed an RTI application asking whether the government had borne the expenses for this all party trip and if so the expenses incurred and the members who travelled as a part of the delegation.

As expected, the expenses were indeed borne by the government.

Totally 17 people had been part of the delegation. They were,

1. Mr.M.Karunanidhi, Chief Minister - DMK
2. Mr.K.Anbazhagan, Finance Minister - DMK
3. K.Abdul Basid, MLA - DMK
4. Mr.Sudarsanam, Legislative Party Leader - INC
5. Mr.Thirumavalavan, General Secretary - VCK
6. Dr.K.Krishnaswamy - Puthiya Thamizhagam Party
7. Mr.Tiruppur Altaf, General Secretary - Tamil Nadu National League.
8. Mr. S.Hyder Ali, President - TN Muslim Munnetra Kazhagam
9. Mr.Poovai Jaganmoorthy, President - Puratchi Bharatham
10. Bishop Esra Sarkunam, President - Indian Social Justice Iyakkam
11. Mr.P.V.Kathiravan - Forward Block
12. Mr.K.Sellamuthu, President - Uzhavar Uzhaippaliar Party
13. Mr.K.Veeramani, President - Dravidar Kazhagam
14. Mrs.Rathika Sarathkumar- All India Samathuva Makkal Party
15. Mr.Vijaya T.Rajendar, President - Latchiya Dravida Munnetra Kazhagam
16. Mr.R.M.Veerappan, President - M.G.R.Kazhagam.
17. Mr.Jagathratchagan, Founder - Democratic Progressive Party (Jananayaka Munnetra Kazhagam)

The total expenses incurred for the delegation vist were Rs.13,83,228. That comes to an average of Rs.81,366 per head

The split up is

Air Travel = 11,55,835
Transport = 1,36,351
Boarding = 66,259
Misccellaneous expenditure = 24,783.

My questions are,
1. Why should the government fund these expenses? It is not a governmental visit, but a political visit. It is plain misuse of public money.

2. Of those who were part of the delegation, parties like AISMK and Latchiya DMK have not faced any elections so far. I have not even heard of parties like Uzhavar Uzhaippaliar Party and Indian Social Justice Iyakkam. Moreover, if I am right, TN Muslim Munnetra Kazhagam, was not even a political party in Dec 2008 and registered as one only in 2009. Then on what basis are they eligible to be funded by public money?

3. The worst part is the quantum of expenses. The visit to Delhi and back costs Rs.81,366 per head. Air travel alone comes to 68,000 per head. This is outrageous. Looks like everybody, including people who are not MLAs, representatives of parties which have never faced elections and representatives of groups that are not even political parties, has flown business class at the expense of the tax payer. An economy class ticket from Chennai to Delhi will cost in the range of Rs. 3000 one way. That means instead of spending just Rs.6,000, they have spent close to 70,000 for the tickets. Also the transport expenses come to 1,36,351. Where all did they move around in Delhi, that the transport expenses came to this much.

I think it is plain and blatant misuse of public money. The government has no right to waste hard earned money of the citizens paid to the government as taxes. The government should ensure the money is recovered from each one of them and also ensure that such incidents are not repeated in future.

This was covered in the Indian Express today. It can be seen here. Though the point they raised is not the one I intended. The article says that 14 lakhs went down the drain because the visit did not achieve anything. But my point is something else. Even if the visit were successflul my argument is that most of the people who were part of the delagation did not representethe citizens in anyway. and hence public money cannot fund their travel. That too business class travel. I am sure that, if not for the fact that government money is funding the trip, most of them would have chosen economy class. Public money is considered as something that nobody needs to be bothered about. That is where the problem starts.

Wednesday, April 08, 2009

TN Information Commissioners' violations of the Right to Information act.

In my discussions with the State Information Commissioners, I could see that there was a lack of understanding of the penal provisions of the Right to Information act. Though these can be seen from the orders, I will point out two discussions that are illuminating.

