The Govt's lie about DVAC and TSVC Exemption

Today morning I went to the P&AR department for section 4 inspection after sending them an intimation asking them to "keep ready for inspection all relevant facts which formed the basis in the formulating of the decision to exempt DVAC and TSVC from the Right to Information act, vide a Government Order (G.O. Ms. No 158, Dated: 26.8.2008)". I sought this exemption under section 4(c) of the Right to Information act which says "Every Public Authority shall, publish all relevant facts while formulating important policies or announcing the decisions which affect public;". When I went there today, I was told that the files have been sent to the Government Pleader at the High Court since the PIL against the exemption was listed for hearing today. This PIL was filed by one Mr.Sethu. I have not heard about him or met him. When I called him up to find out whether the case had really been listed for hearing, he did not know that it was listed for hearing. He then checked and confirmed that it was indeed listed, but said that the case might not be heard today since it was listed as one of the last cases for the day.

At the time of exempting DVAC and TSVC from the Right to Information act, the government in response to the criticism in the media about the exemption, sent out a press release saying that information regarding closed cases can still be obtained. The press release, which was in tamil, can be seen here. I was still doubtful since a press release does not have any legal sanction. So I filed an RTI application with the Directorate of Vigilance and Anti Corruption, asking for number of cases in which investigation was complete and the number of people convicted in these cases. The information I sought was clearly about cases where investigation was complete. But I received no reply for 30 days. I again filed a first appeal. Again there was no reply for about 15 days. So I called them up last week to know the status. They said that a reply will come and if not, I can come to thier office the following week. So I went to their office today. There I was not even allowed to meet the PIO or any officer. I explained the whole thing to the person at the gate, and gave him a copy of the press release which said that information regarding closed cases can be disclosed. He argued for some time, and then said that he will take this to the officer concerned. He asked me to sit at the gate itself. So I sat there. And after ten minutes he came back saying that the officer told that they received no orders for disclosing information and hence they cannot give information. When I asked him who it was who gave this reply, he told me that it was the admin inspector. When I asked for the name, he refused to give me the name and asked me to send a letter so that I can get a reply on the record. I reminded him that I had come there precisely because my two earlier letters were not replied to. He just was not reasonable and so I walked off. After getting back to office, I called up DVAC and found the admin inspector's name. He was one Mr.Sudhakar. The person at the gate also told me that the admin inspector asked me to go to court or to any other body if I wanted to question his

This only confirmed what I had doubted. They did not give any order saying that information for closed cases alone can be given (whose legality, I doubt anyway) but just gave a press release saying the information regarding closed cases will be made available. The claim, by the P&AR department in the press release, was simply a lie.

Response to MLA Constituency Development Funds Issue

Immediately after the MLA Constituency Development issue came out in the papers, there was a clarification from the Chennai Corporation which can be seen here. Here they have said that they have "updated" the report and that works have been fully recommended in the Chepauk constituency (the CM's constituency) and that many of these works are near completion. What is funny is that, why did they not give me the updated data before? But even apart from that, why did they give the updated report only for the CM's constituency. What about the rest of the MLAs. Makes us think if this was due to some pressure, or did they themselves feel, that the CM might not be happy if he sees that Chennai Corporation has given out the data. I dont know.

Another interesting response that came in today's Hindu is from the AIADMK MLA Ms.Badar Sayeed. She has said many of her recommendations are wantonly rejected because she is from the opposition. This article can be seen here.

Assets Disclosure by MLAs, MLCs and Government Servants

Since October, I have been trying to study the available provisions for transparency in Government and here is what I found. This is just a very basic research I did on how to track the assets of MLAs, Councillors and Government Servants, try to look at available options of improving the quality of people we have elected etc. Before you start reading this piece, I must admit that I did not have any idea on how to look at corruption in Government or Criminialisation of politics etc. I also knew nothing about the rules in place to curb these. This is a learning for me, and my intention in writing this is not only to blog my work but also that this could be a very rough guide to the status of the checks and balances available in the system. Of course, I cannot claim this to be exhaustive or in any way authoritative, but it can be a good starting point.

