Friday, November 18, 2011

[RTI INDIA] Fw: Suggestions on changes in Citizens Right to Grievance Redress Draft Bill 2011

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From: kshirod rout <kshirodroutadv@gmail.com>
To: pk.jha@nic.in; satish@arpg.nic.in
Cc: Chitta Behera <chittabehera1@yahoo.co.in>; bibhutripathy@gmail.com; subha_bikash@rediffmail.com; ashokdalai@yahoo.com; ashoknanda6@gmail.com; pradippradhan63@gmail.com; ranjankrout@gmail.com; hkmohanty@hotmail.com; aruna.roy@nac.in.in; annahazare@hotmail.com; indiaagainstcorruption.2010@gmail.com; saiprasan2@gmail.com
Sent: Saturday, 19 November 2011 8:08 AM
Subject: Suggestions on changes in Citizens Right to Grievance Redress Draft Bill 2011

Report and Recommendation of Seminar on
Citizens Right to Grievance Redress Draft Bill 2011,
at Cuttack, Odisha on 15.11.2011
orgd. by All Orissa Progressive Lawyers Association
Background
The Dept of Administrative Reforms and Public Grievances, Government of India while releasing the Draft Bill on Citizens Right to Grievance Redress 2011, had issued an open invitation on their website http://darpg.gov.in/MarqueeHtmFile.aspx?CatId=40 w.e.f. 2nd Nov 2011 calling for comments and suggestions thereon from the members of public receivable by 23rd Nov 2011. In response thereto a Seminar was held on 15.11.2011 by All Orissa Progressive Lawyers Association to deliberate on the provisions of the draft bill and arrive at recommendations for changes necessary for incorporation into it so as to meet its stated objectives. 30 participants including a majority of lawyers attended the Seminar held in the evening at Project Swarajya, Bakharabad, Cuttack. The Seminar was presided over by Mr.Kshirod Rout Advocate Orissa High Court and President of the Association.   
Proceedings
Mr.Bibhu Prasad Tripathy, Advocate and General Secretary of Association while welcoming the participants observed that the Seminar has been called to elicit their views on a very important issue of the day i.e. Citizens Right to Grievance Redress Draft Bill 2011 and submit the same to the Government of India in the interest of making it as user-friendly as possible. It is now an open secret that any public office situated at cutting edge of administration, be it a Tahsil or a Thana runs through rampant corruption causing great angst among the common people. No doubt, every Department of the Government has since long announced their respective Citizens Charter, which assure to deliver different services maintaining quality and in a time bound manner. But hardly any officer pays heed to them, and as a result these have turned into dysfunctional paper documents only. Now that the proposed Draft Bill aims at bringing transparency and accountability in the entire process of delivery of public services, there has emerged a ray of hope for the common citizenry. But, in order that the draft bill on its enactment serves its avowed purposes, it needs to be cleansed of its lacunas and loopholes. The present Seminar precisely aims at identifying such deficits and appraising the concerned authorities to make necessary amends.  
Mr.Digambar Mohapatra, a peasant leader and former Chairman of Barang Panchayat Samiti- The farmers, who are struggling round the year for cultivating their land, do feel greatly harassed due to corruption in public offices with which they are used to transact. The present draft bill should have such provisions as to bring them relief from harassment caused due to corruption indulged in by the officials.
Sk. Kalimulaha, Lecturer Economics- He emphasized the need for in-depth discussion on the provisions of the draft bill so as to find out whether the grievances of common people can be genuinely and timely redressed by them.
Mr.Dharmesh Nayak, Advocate and ex- Corporator of Cuttack Municipal Corporation- As a matter of fact, of all the laws made so far the RTI Act has proved most useful and effective for the common people, simply because they could use it. The proposed draft bill, if enacted after a user-friendly pattern of RTI Act, may serve its avowed objective of ensuring a proper and time bound redress of public grievances. It is true that there also exist as of now provisions for the officers to hold weekly grievance sessions with members of public. But, practically no grievance is redressed through such cosmetic arrangement. It is therefore doubtful if the proposed law could achieve its proclaimed objective. Moreover, unless and until the grievance redress system is provided with adequate infrastructure and manpower, it can't address to the piles of grievances that may flow to it following the enactment of the new law. Another worrying factor is the usurpation of all the newly created posts by the retired bureaucrats, who had paid deaf ears to the public grievances during the tenure of their job. Above all, the Government should allow more time to the public to respond to the draft bill by way of their comments and suggestions.
