Stop selling that frivolous argument

When you oppose something, usually it is assumed that your opposition is backed by a reason. And depending on the situation, your reasoning can be based on either your experience or some study or data. But what of you are talking just in the air without any justification whatsoever to back your argument? Who is going to believe you in that case?

Five public five public authorities including the prime minister’o Office (PMO) have said that they have never received any ‘frivolous’ application under the right to application (RTI) act in the last five years- that is, since the time of enactment of the act. The response nails the government’s lie that the act should be amendment to discourage frivolous applications.

Other four public authorities include the supreme court, ministry of external affairs (MEA), department of personal and training (DoPT)- the nodal department for the implementation of the transparency act and the Indian embassy in Washington DC.

The information has been obtained by Noida based RTI activist Commodore (Rtd.) Lokesh K Batra and Los Angeles resident Vishal Kudchadakar over a period of six months.

It makes official, what we always knew- that the government does not have any substantial data or survey of any kind to back its ‘frivolous applications’ argument. It is based on the experiences of public information officers (PIOs) who are of the opinion that people are misusing the act by demanding trivial information, supplying which, is sheer wasted of manpower and resources.

Babus dealing with RTI queries have been found giving this excuse in almost every meeting conducted to discuss amendments in transparency act

Just for the sake of argument, let us assume that frivolous and vexatious applications are increasing the workload of government departments.

In this case, who will decide what is frivolous? Considering that there are thousands of public authorities (departments covered under the RTI act) across the country, will the definitions of vexatious vary from one office to another?

Webster’s dictionary defines ‘frivolous’ as something characterized by lack of seriousness or sense or self-indulgently carefree.

Something which is very serious in nature for me can lack of seriousness for you. How can someone else categorise matters of seriousness on my behalf?

Suppose, I have faired well in an examination but the results does not reflect so. I believe that something is wrong and want to see my answer sheet. This is something extremely important for me, but can be frivolous for the staff of the institution. They might say that allowing one student to scrutinize his answer sheet might set a wrong precedent.

Therefore, it is time the government stopped giving the ‘frivolous argument’ while discussing changes in the RTI act and came up with some logic.

This appeared on http://www.governancenow.com on May 16, 2011

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A letter to Aruna Roy

Dear Arunaji,

Since the day Anna Hazare sat on fast at Jantar Mantar demanding the passage of a strong Lokpal bill, you have emerged as one of the most vocal critics of the anti-graft ombudsman proposed by Team Anna. You have expressed your disagreement through various newspaper articles and TV interviews.

In this scenario, I doubt if many people know that it was you who began the process of drafting of the Lokpal bill, which has now caught the imagination of the nation.

In September last, you chaired a meeting of the national campaign for people’s right to information (NCPRI) meeting where you formed a committee to draft a comprehensive anti-corruption law. You assigned the task to Arvind Kejriwal. He consulted advocate Prashant Bhushan, Karnataka Lokayukta justice Santosh Hegde and was ready with a draft by October end.

This is how, as you would recall, began the process of formulating the Jan Lokpal bill- the people’s version of anti- graft body.

The draft of the bill was discussed in your presence during two NCPRI meetings and a meeting of the national advisory council (NAC) sub-group, all held in the first week of April. NCPRI circulated the minutes of its meetings through a press release dated April 5, 2011.

The press release tell us that barring two points – what kind of public grievances should the Lokpal address and how open should the institution be for public scrutiny, there was an agreement on all other points.

The gathering which included yourself, Nikhil Dey, Shekhar Singh and members of civil society agreed that there was an urgent need for a strong Lokpal bill to fight corruption in the country; such a legislation should be enacted as soon as possible; the purpose of the draft law was to ensure prompt investigation into allegations of corruption against all public servants and time-bound prosecution in fit cases so that the corrupt are held accountable for their actions.

Till that stage you and the NCPRI supported the draft Lokpal bill prepared by Arvind Kejriwal in consultation with Prashant Bhushan and justice Santosh Hegde.

But your opinion and that of NCPRI changed in subsequent discussions on the Lokpal bill.

In the last week of April, a document titled “Towards a basket of anti-corruption and grievance redress measures”, prepared by Shekhar Singh, was circulated among the NCPRI members as its official position on the Lokpal bill.