MLAs

The first thing I tried to see was assets disclosure by all these people. Even before trying to find out about this, I knew that MLAs have to disclose their assets at the time of filing their nominations with the State Election Commission. These affidavits were available on the state election commission website. So I downloaded the affidavits of about 35 ministers that we have and went through them. One way to use these assets declaration data that I could think of right away was to compare it with previous elections' affidavits. That might give us an idea of the change in financial position if any, and whether the change is justifiable given the person's source of income. But when I tried to do that, I found that this was the only set available on the website. The rules that candidates have to file their assets returns and criminal backgrounds came into force only in 2003. So I have to wait till the next elections to know their assets details. But this led me to think whether there are any rules for MLAs to file their returns at any other place. Going through the Tamil Nadu Assembly website, I found that there indeed was such a rule. It can be seen at http://www.assembly.tn.gov.in/Documents/practice/pp4.htm#Disclosure. So I filed an RTI asking the status of compliance of MLAs with this rule. I asked details of just the present assembly (13th) and the previous assembly (12th). I thought an annual comparison of assets would be a good way to monitor the assets of MLAs because any sudden spike in assets could come under scrutiny. Of course, there is always the scope of their not declaring assets at all, handling which would be far more difficult. To my complete surprise I received a reply saying that not even a single MLA has complied with this requirement in this assembly and the previous one. But this letter stated the resolution to this effect was passed on 27th Aug 1969. The proceedings of that assembly session can be seen here. Page 12 of the pdf file shows that the then CM Mr.M.Karunanidhi (who is also the CM now) moved the motion for assets disclosure. This was passed with retrospective effect from the year 1966-1967. It has also been mentioned that some MLAs and ministers did indeed file their returns after this. But today the practice is probably long forgotten. So I filed an RTI to find out exactly when this procedure died out. I have asked for details of disclosure of all the 42 years starting from 1967 till this year. That should give us an idea of what happened. After this I am planning to try to push the MLAs to follow the procedure, by pressure through the media or by forcing them using the courts.

When looking at affidavits, I also saw that quite a few ministers had criminal cases against them. Considering that they are all ministers, no guesses needed on how the investigations would proceed. There are also corruption complaints against some ministers pending with the DVAC (Directorate of Vigilance and Anti-Corruption). With regard to investigations with Police Stations attempts to push can be made using Right to Information, but that will require a good understanding of the Police and Court procedures. I am trying to find a person who can help me with this. As for trying to find the progress of cases with the DVAC, RTI cannot help because DVAC has been recently exempted from the RTI act.

MLCs
Then I looked at Assets disclosure of Corporation Councillors. According to the Madras City Municipal Corporation (Disclosure of Assets) Rules, 1973 Members of the Legislative Council (MLCs) of the Chennai Corporation should disclose their assets details on March 31st of every year. Here again I have filed an RTI with the Chennai Corporation asking for compliance details. This was done on 23rd October 2008 and am awaiting a reply.

Government Servants
When trying to look at rules for Government Servants (THE TAMIL NADU GOVERNMENT SERVANTS' CONDUCT RULES, 1973), I saw that there were the seemingly strict rules for government servants where there have to get approval for any purchases made, and that they should not take gifts etc. Rules No. 7(3) clearly states that "Every Government servant shall submit a return of his assets and liabilities as on 31st December 1980 in Forms I to V in Schedule I appended to these rules on or before 31st March 1981 and thereafter at an interval of five years on or before the 31st day of March of the year immediately following the year to which the return relates". For this again, I filed an RTI application seeking the status and am awaiting a reply.

MLA Constituency Development Funds

The next time you see some civic problem in your area, ask your MLA to use his/her MLA Constituency Development Scheme (MLACDS) Funds for addressing the problem. Information received under Right to Information act from the Chennai Corporation, which is the implementation agency of the scheme for Chennai MLAs, revealed that about 43% of the funds allocated to 15 Chennai MLAs are lying unutilized. This information pertains to the last 2.5 years starting April 2006. This is the case when there is no end to the problems that the city is facing like bad roads, overflowing drainage and lack of waste management systems. In the last 2.5 years 45 crores have been allocated under this scheme to the 15 MLAs in Chennai. Out of this only about 26 crores have been utilized. The remaining 19 crores are unutilized. A party wise analysis reveals a different picture. Out of the 15 MLAs, 6 are from DMK and 7 are from AIADMK. DMK MLAs have utilized 75% of the funds, while the AIADMK MLAs have utilized only 36% of the funds allocated. The total unutilized funds lying in the account, accumulated since the inception of the scheme is 51 crores.