In a discussions with the Chief Commissioner, I raised the issue of the Commission's orders not adhering to the penal provisions of the Act. I told him that even in a written order Show Cause Notice should be issued if there has been a delay. This was not being usually done. But he picked up one order and read it out to me. This was on an appeal to the commission. Usually written orders on appeals to the commission are passed after 6 months from the date of appeal. This order said "The Public Authority is directed to supply the information within 30 days of this order, and if not done, the Public Information Officer, has to appear before the commission to explain why penalties should not be imposed on him/her". He read it out proudly saying that he had issued Show Cause Notice in a written order. I then pointed out that this is still a violation because, even if the PIO supplies information now, there has still been more than 6 months delay in supplying information. But as per the order, this need not be explained, since the order says that ONLY IF information is not given within 30 days, the PIO has to show cause. When I pointed this out to him, he couldnt answer it, and said he will think about it.

Another discussion was with Mr.T.R.Ramasamy. Here again I raised the issue of the commission not adhering to the Penal Provisions of the act. He said that he was indeed imposing penalties wherever needed. I tried to show an example where the commissioner Mr.T.Srinivasan had recommended disciplinary proceedings under section 20(2) of the act, but has not imposed penalty under Section 20(1). I questioned such an order, saying that section 20(2) cannot be imposed without 20(1). He argued that it was not yet clear whether both can be imposed in the same case. But he was missing the point. Section 20(2) differs from 20(1) only by a word "persistently". That is, if a PIO persistently violates the act, 20(2) should be used. If the PIO violates the act in that case, 20(1) should be invoked. So a PIO might not have violated the act persistently but only in a specific case, so 20(1) has to be invoked, but 20(2) should not be. But when section 20(2) is invoked, saying that the PIO is persistently violating the act, then it is obvious that in this case violation has happened and so section 20(1) has to be imposed. When I pointed out this difference, he claimed that there was no such difference in the act. Then I pulled out the act and he referred his own book and only then did he realise that there was a difference between section 20(1) and Section 20(2). That is, for the past 8-9 months orders have been passed, without understanding this distinction.

Coming to the orders that have been passed, I have collected a few of them here.

Section 20(1) of the Act is clear on the penalties and there is no scope for different interpretations here. Penalty has to be imposed in all the cases where the Public Information officer has,

1. without any reasonable cause refused to receive an application for information
2. without any reasonable cause not furnished information within the time specified under sub-section (1) of section 7
3. malafidely denied the request for information
4. knowingly given incorrect, incomplete or misleading information
5. destroyed information which was the subject of the request
6. obstructed in any manner in furnishing the information.

In all of the above cases penalty SHALL be imposed. It is very important to note that there is no scope for discretion here once one of the six above scenarios have been established. Discretion lies in only deciding whether reasonable cause is present or not. Once that is done, then penalty has to be imposed. The Act says that the Public Information Officer shall be given a reasonable opportunity of being heard before any penalty is imposed on him. So the commissioners are supposed to issue Show Cause Notices in all of the above cases.

Here are the examples to show up these violations by the commissioners.

1. 8615/08 - 5-Dec-2008 - RR, SNA - In this case a hearing was first held on 4th July 2008 where Show Cause Notice was issued. But when it came up for hearing again on 5th Dec 2008 there was no talk about the SCN. The commission just notes that information has been given, and hence nothing else needs to be done. (Both the orders are enclosed)

2. 8865/08 - 3-Dec-2008 - SR,GR,RR - The dates given in this order are confusing. But the commission notes that there has been a delay despite an order of the Commission. But since information was given, the case is closed. This is a clear violation of the act. The commission HAS to impose the penalty in this case as per the act. But they havent done that.

3. 9341/08 - 15-Dec-2008 - TR,RP - The commission notes in the last para that for an RTI application filed in 21-Feb-2007, the petitioner was given a reply only on 12-Dec-2008 which amounts to a delay of about 22 months. And that too incomplete. But the commission does not issue a SCN. What were the commissioners thinking here?

