The backbone of the rule in all States and at the Centre is the elitist IAS. I wanted to check the consistency with which their performance was being appraised and evaluated.   Information received using RTI, shows this a fiction! On 29^th April, 2006 I asked the Maharashtra Government about the number of IAS officers in the State, and for how many of them Annual confidential reports had been received.

The Public Information Officer,- perhaps treating this as a State Secret,- refused to give the answer with the claim that ‘this was not information’. Being amused at this response I filed an appeal. The first Appellate Authority from GAD, claimed that the PIO was right. For good measure she also claimed that this was personal information, and hence could not be given! When I had not even sought the name of any individual, how it became personal information was a mystery. By this time I was curious why innocuous information like this was being treated as a great State Secret. I filed my second appeal and the Information Commissioner ruled that there was no ground to refuse this information. Over five weeks after the Information Commissioner’s order, the cat is out of the bag: There is no consistency or regularity or seriousness in the matter of annual appraisals of IAS officers. The ACR is supposed to be submitted to the Government by July of each succeeding year; ie. the ACRs of all officers for 2005-2006 should have been with the Government by August, 2006. They are not giving the figures for 2005-2006 so far, but the information provided shows 42% of the  ACRs for 2004-2005 are overdue for over 16 months. For two, three, and even 4 years over 20% of the ACRs are not received.

The answer given by the Government after their defences to maintain this secret were breached by RTI:

 * (2005-2006 info received in March 2007.)

The Annual Confidential reports are supposed to be ready by July of the following year. This shows that for over four years the ACRs are not made in some cases. The best and the brightest people are put through a system where there is no systematic performance appraisal mechanism. There is no system of telling them their weaknesses and strengths, what they did right and what was wrong.  How then is the performance of IAS officers judged? By arbitrariness and corruption! How are promotions decided?  How are important executive positions, and onerous responsibilities given to some? Depending on the Minister’s whim and desire. There is no evaluation, no system in place. Such a system can never  bring about good performance and governance.          

shailesh gandhi

I have all the papers and would be glad to send copies.

B2 Gokul Apartment, Near Asha Parekh Hospital,Poddar Road, Santacruz (W),Mumbai-400054 ,

    The RTI Act has been taken up very enthusiastically by Citizens across the Country to monitor their Government. However, the main implementation of the Act is in the hands of the Government officials whose job it is to give information. Given a culture of not observing any laws or rules, there has been a fair resistance on this count. The Information Commissions have been charged with the job of safeguarding and implementing the Act. Unfortunately, they have not performed too well so far.

     I have been persuading Information Commissions to display their performance Suo Moto under Section 4. At the very least they should display how many second appeals and complaints they receive every month and the disposal of these. The only Commission who has now done this is the Central Information Commission. Using Right To Information some activists and I have obtained some data about this. It is showing an alarming picture. It is unfortunate that most Commissioners have not understood their function properly. A lot of them are retired bureaucrats. However, whether they are retired judges or educationists earlier, they have all been guilty of not ensuring that a Citizen gets an order soon enough. Most Commissions do not have any reasonable record maintainence, and papers getting lost and misplaced is a common feature. They do not have data and are making a negligible effort to monitor the use of the Act in various Government departments. Laughably, most are unaware of the need to monitor the receipts and responses of various Public Authorities to the Citizens. Instead of a simple approach that they must ensure disposals within 30 to 60 days of all second appeals and complaints, they are moving at their own leisurely pace, and each Commissioner disposes from around 70 per month in Maharashtra and the Centre to a niggardly 2 to 3 per Commissioner in Kerala. The only Commission which claims to dispose off over 300 per month is Tamilnadu. With three Commissioners, they claim to dispose 900 to 1000 in a month. Each Commissioner with all the staff and facilities  cost the Public around  Rs. 1 to 1.5 crores annually. If they dispose less than 1000 cases each the cost per decision is about 10 to 15000. If they dispose about 4000 each year, then it would be about 3000 rupees per decision. Besides, if they do not dispose the pendency, this would be a major threat to RTI. Citizens are then likely to resort to direct action to defend their freedom.