Surprisingly, in the NAC meeting on April 28 you presented this document and not the draft discussed in April first week (prepared by Arvind Kejriwal).

This was also the time when Congress general secretary Digvijay Singh demanded that NAC members Aruna Roy and Harsh Mander be included in the joint drafting committee.

Since then, you have been promulgating these grievance redress measures as your take on the Lokpal bill. You have conveyed the same through media.

The draft which you have now debunked was formulated after elaborate consultations among the civil society members. But you chose to present before the NAC, the draft prepared by Shekhar Singh on which there were no consultations at all. Why?

You were of the view, as per the press release issued on April 5, that there was an urgent need for a strong Lokpal bill to fight corruption in the country.
Then how come this very Jan Lokpal became a “Frankenstein” and a threat to democracy as referred by you in the articles which appeared in the media?

According to the consultations in April, the anti- graft body would investigate into allegations of corruption against all public servants and would conduct prosecution in a time-bound manner. “The Lok Pal and Lok Ayuktas will directly receive and investigate complaints of corruption and undertake prosecution against public servants in fit cases,” said the release.

Now you, Nikhil Dey and others in the NCPRI say that the Lokpal should deal with corruption of only politicians and not of bureaucrats. Why this change of opinion?

You say that the setting of a timeline by Anna Hazare for the passage of the bill (August 15) is unrealistic and you refer to the Right to Information (RTI) Act was subjected to nine years of consultations.

What happened to your earlier view that “these discussions (on the anti- corruption body) will take place in a serious and urgent matter so that this legislation can be enacted as soon as possible”?

The basket of measures which you support now, says that the judiciary should be kept out of Lokpal and instead we should push for Amendments in the Judicial Accountability and Standards Bill, which is currently before the government.

This is a stand completely different the one you took in the meetings on April 3 and 4.  In fact, in the meeting it was agreed that to initiate prosecution against judges, the Lokpal would follow the same procedure as was followed for public servants. Why are you now for the exclusion of judiciary from the Lokpal?

What we know is your current stand on the Lokpal bill. But kindly make an effort to let us know what made you take such drastic change of views on such a crucial issue.

Thank you.

This appeared on http://www.governancenow.com on July 18, 2011

http://www.governancenow.com/views/columns/letter-aruna-roy

 


Transparency be default

Broadly speaking, there are two categories of information which a public authority has to provide under the Right to Information (RTI) Act – information sought by the applicant by filing application under the act and information made available suo-moto (without somebody asking for it).

While the situation appears to be somewhat fine with the former category, it is the latter which is still in the nascent stage even after five years of the enactment of the act.

Section 4 ofd the law mentions 17 types of information which the public authorities (bodies covered under the RTI Act) are supposed to display in a manner where the public can access it.

For long, civil society representatives have highlighted that the suo moto disclosure under section 4 was dismal across the country.

The good news is that finally the government has finally acknowledged this reality and has turned to civil society for help in better implementation of suo-moto disclosure.

The department of personnel and training (DoPT), the nodal agency for the implementation of the act, through an office memorandum, dated May 6, constituted a task force for effective implementation of section 4.

The 12-member task force includes representatives of DoPT, ministry of law, three state secretaries involved in enforcing the act and five representatives of civil society.

The task force will finalise its recommendations by the end of this month and submit the same to the DoPT for consideration.

What transpired during the first meeting of the task force held on May 25 provides insights to various aspects related to voluntary disclosure of information by the public authorities.

Here are some of the views which emanated from the meeting which took place at the capital’s North Block:

–    The weak implementation of Section 4 of the RTI Act is partly due to the fact that certain provisions of this section have not been fully detailed. In case of some other provisions, there is need for laying down detailed guidelines as to what information needs to be provided and in which form.

–    Public authorities are not averse to suo-moto disclosure. It is a question of what to put and how to put it. There has to be a move from the minimal to the aspirational level in public disclosures.

–    There is a need for developing a culture of information gathering. Collated information should be provided at various levels such as ward level, municipal corporation level and panchayat level.

–    The manner in which information is displayed needs to be changed.  The information should be in such a form and language as to be decipherable by the lowest strata of society.

–    All Plan schemes of the government should make it mandatory to reflect implementation of section 4.

–    There should be a provision of compensation in cases where section 4 is not implemented.