Individual utilization of MLAs varies from 13% to 100%. Mr.Arcot N.Veerasamy, MLA of Anna Nagar constituency and Mr.K.Anbazhagan, MLA of Harbour Constituency have utilized 100% of their funds, while the Chief Minister Mr.M.Karunanidhi representing Chepauk has utilized only 50% of the funds allocated so far. The complete table can be seen here.

Under this scheme every MLA is allocated a specific amount every year which could be used to implement works in the MLA’s constituency. This amount has been increasing regularly since the time of its inception. In 2006-2007 and 2007-2008 this amount was 1.2 crores per MLA. The amount has gone up to 1.5 crores this financial year. This is a convenient way for an MLA to get work done in his constituency since he only needs to recommend the work to the implementing agency and it gets done. But under utilization of this is a wonderful opportunity lost.

Informed citizenry leads to a better democracy and better functioning of the government. Every MLA needs to be questioned on his work done for his constituency. The utilization of these funds is one of the parameters based on which an MLA could possibly be evaluated. Hence such an exercise should be taken up by people in all over the state. Moreover, people need to find out not just how much of the funds were utilized, but also what works were implemented and how they were implemented, which is what I intend to do next.

This information in the Media.

CM fails to spend half of MLA's fund

"43 per cent of 15 MLAs' funds not used"

Unused Constituency Development Funds in Chennai (Tamil)

CM's Public Relief Fund

Thanks to RTI, the status of the Tamil Nadu CM's Public Relief Fund is now out in the open. I asked for the funds flow statement of the last 6 years of the CM's Public Relief Fund. And this statement is shown below.

All amounts given in crores of rupees.

Financial Year	Opening Balance	Funds Received during the year	Funds spent	Any other outgo	Closing balance
2002-2003	1.75	3.94	4.16	0.00	1.52
2003-2004	1.52	8.01	3.84	0.00	5.69
2004-2005	5.69	157.27	88.75	4.00	70.20
2005-2006	70.20	84.45	21.97	126.00	6.69
2006-2007	6.69	58.53	12.25	47.55	5.41
2007-2008	5.41	19.08	3.51	17.00	3.98

This shows that about 157 crores were received during the Tsunami year (2004-2005). But this is greater than the sum of all the amounts spent in the following years for relief work which is 126.5 Cr (88.75+21.97+12.25+3.51). This shows that the funds received during the Tsunami period not yet been fully utlised. The difference is about 30 crores. But the point to note here is that all these 126.5 Cr has not been utilised for Tsunami relief. A lot of it would have gone for Tsunami, but there are amounts in it which have been given for other kind of relief like general medical and education help. This shatters that myth that the money donated to the government will be properly utilised.

In addition to this, I also obtained a list of Fixed Deposits that the CMPRF money has been invested in. This showed that 166 crores have been invested as Fixed Deposits. Thus this sets a lower bound on the amount lying unused in the CM's fund.

I am not claiming that funds have been misused but what I am trying to point out is the following two things.

1. A lot of money is lying unused in the fund. To understand why this is a lot of money. Consider these two facts. The amount is about 7-8 times the average annual spending of the last 6 years. Moreover, if you leave out the Tsunami year and the year following as "exceptionally high outgo" years, the average outgo for a normal financial year is just 6 crores. That would mean the unused amount is more than 25 times the normal average annual outgo, which is unacceptable.

Why is so much money lying unused? When I went for inspection of files of the fund, I saw that donations were made to construction of hospitals too. With that being the case, and assuming that there are not enough people applying for funds (which I really doubt), why cant the relief funds be used to good purposes like improving the Government Hospitals, which are in a terribly bad shape?

2. If funds received 4 years back that too obviously for Tsunami, has not yet been used, then in raises the question whether contributors would be happy with their money (which was donated for Tsunami) being used for other kinds of work (though that is also some kind of relief work).

Indian Express first took this up which was followed by Makkal TV covering it. The Indian Express article can be seen here.

The actual statements received from them and copies of media coverage can be seen here.

DVAC and TSVC Exempted from the RTI act

Directorate of Vigilance and Anti Corruption (DVAC) and Tamil Nadu State Vigilance Commission (TSVC), have been brought out of the purview of the Right to Information act. The link for the news item can be seen at the end of this mail. The govt has passed a GO in this regard too (attached).