         Maharashtra with a pendency of over 5000 has just sworn in two more Commissioners and sanctioned four more. It has also taken the progressive step of deciding to distribute them in the various districts. However, if the Commisioners do not 

speed up the disposal even these additional numbers will mean only sinecures for those favoured by the Political combinations. Punjab has five, Kerala and Tamilnadu have three each, while Goa and Assam both have two each. Maharashtra had only one, and will shortly add another six.

         Based on the data of the Commissioner’s disposal I would give the Gold medal for best performance in terms of disposals to the Tamil Nadu Commission, and the Pumpkin

Award to Kerala.

     In April, 2005 Mumbai was horrified by the rape of a minor at Marine Drive.rive.

In the last week of April, TOI had a headline report on the first page about a demonstration by Citizens at Marine drive, demanding action against the culprit constable More. On the same day, there was a small report on one of the inner pages about a Police Inspector Prakash Aware who had raped a minor in September, 2004. According to the report, the medical report and all other evidence was conclusive as to what had occurred.

Prakash Aware was suspended from service, and in December, 2004 the case came up in Court. The victim turned hostile, and Prakash Aware was acquitted. By March, 2005, his suspension was revoked, and he was back in service!

   I sent a RTI requisition to the Public Information Officer of the Police Commissioner on 2^nd May, asking among other details a copy of the letter revoking his suspension. They refused to give the information and I filed an appeal. In August, 2005, however the Police gave me in writing that they had dismissed Police Inspector Prakash Aware from service in July, 2005! This was an instance of how RTI could be used by any single Citizen to enforce the law and get some retribution

     Whereas primary data of RTI applications in the Country is not available in the Country, secondary data, -based on Second appeals and Complaints received by the Information Commission,- is a fair indicator of the number of RTI applications received, and more importantly the level of RTI awareness amongst Citizens. By these criterion, Maharashtra appears to lead the Country, with its high level of usage and awareness. According to the data received by me so far, most State Commissions have received less than 2000 second appeals and complaints until December, 2006.  The Central Information Commission, which is the Second appellate authority for all the Central Government bodies in the Country has received a total of 4939 second appeals and complaints.

      Maharashtra Information Commission has received 6641 second appeals and complaints until December. This is a clear indicator that Citizens are using RTI extensively and have also become reasonably aware and skilled, so as to be able to file second appeals and complaints. The other interesting feature of this is that the second appeals and complaints under RTI have come from all the revenue divisions in a fairly well distributed manner, as the following table will show:

    This clearly shows that RTI movement has gone deep across the State of Maharashtra,

and is not limited to certain regions. The Maharashtra Government was found clearly lagging in the implementation of the RTI Act. On RTI, its actions appear to be responsive only to Shri Anna Hazare’s threats. It provided only one Information Commission to meet this huge demand, whereas Assam had two, and Kerala four! When Anna threatened an agitation, it immediately swore in two Commissioners and has now selected four more. The opaque method of its selection of Information Commissioners continues, and it appears the Governor has withheld his assent for one of the Commissioners! However, we must give credit to the Government, for being the first to distribute the Commissioners across the Revenue divisions, instead of keeping them all in the Capital..

     What is the performance of the sole Chief Information Commissioner? After a slow start at disposals, he has gone onto disposing about 110 in a month in the last three months. He disposed 324 in the first nine months, and has disposed 326 from October to December, 2006. He is taking steps to increase the disposals, and together with the increase in Commissioners, we might see a position where RTI decisions will be delivered by the Information Commission within 60 days as he promised earlier.

Maharashtra Commission’s record of Second appeals and Complaints:

Penalty has been levied 15 times, totaling Rs. 1.06,000.

Proof is available for 4 penalties having been deposited, so far.

The receipt which shows 940 in December is likely to rise to about 1200-1400 in the next four to six months.