–     The mindset change should be from transparency by design rather than transparency by default. There is a need for open standards in e-governance.

–    There needs to be fixing of responsibility in case of noncompliance of Section 4 by the public authorities.

–    Public accountability mechanisms have to be defined such as uploading information and it’s monitoring in the various MIS which have been developed. These are essential for the systems to work. An ideal example is present in the MIS updates in Andhra Pradesh under the MGNREGA.

–    There is a need to ensure that all new laws had consistency with the RTI Act and there should be guidelines on what should be included.

–    The government has to find more ways of disseminating information like harnessing the strength of mobile, radio, cyber cafes.

–    There should be a centralised monitoring authority in compliance of Section 4 in every ministry/ department. There should be access to information through cyber cafe in district level and where the information is not available one can proceed to file an RTI application.

How many of the above ideas will be accepted by the government is yet to be seen. But the discussions certainly seem to move to an era of where the government offices will no longer be able to hide information on the pretext of it being confidential.

This appeared on http://www.governancenow.com on July 25, 2011

http://www.governancenow.com/views/columns/transparency-default


When law turns enemy

Dr Anees-ul-Haq, a dentist in Kucha Rehman of Old Delhi’s Chandni Chowk, was in for a shock when he received a notice from the deputy commissioner informing him that the properties he had rented out were “enemy properties”. The dentist was zapped. He had title deeds that clearly showed that his aunt, Jahangira Begum, had gifted these properties to him, his brother and mother. What’s more, the gift was duly registered with the sub-registrar’s office.
That was in 1985. The documents could not, however, save him from the lengthy trial that followed. It took him 19 years and a persistent judicial follow-up right up to the supreme court to prove that the properties did not belong to somebody who had crossed over to Pakistan between the wars of 1965 and 1971. After all, his aunt had died in Delhi on December 7, 1955 and had never been to Pakistan.

Dr Haq has, however, been just one of the victims of the Enemy Property Act (EPA), 1968, which dragged him through the courts.

Over the years, he became an expert and stocked two almirahs full of documents related to the legislation, according to which the custody and management of any property belonging to the enemy (as defined in the Defence of India Act, 1962) is vested with the Custodian of Enemy Properties (CEP).

The deputy commissioner told Haq that he was just executing the orders of the CEP and that he should go to the custodian’s Mumbai office if he wanted any relief in the case. “At that time, the CEP was under the ministry of commerce, but now it is under the ministry of home affairs (MHA). But the custodian’s office has always been in Mumbai. For any appeal, one has to go there only,” says Haq.

For years, Haq spent a majority of his income on lawyers, to say nothing of his time and energy. It was only in 2004 that the supreme court ruled in Haq’s favour and asked him to get the properties divested from the custodian.

Barely ten minutes from Haq’s clinic is Muslim Musafirkhana in Ballimaran. Also known as Kibriya Manzil, the popular guest house is a landmark here, as it is believed that Pandit Jawaharlal Nehru, Acharya Kriplani and Maulana Abul Kalam Azad used to meet in this complex to devise strategies during the freedom struggle. It is named after Hakim Ghulam Kibriya, a freedom fighter who owned this property and was a regular in these meetings.

In 1970, Kibriya’s son sold the property spread over 900 yards to Shah Sufi Abdul Qadir for Rs 1.20 lakh. Qadir, in turn, gave the property to the Waqf Board and converted it into a guest house. As per the deal, some part of the property would remain commercial and would be rented out. The rent given to the Waqf would be used for the upkeep of the guest house.

In 1993, Qadir’s son, Maulana Farooq Wasifi, the current trustee of the guest house, got a notice that the guest house was an enemy property. “It is a Waqf property since 1970. That is a fact and nobody on earth can question it,” says the 75-year-old, pointing to a dining table where, according to Wasifi, Nehru used to dine, “This is a national treasure.”

Besides the fact that both Dr Haq and Wasifi are residents of the walled city and that they had notices slapped on them under the EPA, the two share another similarity. Both had filed cases in the court against their tenants for non-payment of rent.
The tenants, according to both, complained to the CEP that the properties were enemy properties. Acting on these complaints, the

CEP issued notices which worked in the favour of the tenants.