Dr. (Ms) Minakshi Panda, Lecturer Political Science- From the experience of the recently enforced laws it has been observed that the very people at grassroots level for whom such laws were made have not been empowered; rather the very officialdom whose acts of corruption or misfeasance such laws were supposed to deter, have been visibly privileged and further strengthened. Take for instance the much talked about RTI Act, which obligates the Public Information Officer to help an applicant unable to write, fill up the application form for him or her. But, does it happen anywhere? Rather it is noticed that the PIOs do reject the RTI applications on the facile ground that an application for has not been properly filled up. Then, on a perusal of the draft bill, it is noticed that only judges and bureaucrats shall fill the new posts slated to be created for constituting the Grievance Redress Commissions at Central or State level. It is an ominous feature of the draft bill we all should be aware about. After all, in a country where, to quote Supreme Court Advocate Indira Jaysingh, flouting of the laws is an inbuilt in our culture of governance, where lies the guarantee that the proposed law shall prove different from the run-of-the-mill story witnessed so far.
Mr. Keshab Rout, former Councilor, Cuttack Municipality and Film Producer- It is a home truth in our country that it is not the elected legislators as such but the salaried bureaucrats who have been framing the laws of the land. They deliberately keep so many loopholes in every law they make, so that they can arbitrarily manipulate the same to their advantage while them. Take for instance the recent case of the dissolution of elected management of about 7,000 Cooperative bodies of Odisha including Urban Banks, which is a step that suits the vested interests of the bureaucratic class. In view of such experience, we need to be keenly careful about every loophole that the present draft bill might suffer from. 
Mr. Prashant Kumar Panda Advocate and ex-Standing Counsel for State Transport Authority- It is a matter of doubt how far the time-limits provided by the draft bill for redress of grievance petitions at the level of Public Grievance Redress Officer and HoD as the First Appellate Authority shall be adhered to. This question is pertinent in view of the bitter experience with the working of the Consumer Protection Act 1986 that prescribes a time limit of 90 days for redress of any case, only to be violated every time. Moreover, the question arises, how far is it wise for the proposed draft bill to leave the rule making business to the discretion of the States? As all of us know, the Chief Justice of Orissa High Court in capacity of a competent authority under RTI Act 2005 framed so-called Orissa High Court RTI Rules 2005, which is out and out ultra vires the parent Act. We have presented a memorandum demanding its amendment. Then, as per the draft bill only judges and bureaucrats shall fill the posts of the Commissions to be constituted at State and Central levels. Going by the past trends, the corrupt bureaucrats on their retirement shall occupy the posts of the Commissioners. To avert this possibility the draft bill should therefore provide for appointment of social activists as Members of Central or State Commissions. Above all, the draft bill should provide for one and uniform law on grievance redress for the whole country covering Centre, States and UTs.
Mr. Chitta Ranjan Behera Advocate- He wanted the participants to understand the context of the draft bill. While Jan Lokpal Bill of Anna Hazare seeks to offer a comprehensive approach to fight corruption and misfeasance affecting all organs of the State, the GoI's approach seems to be a disaggregated one. Going by the latter approach, the GoI now proposes to bring about a series of separate laws, each to tackle corruption and misfeasance in a particular important sphere of public life. As already mooted by the Ministers while releasing the draft bill, it is the first one in the contemplated series, others being Lokpal Bill, Judicial Standards and Accountability Bill, Whistle Blowers Protection Bill and Public Procurement Bill. It seems the GoI's piecemeal approach is more feasible and answers the anxiety of a section of intelligentsia who worry about the possibility of Anna's Lokpal ending up as a colossal power hub on one hand and unwieldy on the other. That being said, it is absolutely necessary that there be perfect harmony between the provisions of all these proposed laws, and also between them on one hand and RTI Act, the pioneering statute on the other. Otherwise, there would be chaos all around making things far worse than ever before.
The draft bill is purportedly made under item no.8 (actionable wrongs) of Concurrent List, and vests rule making powers to both Centre and States and even at one place enjoins upon the HoD, State Commission and Central Commission to regulate their respective procedures of adjudication. Such a dispensation shall result in a state of disarray and disaster. It is desirable that the whole law be made under residual power of the Union List, with the rule making powers vested only with the Union and with States left to make notification of authorities only, as in case of Domestic Violence Act 2005 or Forest Rights Act 2006. Besides, the proposed law like the RTI Act should have overriding power over the rest of laws of the country.
The draft bill has both good and bad provisions. For Instance, under the provision of deemed appeal, any appeal which couldn't be decided by the Grievance Redress Officer within specified time of 15 days, becomes a 'deemed appeal' before the designated Head of the Department who has to decide it within 30 days. The aggrieved person needn't bother about making a fresh appeal before the HoD. In contrast, however, the draft bill proffers a dangerous provision in Sections 23 and 39, which vests frightening powers to the State and Central Commissions to punish an appellant on several grounds.