4. 10091/08 - 29-Dec-2008 - TS,SNA - Information has been received only after a previous order of the commission. Exact delay is not known since the order does not give the date of RTI application. But when it is heard a second time, and known that information has been given, the commission does not even bother to check whether there has been any "Reasonable cause" for the delay.

5. 12160/08 - 15-Dec-2008 - Here the commission had previously passed orders(7656/08) to give information within 10 days. Even at that time there was no show cause notice despite the delay. Today when it came up for hearing again, after 4 months of previous orders, information is still not fully given. But still there is no show cause notice. The PIO is just given another 5 days.

6. 13026/08 - 23-Dec-08 - This is again a terrible order, though the violation of the PIO is not delay here. The RTI application sought some information which was partly with this department. The rest was with some other department. ANd so at the hearing, the PIO says that information related to his department has been furnished, but the rest relates to a different department and so cant be given. THis is a clear violation by the PIO since he should have transferred the application to the department concerned. Even teh commissioner does not seem to realise this and directs the petitioner to approach that department for the rest of the information. Hopeless.

7. 13953/08 - 29-Dec-2008 - For an RTI application filed on 15th Jun 2007 seeking four sets of information, three of those replies were given only on the date of the hearing (29th dec, after 18 months). But still no show cause notice. No examination of reasonable cause. Nothing.

8. 14182/08 - 22-Dec-08 - Here, on the first two lines of the second page of the order, the commission notes that the Public Authority has not given a direct honest answer. In spite of this, the commission gives 30 days time. And if information is not given within this time, penalty will be imposed. But what about the delays that happened so far. The commission does not bother. This is just an empty threat.

In other months there have been even more funny cases.

9127/08 - 4-July-2008 - Date of RTI application is 15-12-2006. A show cause notice was already issued at a previous hearing on 16-May-2007. Even there were some problems in giving information (the actual problems are not very clear from the order), but the commission again issues a Show Cause Notice. Double Show Cause Notice. The penalty should have been imposed now since an apporutnity was already given.

7664/08 - 28-Aug-2008. Sec 20(1) of the RTI act talks about penalties in case of violations by PAs. Sec 20(2) talks about recommending Disciplinary Proceedings in cases of PERSISTENT violations by PAs. The difference between both is that sec 20(2) has to be invoked when a PA is seen to be violating again and again. So it is common sense that whenever Sec20(2) is invoked, Section 20(1) should also be invoked. Whereas, Sec 20(1) can be invoked without section 20(2). But in this case. Section 20(2) is invoked without calling in Section 20(1). This is plain lack of knowledge about the act by the commissioners.

The solution to these kind of violations is coming up with a set of guidelines for issuing Show Cause Notices and imposition of penalties. This has been done CIC as can be seen in these minutes

All the decisions referred to here can be downloaded from here.

Friday, April 03, 2009

Information on completed cases can be obtained under RTI Act

Information on completed cases can be obtained under RTI Act: Activist
Shyam Ranganathan

It would not apply to notified intelligence and security organisations

CHENNAI: The Directorate of Vigilance and Anti-Corruption (DVAC) has not been forthcoming with information though the State government clarified that the exemption of the DVAC from the purview of the RTI Act did not include cases where the investigation was completed.

V. Madhav, an RTI activist, says that he had filed a petition asking for some information on number of cases where investigations had been completed and the identity of those convicted after investigation, from the DVAC, on October 4, 2008. When no information was forthcoming after 30 days, he filed a first appeal and also visited the Public Information Officer on November 24, 2008. As he was not even allowed to meet the PIO, he filed a petition with the State Information Commission.


“I am aware that the DVAC has been exempted under the Right to Information Act by G.O. No. 158 dated 26 August, 2008, but there has been a later press release No. 786 dated 23 September, 2008 from the government, which clarified that information regarding cases where investigations have been completed, information can be obtained,” Mr. Madhav says in his petition to the State Information Commission on December 11, 2008.