“It has become a common practice for tenants these days. Just lodge a complaint with the CEP. Then the landlord spends rest of his life in court,” says M Salim, a supreme court lawyer who has handled several enemy property cases.

Salim believes that the biggest reason for the harassment faced by the landlords in enemy property cases is the absence of any checks and balances on the part of the custodian. “They just slap a notice on the landlord without any enquiry about the complainant and the mentioned property. Once the notice is issued, the onus is on the landlord to prove that his is not an enemy property,” says Salim.

Dr Haq says representatives of the custodian did not even bother to appear before the court in his case.

The second reason why the two words ‘enemy property’ are enough to terrorise the landlords is that the CEP has not set any deadline for the survey of these properties.

The guidelines regarding preservation and management of enemy properties in India, vested with the CEP, issued in the year 2000, talk about detection of all undetected enemy properties in the country. However, the guidelines do not prescribe any deadline for the same.

As per the data obtained from the CEP, there are 3,329 enemy properties in the country worth thousand of crores.

In August, the home ministry directed the Faridabad-based National Institute of Financial Management to evaluate the prices of  these properties, of which Uttar Pradesh has the highest number (1,526), followed by West Bengal (386), Goa (122), Delhi (67) and Gujarat (53).

At the time of writing, there are 1,238 cases in which the CEP is investigating if the property is enemy property.

That means, even 39 years after the war with Pakistan, the CEP is adding to its list of enemy properties acting on complaints, as those received in the cases of Haq and Wasifi. In the process, it is making tenants the de facto owners of the properties.
In many cases, by the time the CEP issues notice or summons the current owner, the property has changed many hands and it is difficult to trace the owner whose name is mentioned in the notice. “If you have bought the property in 2010, how are you supposed to produce the details of that person, who, as per the notice, migrated to Pakistan during partition?” asks Zafarul Haq Islam, editor, Milli Gazette and former president, All India Muslim Majlis-e-Mushawarat.

Islam blames lack of uniform procedures for the management of enemy properties across India for the mess – something acknowledged by the CEP in its 2000 guidelines.

The CEP has no set format for the notices which are issued in cases of suspected enemy properties. In many cases, the notices issued do not mention the EPA clause under which the action is initiated. The result is that the district officials at various levels, managing the properties on behalf of the CEP, follow different practices. There have been cases where policemen hand over the notice.

“I cannot forget the night of 14th July 1998 when a constable came to my house to give the notice. For next few months, I was convincing people that all was fine at my place and we were not involved in any criminal activity,” recalls Mohammad Shakir,

“Nobody likes a policeman to visit his home.”

The notice said that the property belonged to one Asifa Khatoon who was a Pakistani national. Shakir obtained documents which proved that Asifa’s name was there in the 1980 voters’ list and that she held an Indian ration card in 1983. There was a Delhi high court order which had declared Asifa the sole owner of that property.

Zameer Jumlala, president of the Indian National League, Delhi, says that everything about the functioning of the CEP is secretive.

Even after five years of the enactment of the right to information (RTI) act, the CEP does not have a website. One has to phone or personally go to the revenue offices of various states to find out details of the enemy properties.

There is no mention of CEP on the website of the MHA website.

Under section 4 of the RTI act, every basic detail about the public authority including its functions, details of employees and annualreports should be available on a public forum.

Maulana Farooq Wasifi at the guest house in Ballimaran, Chandni Chowk

Jumlana had filed an RTI application in January to seek the updated list of enemy properties. Responding to his application, the CEP asked him why did he want that list. “No officer can ask the applicant to intimate the cause for seeking information. Even the supreme court judges did not ask the cause from the RTI applicant seeking details of their assets,” he says.

Jumlana has been writing to the authorities about the lacunae in the enemy property act. Acting on his application, the national minorities commission (NMC) has demanded, twice, the repeal of the act. “The commission, therefore, recommended in its annual report 1998-99 that the EPA,1968, is wholly outdated and deserved to be repealed.”

In its action taken report (ATR) submited to the NMC, the government said that the repeal of the EPA, 1968 was not possible till the government of India and the governments of Pakistan and Bangladesh came to an agreement to return the properties of the migrants of each country bilaterally.

About a deadline to detect such properties, it said, “Detection of these properties is a continuous process and it would be contrary to the object of the act if identification and takeover process is stopped from a fixed date.