Under the circumstances, we must read the Draft Bill between the lines to find out its omissions and commissions. Anna Hazare who has been pleading for a strong anti-graft law for ensuring hassle-free delivery of public goods and services must also take a position on the intentions and nuances of the present draft bill.    
Mr. Deepak Kumar Mohapatra Advocate- The draft bill should provide for the time limit for every stage of the appellate process. It should also provide for the receipt of acknowledgement of an application or appeal. There shouldn't any fees charged against making an application or appeal.
Mr. Ramachandra Ray, Advocate- The draft bill is a welcome step, since there is no such law on redress of redress of citizens' grievances. We have to accept it just as 'something is better than nothing'. Moreover, maybe, on our scrutiny and exposure of its flaws, the draft bill could be made sharper and more flawless.
Mr.Pratap Chandra Rout, Advocate-  Mr. Rout who is well known for conducting cases on corruption in mining sector, observed that a law should ideally remove the lacunas that may bedevil the existing system of administration making it difficult and inaccessible to the common man. The present draft bill has not specified its aims and objectives as elaborately as it should have. There is no specification of the amount of penalty against the defaulter officials or of the time limit within which the Commission Central or State shall complete the adjudication of an appeal. The so-called 'good faith' provision may be abused to their advantage by the dishonest officials as it has been witnessed in umpteen cases in the past. Right to receive a copy of FIR lodged in the Police Station should also be covered within the definition of 'service'. The draft bill should also cover the Judiciary and legislatures apart from the executive. The Commissions to be constituted under the proposed law should be adequately provided with staff and infrastructure, so that huge pendency of cases as being noticed in case of mainstream courts could be averted. The provision of automatic appeal, as provided at the stage between Grievance Redress Officer and HoD (First Appeal) should be there at every stage. Only one law in respect of grievance redress covering both Centre and States is necessary instead of separate laws to be made by the Centre and each State.
Mr.Chitta Ranjan Mohanty, Advocate- He welcomed the draft bill and the debate around it. The draft Bill should be, if necessary reframed in such a manner as to prove a handy tool to an average Indian farmer, who has neither the skill of a litigant nor enough time to run around offices to get his work done. The litmus test of a good law is the consideration whether the law concerned suits an average farmer of the country or not. 
Mr.Rohan Kumar Mohanty, Journalist- The provision for issuing of a receipt of Acknowledgement of an application or appeal is crucial in a rights based law like the one the present draft bill seeks to achieve. It should be kept as a mandatory provision at every stage of the grievance redress process.
Mr.Bhikari Das, Social Activist- While framing a new law in India, we need to take into account the concerns of the marginalized sections like Adivasis and Dalits, who are a little literate and adept in coping with the old, colonial procedures of official business. The proposed law on citizens' right to grievance redress should therefore be simple and user-friendly to such marginalized sections of our population. 
Mr. Khirod Rout, President – He read out Section 228 of IPC 1860 (Intentional insult or interruption to public servant sitting in any stage of proceeding) mentioned in Sections 23 and 39 of Draft Bill, which was referred to by Mr.Chitta Ranjan Behera inter alia in course of his talk. The said Section of IPC says, "Whoever intentionally offers any insult or cause any interruption to any public servant, while such public servant is sitting in any stage of a judicial proceeding, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both". It means that Grievance Redressal Commissions at both Central and State level can get any person including an appellant punished on this or that ground, and this very provision may deter aggrieved appellants from approaching the State or Central Grievance Redressal Commission in quest of justice.
The President then announced that the comments and suggestions generated in this Seminar shall on compilation be forwarded to the concerned authorities of Govt of India along with intimation to Anna Hazare and other members of Anna Team. He announced the meeting as closed and requested Mr.Basant Kumar Prusty to move vote of thanks.           
Mr.Basant Kumar Prusty Advocate- On behalf of the participants he offered vote of thanks to the Chair, speakers and all the participants for making the occasion a fruitful one.  
RECOMMENDATION-
The Seminar on the whole welcomed the Citizens Right to Grievance Redress Draft Bill 2011, applicable to both Centre and States released by Govt of India on the website, but wanted the existing deadline for submission of public comments and suggestions i.e. 23rd Nov to be extended by one month. The following are specific suggestions which the concerned authorities should bear in mind while revising the draft bill with a view to make it more effective and user-friendly-
1)      In keeping with the comprehensive definition of 'public authority' given in Section 2(k), not only the public authorities under the control of executive, but also those under the control of legislatures and judiciary should be brought under purview of the Draft Bill.
 