He also argues that Section 24(4) of the Act, under which the DVAC has been exempted, mentions that the provisions of the Act would not apply to “intelligence and security organisations” which may be identified by the State and the Central government, “provided that the information pertaining to allegations of corruption and human rights violations shall not be excluded under this sub-section.”

While the High Court has recently upheld the exemption of the DVAC from the RTI Act, the State Information Commission is yet to take up his petition for examination, Mr. Madhav says, while pointing out that the Central Bureau of Investigation (CBI) and the Central Vigilance Commissioner, the equivalent bodies under the Central government, are under the purview of the Act.

Wednesday, April 01, 2009

Update on DVAC and TSVC exemption

Court dismisses petition against government order

HC upholds exclusion of vigilance commission

The Madras HC has dismissed a petition filed by a lawyer, which sought quashing of the GO of TN Govt exempting DVAC and TSVC from the Right to Information act. First of all, this is not the case that Catalyst trust, CAG, Anti Corruption movement and other organisations have together filed. This case by the groups has been clubbed with another case filed by Mr.Sethu since both are challenging the same GO. So it is surprising why this case filed by the lawyer alone has not been clubbed and taken separately.

From the news report, it seems the case was not well argued. The only point raised seems to have been that when CBI was not exempt, how can DVAC be exempt. That is not really a good argument. The High court has replied that CBI is a central govt organisation and comes under a different section and so cant be used here. The other argument given by the lawyer was that the exemption is against the spirit of the act. Even this was rejected stating that the government has given clear explanation as to why they were exempting these organisations.

The correct way to argue, in my opinion, would have been that section 8(1)(j) already provides sufficient protection for information which will affect the investigation, and hence this blanket exemption is not necessary. Moreover, the proviso in section 24(4) insists that in any case information related to human rights and corruption ought to be given even if the organisation is exempt. These were the two points that could have helped the case. These points do not seem to have been raised. Anyway, my knowledge about the case is restricted to only the newsreports in The Hindu and the Times of India, and so I need to wait till the High Court order comes.

Now that this case has been dismissed, I wonder what will happen to the other two cases. I hope they are also given due consideration since they argue with a different set of points.

Here is a scanned copy of the High Court Judgment.

See also:
The Govt's lie about DVAC and TSVC Exemption
DVAC and TSVC Exempted from the RTI act

Ordeal in payment of fee in P&AR Department

The Secretary,
Personnel and Administrative reforms department,
Chennai - 600009.

31/IV, Maan Sarovar Raaja Apts.,
11A, Arcot Road,
Porur, Chennai - 600116.
Ph: 9840327303.

Date: 1-Apr-09

Subject: Regarding mode of payment of RTI fees in the P&AR department.

This is with respect to the mode of payment of Right to Information fees under the Right to Information act, 2005.

On 31st Dec 2005 I had come to the P&AR department for inspection of the file related to the GO, in which DVAC and TSVC were exempted from the Right to Information act. After that inspection, on the same day, I had given a requisition asking for copies of some pages of the file. For this I received a letter from Mr.P.Rangaraju, Appellate authority/Deputy Secretary to Government, P&AR department informing me that the cost of the information I had sought, comes to Rs.104 and that I had to pay it as Demand Draft/Bankers’ Cheque/Treasury Challan/Cash.