       Hopefully, a combination of Anna’s threats combined with an awakened Citizenry, will raise RTI to new heights of Citizen empowerment.

                    Citizens are harassed by the tremendous speed and energy with which roads are dug up everywhere, and the extreme tardiness with which they are reinstated. All of us complain about this and curse our luck for the traffic jams, unsafe roads and virtual footpaths we have to traverse. I think Right To Information (RTI)

can provide an effective solution to empower us to stop this lawless and systematic harassment.

          There is a “Policy Guideline for Granting of permission to Utilitity and Municipal Agencies for Excavation and Reinstatement thereafter”, no. MDB/4259 Dated 14 March, 2005. Going through the document revealed some important and interesting provisions:

1. Each ward has to have at least one Engineer exclusively for controlling road excavation.

4. An extremely important condition is clause 49 of part B, which states that except where a power cable has to be laid, excavation cannot be made for a length exceeding 100 meters at one time. This condition is violated frequently and hence causes major problems to Citizens.

2. Time period for completion of work is two days for length upto 100 meters.

3. Time for reinstatement shall be not more than 7 days after completing of trench excavation.

Note: Thus generally, trenches should not be more than 100 meters long, and the total time from start of digging to reinstatement must not be more than 9 days.

5. Barricading of an area is to done before starting any excavation. The barricades have to be of specified design with Zebra lines in black and white paint and with reflectors.

6. A board has to be displayed giving information of

a)      Name of Agency.

b)      Date of starting.

c)      Date of completion

d)      Name of site engineer with his mobile number.

7. A daily progress report has to be submitted by the utility, and the Ward Engineer responsible for excavation has to certify compliance.

8. Stiff penalties have been specified for violations. I am giving some of these:

i) Delay in Completion –              Upto 2 days- Rs. 5000 per day.

                                                        2 to 5 days- Rs. 10000 per day.

                            For delay more   than 5 days- Rs.15000 per day.

ii) Non-fixing of barricade-              Rs. 1000 per metre.

iii) Not providing reflectory signage- Rs. 500 per metre.

iv) Not displaying board as specified –Rs. 500 per metre.          

Armed with this information, Citizens can file a RTI application along the following lines, to check the blatant violation of the policy, which leads to our inconvenience.

First identify an excavation which has been open for over 9 days. Identify its location and file the  RTI application  on the next page.

shailesh gandhi

       I have filed PIL no.156 in November, 2006 primarily to point out to the Court that the State instead of taking cognizance of crimes of forgery, coercion, fake tenancies, threats, cheating and collusive conspiracy by various builders, Government officials, politicians and other criminals was not allowing an investigation of these  crimes. In an outstanding order the High Court has clearly given directions to the Government to expeditiously ensure the investigations of all such cases. With this direction, the Court has effectively asked the Government to follow the law to detect and punish crimes. The Government of Maharashtra had taken the untenable position that no investigation could be done of crimes reported in the Slum Rehabilitation Authority’s  (SRA) Schemes. It had infact issued a letter to the CEO of SRA, saying no information should be provided to the ACB, unless specific Court orders were given. The Government was openly siding with criminals and safeguarding their illegal acts, apart from telling departments not to give information to the Police department,- of which ACB is a part! The Court has given clear instructions, as the attached order shows.

       Citizens will have to take steps to ensure its implementation. Given below is the important operative part of the order:

From a perusal of the petition and the annexures thereto so also above letters, prima facie, we are of the view that direction need to be issued for expeditious investigation of these cases. The aforesaid direction is besides the cases which have been reported to the Police/ACB and in respect of cases where FIRs have been lodged, the concerned Police Station/Department/ ACB would process those cases in accordance with the procedure prescribed for investigation of such cases and if the report discloses cognizable offence, register FIRs in the matter and investigate the cases as expeditiously as possible. We expect the State would provide all the necessary assistance in the form of infrastructure/ logistic and sufficient personnel to assist the concerned Police Station/ Department/ACB to facilitate speedy investigation into these cases, giving them top priority, which is the need of the day, considering the large scale corruption reported in the implementation of the SRA scheme.