2)      Keeping in view the unhappy experience of abuse by some States of the rule making powers vested to them under a Central Act like RTI Act 2005, the proposed law should be made under residual power (item no. 97) of the Union List in the 7th Schedule of the Constitution, and the Central Government should bring out along with the Act the necessary Rules for operationalising its provisions, applicable to both Centre and States, leaving thus the only power of notifying various authorities required as and where to the States. Examples of such ideal legislation are Protection of Women from Domestic Violence Act 2005 and Forest Rights Act 2006.
 
3)      Keeping in view the unhappy experience of abuse of the word 'citizen' in the preamble and Section-3 of RTI Act by a State like Odisha ( such as by way of its State Rules requiring an applicant to attach to his or her application a copy of voter's card or passport as a proof of 'citizenship'), the present nomenclature of the draft bill may be redefined simply as Right to Grievance Redress Bill and the word 'citizen' as and where it occurs in the text of the bill be replaced by the word 'person'.
 
4)      The provision of 'deemed appeal' as provided in Section-11 (1) in respect of unaddressed complaints forwarded by Grievance Redressal Officer to the HoD, should be made available in respect of other stages of appellate mechanism.
 
5)      Time-limit for disposal of appeals by State and Central Grievance Redressal Commissions should be specified.
 
6)      Amount of penalty to be imposed by Grievance Redressal Officer, HoD, State Commission and Central Commission should be specified.
 
7)      Fees or compulsory Forms for making application or appeal by the members of public to various authorities mentioned in the Draft Bill should be avoided.
 
8)      In view of the burden of proof lying on the Grievance Redressal Officer in any appeal proceedings vide Section 40, the penal powers vested to the State and Central Commissions exercisable against any appellant on the grounds of false evidence under Section 193 of IPC vide Sections 23 and 39 of draft bill is superfluous and needs to be deleted.
 
9)      Moreover, the draft bill should unequivocally declare that the burden of proof in any appeal proceedings at any stage won't lie on the appellant who is an aggrieved person seeking justice from the concerned appellate authorities. Again, the draft bill while placing the burden of proof on the Grievance Redressal Officer vide Section 40, is however silent as to who in an appeal proceeding between the appellant and HoD or between appellant and State Commission shall bear the burden of proof. The draft bill should clearly provide for the burden of proof in any appeal proceedings to lie on the respondent, be it the Grievance Redressal Officer, HoD or State Commission.  
 
10)  The Sections 23 and 39 of the draft bill also vest penal powers to the State and Central Commissions exercisable against any appellant on the perceived grounds of 'intentional insult or interruption' (Section 228 of IPC) or 'procedure in certain cases of contempt' (Section 345 of CrPC 1973) or treatment of the case as the one based upon a police report (Section 346 of CrPC 1973). These provisions shall frighten away the common man so much that none shall dare to approach the Commissions for seeking justice. These provisions should stand deleted at once from the draft bill.
  
11)  The discretionary power given to HoD and State and Central Commissions 'to regulate its own procedure' vide Sections 11(4), 21(2) and 38(3) of the draft bill should be avoided. Besides, the paragraphs mentioned in these Sections saying inter alia that such appellate authorities "shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 but shall be guided by the principles of natural justice" are simply pompous and confusing and therefore be deleted completely.
 