So yesterday, 31st Mar 2009, around 12.00 noon, I went to the P&AR department to pay the fees. I intended to pay it as cash. And this is what happened.
1. There I met the Mr.P.Rangaraju because he was the person who sent me the letter. He asked me to go meet Mr.Chandrasekaran, Under secretary since he was the PIO.
2. When I met Mr.Chandrasekaran, he asked me to go the section, which was near the office of the NIC in the secretariat to pay the fees as cash.
3. So I went there and met Ms.Janaki, Section officer. She pointed out that this letter was received from P&AR (N) department and so I should go and meet Mr.Thilagar who was the Under Secretary for the N department. This was probably correct, but I don’t know why the Appellate Authority asked me to meet Mr.Chandrasekhar and why Mr.Chandrasekhar asked me to go to this section. But those can be assumed to be genuine mistakes on their part.
4. I went and met Mr.Thilagar, who said that cash cannot be accepted as payment and asked me to meet Mr.Vilvam, a section officer of N department.
5. I went and met Mr.Vilvam who said that cash cannot be accepted and I had to pay it only through a treasury challan and again took me back to Mr.Thilagar.
6. Here again Mr.Thilagar and Mr.Vilvam tried to explain to me the problems they had in accepting cash, since they did not have any facility for accepting cash at the office and that I had to pay it only through a treasury challan. When I asked in what name the DD has to be paid, Mr.Thilagar told me that DDs will not be accepted and that I had to pay only through Challan. I gave the option of paying through cheque since I pointed out that the procedure for both cheque and DD would be the same. Even that was not agreed. Finally I has to relent and agree to pay through Challan, but requested Mr.Thilagar to talk to the Secretary of the P&AR department, and try to arrange some facility for accepting cash. Mr.Thilagar then talked to Ms.Janaki over phone and asked her to keep a challan ready, and then asked me to go there and get the Challan.
7. I went to meet Ms.Janaki to get the Challan form. She told me that she did not have the challan and told me that the Challans will be available at RBI. Even Mr.Thilagar pointed out that the Challans would be available at RBI. When I told Ms.Janaki that on a different occasion when I asked for a Challan at RBI, they asked me to get it from the Secretariat, Ms.Janaki asked me to get a Challan from Pay and Accounts Office on the second floor.
8. And so I went to Pay and Accounts office on the second floor where they said that they normally do not have challan copies and that I had to get it only from the department.
9. So I went back to Ms.Janaki and told her that Pay and Accounts office did not give me a Challan, and by this time it was 1.40 PM. The Reserve Bank refuses payments after 2 PM.
10. So when Ms.Janaki and I went back to the P&AR department on the first floor, Mr.Thilagar and Mr.Chandrasekhar were also there. I told them the whole thing and about how I was made to go around like this for a Challan copy. Then I told them that I don’t need a challan now, since by the time I reach RBI it will be more than 2 PM and so will not be able to pay the amount today. So I asked Mr.Thilagar whether he will take DDs. He still staunchly refused to take DDs and only after some convincing by Mr.Chandraekhar he finally agreed.

And so at 2.00 PM I left the secretariat, after 2 hours of running around here and there in the hot sun, without paying the amount I had come to pay.

My questions are as follows.

1. Why is there no procedure for cash payment at the department when the rules for payment of fees clearly gives the option?
2. If there is no facility for payment of cash, then why did the letter say that payment can be made through cash?
3. Why did the letter not tell me the name of the drawee in case of demand drafts?
4. Why did Mr.Thilagar and Mr.Vilvam refuse to take even Demand Draft initially and agreed only when there was no other option?
5. Why is there no proper mechanism to even get a challan form for which I was made to run around so much and was finally not given?
6. Why is that not a single officer I met in the P&AR department all through the 2 hour ordeal knew where I could get a challan from?

The problems with non-cash mode of payments are many.

1. For Demand drafts, it is not always easy to find out the name of the drawee. Also even for paying 20 rupees as fee, we are forced to pay 50 rupees as exchange.
2. For Demand Drafts, I need to find out the name of the drawee, which is not easy to find in many Public Authorities
3. Treasury challans are also difficult, because the challan is not easy to get. And you need to go to RBI to do the payment.

Above all these, cash payment is the right of every citizen under the Right to Information act. It is hugely disappointing that the P&AR department which is the nodal agency for implementing RTI in the state, does not fulfill this basic requirement of the act even after three years of Right to Information act, 2005. As secretary of the P&AR department I request you to take immediate steps to ensure that these basic facilities are made available to the common man.

Thanking you.