 There has been a great battle on the issue of whether the PM's and CM's relief fund are covered under RTI. The Information on these has been hidden on the pretext that they are trusts and not covered by the RTI Acts. Maybe some of them have been used as personal funds! The Chief Central Information Commissioner has after deliberating for six weeks after the hearing, given an order rightly accepting that information of the PM's relief fund has to provided under RTI, since it is part of PM's organisation, and not a separate entity. I quote the relevant portion:

It is neither a trust nor has it acquired any legal entity. However, information concerning this fund is under the control of the Prime Minister’s office. The Joint Secretary to the Prime Minister is Secretary of the fund. He is assisted by an officer of the rank of Director. The Joint Secretary and the Director discharge their duties concerning the Fund in addition to their other duties. At the lower level of hierarchy, the Fund is maintained by a Section, which is a part of PMO. The fund is operated by the office of the Prime Minister. Initially, there was only one Savings Bank account with the Central Bank of India, Janpath, New Delhi which was opened in 1948 but collection accounts have subsequently been opened with various banks to facilitate contributions towards the Fund.

In view of this, it stands established that PMNRF is not an organisation or a legal entity and as such it cannot be categorised as an independent public authority. We appreciate that the fund is a discretionary fund with the Prime Minister. But since the information is held by the PMO as the public authority, they are obliged to make it accessible to a citizen under the RTI Act unless such disclosure is exempted under Section 8. This issue is disposed of accordingly.

After delivering a technically proper order, the Information Commission has committed a Faux pas by stating that there may be a need to ask third parties for their objections as per Section 11 of the Act. Section 4 (b) of the Act states that  all public authorities have to Suo Moto publish  particulars of beneficiaries and recipients. Since the PMNRF is part of the PMO, this information will have to made available Suo Moto.

The principle that PM’s and CM’s relief funds are covered under RTI has been established.

Attaching the order.

- Citizens using RTI.

     There is some talk of bringing about a Lokpal for the Central Government.

I wondered what the Maharashtra State equivalent,- the Hon. Lokayukta,- does. The Lokayukta has been around since the 70’s and surely must be a very powerful body, eagle-eyed spotting the problems of injustice and graft in the Government. I wondered, who monitors the Ombudsman, and decided to use Right to Information to find out. Under their Section 4 disclosure, they have declared that they have a salary bill of Rs.1.28 crores and a staff of 87 people.  When I asked some journalists when they last heard or reported anything done by the Lokayukta, -except during the time when the authority had the job of being second appellate authority for MRTI,- nobody could remember. Perhaps, it is self-effacing body and works without Public glare.

I also had the unique experience of having an appellate case in Maharashtra RTI being heard in January, 2006, and then again in June, 2006. The order was finally signed by the Lokayukta on 29/1/2007, the covering letter made on 20/2/2007 and the postmark on the envelope was of 8/3/2007.

      I have been wondering about the onerous job of monitoring the Government by hearing allegations and grievances against Ministers and Government servants, and the resultant check on the Government as envisaged under the Loakayukta Act. As per Section 12 (6) & (7) of the Act, an annual report has to be submitted to the Governor and the State Legislature every year. No report has been submitted for 2004, 2005 0r 2006 so far!  The fact that even an annual report is not submitted, nor missed, nor demanded by our State Legislators is not very surprising, since the key figures of performance are as follows:

 Year   Number of complaints    How many investigations         Action         Action                          

              Received                              started                               initiated        taken

2005         7651                                     2                                         2                    0

2006         6250                                     0                                         2                    0

When this is the way the Ombudsman works, why do we have this establishment?

A question Citizens must ponder about and perhaps the legislators should also ask.

shailesh gandhi

32903776; 9820027305

          The Surupsingh saga has finally ended. Chronology of events:

1. May 10^th, 2006 Surupsingh was sentenced to one month in prison by the Supreme Court.

2.May 12^th Surupsingh was imprisoned.