This GO clearly states that this has been done because "in vigilance cases, giving information at the initial stages, investigation stages and even prosecution stages would lead to unnecessary embarrassment and will definitely hamper due process on investigation". This is a pretty strange reason to give exemption because section 8(h) anyway provides exemption to information whose disclosure would hamper investigation. Also, "Unnecessary embarrassment" cannot be a reason for exemption since with RTI embarrassment is bound to happen in almost every Public Authority.

But the fact that both these organisations have been given blanket exemptions means, we cannot get any information from DVAC and TSVC. This makes the government's motives suspect. It seems to be only a ploy to protect people who are being investigated by DVAC, as this will prevent us, the public, from asking details on follow-up or action taken on cases they are investigating, finding out causes of pressure from vested interests etc.

Moreover, allowing such exemptions to be added, unquestioned, would only make the government bolder to add further exemptions.

The G.O can be viewed at http://www.tn.gov.in/gorders/par/par_e_158_2008.pdf

I am talking to other organisations like Catalyst Trust, CAG and 5th Pillar to see what can be done about this. Though some orgns want to fight this legally, I feel we dont have a strong enough case and losing the case would be disastrous since, then it would seem that the high court has upheld the stand of the govt. In my opinion all the orgns should get together and talk to the P&AR secretary and try to convince him. If that does not work we need to get down to the streets. Here again there is a long struggle and more will come on this.

Here are some media links to the exemption.

Vigilance bodies out of RTI Act purview

Taking DVAC out of RTI purview evokes protests

Govt defends exclusion of DVAC from RTI purview

Work with the Commission

I have set two interns to work on analysis of the files of the State Information Commission starting Jan 2007. They are from Loyola College and are doing this work on Wednesdays and Thursdays. There have been many problems with the State Information Commission and the most important of them is that they dont follow up on their orders. In the worst manifestation of this, the penalties they impose too are not followed up on.

I went through all the judgments of the Commission and made a list of penalties imposed by the commission and found that about 24 penalties were imposed by the commission. I passed this info on to Shyam of the Hindu who talked to the Commissioner about this. An article on this came out in the Hindu (http://www.thehindu.com/2008/08/22/stories/2008082253890500.htm). The Commissioner claims that more than 200 penalties have been imposed so far and says that the reason why I could see only 24 penalties was that, many of the penalties imposed have been after replies from Show Cause Notices came in, and they were looked at. I still have not seen any documentary proof for those 200 penalties. In addition to this, a staff of the Commission told me that not a single reply to the Show Cause Notices has been looked at so far.

Recently the State Information Commission gave a bad order against an RTI applicant, Mr.Gunasekaran. A copy of the decision can be seen here, but the gist was that the applicant had applied for a post of a driver in the State Transport Corporation. But he did not get the job. He told me that there is always corruption in such appointments and the money would be in the filed an RTI application under RTI application asking for Merit List and the marks list of candidates who appeared for an interview for the post of a driver for a State Transport corporation. Since he could not get those, he filed an RTI again asking for panel members who decide the merit list. This time the transport corporation gave the names of the panel members (which in the commission's opinion need not have been disclosed). The applicant then filed an RTI with one of the panel members with a view to get the mark list for which he was told that RTIs cannot be filed with panel members. When the first RTI (asking for merit list and marks for merit list) came up for hearing, the commission ruled that normally they order the mark list have to be disclosed, but in this case since the applicant has asked for panel members' names and has got them, the commission decided that disclosing the marks list could lead to personal harm of the panel members and hence ordered that information need not be disclosed. I was also along with him, at the hearing. My repeated appeals, saying that just because the names of the panel member were known, it does not mean we would do them any harm. The commissioner Mr.T.R.Ramaswamy said that we should come with our hands clean. He also asked us why we were so impatient that we filed a second RTI application when the first was still pending and why could we no wait. Such questions were unnecessary as it does not matter how many RTIs we file. But he refused to listen to any of our arguments and ordered that information need not be disclosed.

I have decided that this decision should be challenged in the High court. Gunasekaran is also ok with it. So through Arvind Kejriwal I got a lawyer contact in Chennai. She is Ms.Gita working in Human Rights Law Network (HRLN). Over phone she agreed to help us out. So Gunasekaran and I will meet Ms.Gita the coming monday (6th October). I feel this will go on for some time. So, as they say, keep watching this space :-)