According to the ATR, the government

Dr Anees-ul- Haq at his clinic

cannot ask the complainant to submit any affidavit as the complainant may not like to be exposed for the fear of his life from the occupants of the valuable property.

On November 23, 1999, Jumlana sent a fax message to Manmohan Singh, who was then leader of opposition in the Rajya Sabha, regarding the illegal notices to the walled city residents. The same day, Singh forwarded the letter to chief minister Sheila Dikshit.
Nothing happened.

On October 20, the cabinet  approved amendment to EPA.

According to the Enemy Property (Amendment and Validation) Second Bill, 2010, enemy properties divested from the Custodian prior to 2nd July, 2010 or where the property had been returned to the owner or his lawful heir by an order of the court; and if the lawful heir is a citizen of India by birth, will continue to remain with such person.
Also, no court will have the power to order divestment from the custodian or direct the central government to divest enemy property.

“Just imagine, all this at a time when we play cricket with the so-called enemy, we have their actors and singers in our movies and both the countries have exchange programmes under which the students are given a chance to understand the culture of the other country,” sighs Dr Haq.

This appeared in Governance Now, November 1- 15 issue

 


Of course, Delhi must hold the Games, but why must Munnabhai not sell fruits?

The other day I came across Munnabhai after a long while. In his late 50s, Munnabhai is a fruit vendor. His fruits are famous for their freshness in the entire Darya Ganj area of central Delhi. Munnabhai is also known for his warm nature. He shares a bond with all his customers. He remembers what they bought last time; at what time in the day they had come last and what do they buy more often. One of the jolliest persons I have ever seen. Talking to him, one can forget all those worries and things which collectively increase the blood pressure.

He was back in Delhi after spending five years in his home town, Rampur in Uttar Pradesh. This time he was looking tired. “Kaise hain Munnabhai?” I asked. He kept on putting the apples on the scale without answering me. “Sab kheriyat?” I asked.

“Ye (read government) redhi lagne denge yahaan ya nahin? Sab bata rahein hain ke hamein bhaga denge…khel hone waale hain (Will the government allow us to continue with our business? I have heard that they will not, because of the Commonwealth Games),” he said, sending me in a tizzy. I had never seen that man so helpless. And I had no answer to his question, for I don’t know what the government has planned for thousands like Munnabhai who are present in every nook and corner of Delhi. Without whom the city just cannot survive. Who are away from their states to feed us. Whose faces and voices we have been living with for years. So much so that housewives recognise them from their shouts in the streets. In many parts of the city, vendors’ street-calls mark the beginning of the day. They have become us in all these years.

We have no clue what we will do if one fine day we discover that all those like Munnabhai have vanished. Will we all go to the nearest sabzi mandi? For some, it is a walking distance from home but a majority of us would have to spend considerable time , money and energy to go the vegetable market. Will we settle for fruits and vegetables sold by cooperatives like Mother Dairy? Or will shopping malls start stocking these items till the vendors like Munnabhai are kept of the picture perfect that they claim Delhi is.

Equally clueless are Munnabhai and his fellow vendors. They have not heard from the authorities. They just read in newspapers that they would have to make way for the foreign delegates and athletes who will be in Delhi for 12 days during the Games. The government schemes for them, if any, have not reached them. As you read this, hundreds of them would have boarded trains for their hometowns till the time the capital once again becomes ready to welcome them with open arms the way it has done for decades. You see, they cannot survive 12 days in this future Shanghai without livelihood.

Many of them are sole bread winners of their family. Sometimes they skip their meals so that their families back home can eat. I imagine Delhi as an ocean but the tributaries contributing to it are being temporarily cut off.
Street vendors who are left here are under a constant fear that any moment the authorities will ask them to wind up and go back. They closely listen in to their customers’ conversations for any update on CWG preparations. Every time they hear about the government’s drive against the beggars and the destitute, they think they are the next. Not having authentic information either way is hurting them more than any certainty of being shunted out.

For a moment, put yourself in the place of those like Munnabhai who are as much part of this city as the chief minister and the mayor are. Imagine waking up every morning with the fear that today you will be thrown out of the city. Imagine things that will happen to you after that. Where will you live? How will you survive? What will you tell your family? How will you feed your children?