3. May 14^th Surupsingh complained of chest pain and was shifted to JJ Hospital’s airconditioned ICU.

4. Media and Citizens suspected that as usual one more powerful criminal was escaping jail.

5. May, 27, I filed a RTI application asking for a copy of Surupsingh Naik’s medical records, on the grounds that there was a Public interest in verifying whether powerful criminals spent their prison  sentences in airconditioned Hospitals because there was a medical need, or because of their power.

6. 5^th June Surupsingh shifted back to prison, where he stayed until 11^th June, 2006. Was the decision to shift him to prison the outcome of improved health or the RTI?

7. 20 June, RTI application rejected by PIO, without any grounds.

8. 21 June, first appeal filed with Dean of JJ Hospital.

9. 25 July, the Dean rejected my RTI requisition quoting 4 of the 10 exemption clauses of the RTI Act. I wonder why he did not quote all 10.

10. 30 July-I filed a second appeal with the Maharashtra Information Commission.

11. 29 September –the sole Chief Commissioner held the hearing but did not pass the order.

12. 5 March, 2007- Full bench of Maharashtra Information Commission held another hearing and unanimously ordered in a landmark order that the information should be given in seven days.

13. 13 March, Surupsingh filed a writ petition in the Bombay High Court against the Information Commission’s order.

14. 23 March-After  three hearings, the Court pronounced its order clearly accepting the Information Commission’s and my contention that there was a larger Public interest in disclosing a convict’s medical records and hence the information must be given. It also clearly reiterated what the Act states that RTI supercedes all earlier statutes and rules. However, it held that the Commission should have given an opportunity to Surupsingh Naik for a hearing and hence asked the Commission to do so.

15. 13 April -The Commission bench gave an opportunity to Surupsingh, who came with his lawyer on A.B.Girase and argued why the Information should not  be given. Basically it was a repeat of the contentions before the Court, and met with the same fate. The Commission again ruled that information should be given within 3 days of the order issued on 16 April.

16. 18 April- JJ Hospital gave the medical records.  

Opinions from some leading cardiologists are being sought on the reports.

Hopefully, this will give a powerful boost to Citizen empowerment and their ability to make the authorities and the Government govern as per the Rule of Law and in Public interest. Citizens across the country will now ask for medical records whenever powerful criminals avoid the jails and seek the comfort of airconditioned hospitals. This also denies scarce medical facilities to the needy Citizens.

shailesh gandhi

       There are a very large number of criminal complaints in the SRA matters. The SRA has provided houses to less than 1 lakh slum dwellers, but been extremely profitable for dishonest builders, politicians, Government servants and members of the mafia. The Government was ensuring that no investigations could take place in these criminal cases, hence I filed a PIL. Sensing a threat to its protection of criminals and an exposure to its powerful supporters, the Government appointed an IAS officer to enquire into the scam and hold it as a figleaf to its blatant subversion of the CrPc. In three orders in March, the High Court issued clear directions to the Government to provide adequate resources to the investigating agencies so that the Rule of Law was not subverted. The Advocate General who was arguing the case assured the Court, that the Government was following its orders. In the last week of March, I pointed out to the Court, that the Government was contemptuously flouting its orders. The Advocate General stated that it was in ‘my mind’. The Court again issued very clear directions. Realising that the Court’s orders were now difficult to misinterpret, the Government has asked for a recall of the Court’s orders.

        Effectively, the Government is seeking the Court’s approval for suspending the CrPc!  I am not in India, and the Solicitor General has been called in to argue before the Court on 3rd May, that the Court had not properly recorded what the Advocate General had said, and- more significantly- asking for a recall of its three orders of March 7, 21 and 28! This is indeed a bizarre case, with the Government claiming its Advocate General did not say what the Court recorded and the Solicitor General being brought in to ensure the effective suspension of CrPc! I am sure Citizens will draw the appropriate conclusions from the Government’s stance.

          I am attaching my submissions to the Court, and also the Court’s orders.

shailesh gandhi   

April 30, 2007