12)  The proposed composition of the State and Central Commissions vide Sections 16 and 33 respectively is heavily leaning towards the State actors such as bureaucrats and judges to the neglect of such non-State sectors as academia and professionals. The condition of post-graduate degree for a member chosen from social sector is simply superfluous and deserves therefore to be deleted.
 
13)  Unlike the RTI Act 2005, the proposed law has no overriding power vide Section-50. As a result, there shall flare up endless litigations arising from the conflict between the provisions of this law with that of other laws pre-existing in force, and thereby rendering the law dysfunctional from the day one of its enforcement.
 
14)  A time-limit should be provided for the Governor or President as the case may be to adhere to in respect of taking action against a State or Central Commissioner on the grounds of corruption, misbehavior or incapacity etc. Moreover, the laying of a procedure for investigating the misbehavior or incapacity of a State or Central Commissioner shouldn't be left to the discretionary rule making powers of State Government or Central Government as the case may be, but like the RTI Act be spelled out in the draft law itself (vide Sections 20 and 37 of draft bill).
 
15)  The Section 48 of the draft bill inter alia envisages a hypothetical situation where a public authority or a person defaults in carrying out the order of the State or Central Commission. In such a situation the concerned Commission has been enjoined upon to move the concerned local Court to get its order enforced. But there is no time limit within which the concerned Court shall decide the matter and enforce the order. A close reading of the words and expressions used in the Section reveals that the concerned Commission may hand over to the concerned Courts the cases of those very appellants, with whom they might have felt dissatisfied for some reason or other and such cases shall in all probability hang on ad infinitum in those Courts. The Section 48 should therefore be deleted altogether from the draft bill.
 
16)  Like RTI Act, the proposed law should provide for Compensation to the aggrieved applicant/ complainant against the non-delivery, poor delivery or delayed delivery of good or service as per Citizens Charter.
            
Kshirod Kumar Rout, Dt 19.11.2011
President, Progressive Lawyers Association 
D/917, Sector-6, CDA, Cuttack-14, Orissa 
Email: kshirodroutadv@gmail.com, Mobile: 09937169865
 
List of Participants-
1)            Ramdas Achari, Advocate                                                            9437231061        
2)            Prashant Kumar Panda, Advocate                                              9437314529
3)            Pratap Rout, Advocate                                                                 9778064111
4)            Basant Kumar Prusty Advocate                                                   9861234171
5)            Rohan Kumar Mohanty, Journalist                                              9438509617
6)            Subhas Singh, CPI (M)                                                                    9437170281
7)            Digambar Mohapatra, Pesant Leader                                          9338226848
8)            Gitarani Das, Business woman                                                      8895800433
9)            Dr.Minashi Panda, Lecturer                                                          9437227066
10)          Brundaban Rout, Advocate                                                           9437142832
11)          Pratap Keshari Deo, Advocate                                                       9437310946
12)          Rama Chandra Ray Advocate                                                         9438126427
13)          Ramakant Srinath Pradhan, Engineer                                           9937508424
14)          A.I. Haq, Businessman                                                                     8895800433
15)          Jayanti Naik, Advocate                                                                   9437333183
16)          Bhikari Ch Das, Social Activist                                                     0671-2420867
17)          Keshab Ch Rout, Film Producer                                                     9437570750
18)          Surendra Kumar Rout, Advocate                                                  9583234803
19)          Surendra Nath Kar, Advocate                                                       9937750868
20)          Dharmesh Nayak, Advocate & Ex-Corporator                              9338403251
21)          Saira Mirza, Advocate                                                                    9040949100
22)          Tushar Kant Nayak, Advocate                                                       9437205305
23)          Bibhu Prasad Tripathy, Advocate                                                 9437012460
24)          Dipak Kumar Mohapatra, Advocate                                             9853458904
25)          Kshirod Rout, Advocate                                                                 9438613203
26)          Govind Bhagaban, Social Activist                                                  9437959153
27)          Chitta Ranjan Behera, Advocate                                                    9437577546
28)          Sk. Kalimulaha, Lecturer                                                                 9338510780
29)          Adhiswar Nanda Prasad, Social Worker                                        8763423716
30)          Raj Kishore Singh, Secretary JD (U), Orissa Unit                            9338683595
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Kshirod Kumar Rout
___________________

Advocate
Orissa High Court
_______________________________
e-mail :- kshirodroutadv@gmail.com
Phone No :- (0671) 2361866
                   9438613203


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