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Odisha Right to Public Services Bill 2012: Cluster of loopholes

 

Monday June 09, 2014

Odisha, Public Services Bill, Naveen Patnaik, Government  
 

"Though the Odisha Right to Public Services Bill, 2012, has a pro-people posture, the Government of Odisha has  neither  invited  suggestion  from public  nor called for civil society  consultation  on the Bill which is highly desirable under section 4(1c) of the RTI Act. Even in its effort to maintain topmost secrecy, the Government did not put the said Bill in public domain prior to presenting it in the august assembly. The Rules (in draft form) required to be framed under the said Act have not been posted in public domain till date. This is, no doubt, a colonial practice of Odisha bureaucracy"

 

Pradip Pradhan

 
 

The Odisha Public Services Bill, 2012, is being pursued by the Naveen Patnaik government as a milestone bill aims at providing time bound service to the people of Odisha from 1st January, 2012. To mark a beginning, around 25 Public services are going to be made available to people of the state in a time bound manner under the Odisha Public Services Bill.

Tracing several loopholes and anomalies, many of the MLAs (Members of Legislative Assembly) of Odisha brought those points to the notice of the concerned Minister and suggested a series of amendments on the floor of the Odisha Assembly. Ranendra Pratap Swain, the MLA from Athgarh constituency, has suggested highest number of amendments in the Bill. We are still unaware whether the Government has accepted those suggestions and made necessary changes in the Bill or not.

 

However, to know whether Odisha Government has accepted the suggestions of MLAs and made necessary changes in the Bill, information sought through RTI (Right to Information) was denied.

It needs specific mention that though this Bill has a pro-people posture, the Government of Odisha has  neither  invited  suggestion  from public  nor called for civil society  consultation  on the Bill  which  is highly desirable under section 4(1c) of the RTI Act. Even in its effort to maintain topmost secrecy, the Government did not put the said Bill in public domain prior to presenting it in the august assembly.  The Rules (in draft form) required to be framed under the said Act have not been posted in public domain till date. This is, no doubt, a colonial practice of Odisha bureaucracy.

Even when the Bill was presented and debated in the Odisha assembly, we had brought to public notice a number of loopholes in the Bill and shared those points with the MLAs. The present form of Bill which was presented in the assembly is going to serve no purpose. Despite the said Bill being implemented, getting service within time-bound manner would still remain a distant dream for the millions of poor people the bill intends to serve.

The Bill doesn’t promise anything in substance

The above Bill right now doesn’t assure anything with regard to the list of public services that are to be covered by it or the time-limit within which any of such services shall be made available to an applicant. Such a conclusion is evident from a reading of Section-3 (1) of the Bill, which reads as follows:

No time-limit for the revisional authority

Going by Section 6( Revision), there is no mention of time-limit within which the Revisional Authority shall decide the revisional petition made before him by an applicant aggrieved by the order of the appellate authority or failure of the appellate authority for timely disposal of the appeal, as the case may be. Unless the timelimit for disposal of revision is provided in the Bill itself, the members of the public don’t stand to gain anything worth the name in the ultimate run from its enactment.

The duty of the Appellate Authority is discretionary, not obligatory

The Section 5(2) reads as follows:

The words ‘if so satisfied’ and ‘may’ imply that if the Appellate Authority is not satisfied as per his discretion, he may not issue a direction at all ‘within 30 days from the date of filing of appeal’ to the Designated Officer for supplying the service to the aggrieved applicant.

No time limit for disposal of appeal by the Appellate Authority

On a close scrutiny of the sub-sections (1) and(2) of Section 5, it will be apparent that there is no time-limt for disposal of appeal by the Appellate authority, though there is a discretionary power given to him for issuing within 30 days of the filing of the appeal a direction to the Designated Officer to supply the service so far withheld.

No special provision for expeditious service in case of emergency

The Bill does not provide for expeditious procedure or time-limit in regard to the services of emergency nature, such as treatment or bed in a Government hospital, supply of blood from a Blood Bank, food ration from a Government dealer, repair or reconnection of electric or water supply, rescue and relief assistance to a person affected by natural or manmade calamity etc. Needless to say, a person in need of such services which are crucial for his/her survival, if aggrieved by the non-response or deficient response by the Designated Officer, can’t afford the normal, time-consuming procedure of getting his grievance redressed by the appellate authority and revisional authority as suggested in the Bill. The Bill should provide for special procedures and time limits for expeditious delivery of emergency services and quicker disposal of appeal and revision in respect of such services.

Forms to be prescribed may truncate the rights of the public

In Sections 5 and 6 of the Bill, the aggrieved applicant is required to submit his appeal or revisional petion as the case may be in forms prescribed under the Rules to be made by the Government in future. It is worth noting here that while the Central Government and so many State Governments have not issued any Forms in deference to the letter and spirit of RTI Act 2005, the Government of Orissa have taken away several significant rights of the people guaranteed under that historic Act simply by imposing several compulsory Forms ultra vires the parent Act (such as Form-A for Application, Form-B for Intimation, Form-C for Rejection, Form-D for 1st ppeal and Form-E for 2nd Appeal). In view of such a bitter experience of Government of Orissa’s mishandling of RTI Act through imposition of arbitrarily designed Forms, the present Bill should refrain from mandating any Forms to be prescribed by the Government, be it for making appeal, revision or even for making the application for a service.

No scope of a direct approach

The Bill in its present structure, being rigidly hierarchical, is likely to discourage an aggrieved applicant from availing the grievance redressal mechanism provided there under. For instance, an aggrieved applicant can’t directly approach the Revisional Authority, who is not only the highest appellate authority, but also the only authority having penal powers against both Designated Officer and Appellate Authority (Vide Section-8). Since the Appellate Authority has no penal powers, it is likely that most of the grievances would reach to the Revisional Authority for final disposal, after getting routed through the Appellate Authority. But, by that time the aggrieved applicant must have suffered a lot of procedural hassles along with loss of time. In order to assure quick and ready justice, the alternative option for the aggrieved applicant to directly reach to the Revisional Authority alongside the present provision for approaching the Appellate Authority should be incorporated into the Bill.

Compulsory Attendance of the appellant in the hearings not desirable

The Section 7 of the Bill inter alia provides for:

 

The above provision implies that the appellant is bound to attend the hearings to be held before the Appellate Authority and Revisional Authority in pursuit of his appeal or revisional petition. Needless to say, the appellant has to bear the burden of financial expenditure involved in to and fro journey to attend the said hearings. Moreover, as the law of the land goes, if he fails to turn up before such hearings in response to the summons, he may land up in a miserable situation of getting imprisoned. It is worth noting here that the appellant, being an aggrieved applicant, is supposed to have suffered the financial loss and mental agony already caused by the denial of his entitlement to a service. The requirement for compulsory attendance in the hearings would under the circumstances add salt to the injury. Thus, this very provision of compulsory attendance of the appellant would defeat the very purpose of the Bill, and therefore deserves to be given up.

Items to be covered under the Rules need to be spelled out

Every Bill should ideally contain a Section where the list of items around which the Rules need to be made by the Government, in pursuit of the enactment, should be spelled out; otherwise there is a strong likelihood for the concerned group of bureaucrats to frame the Rules that would run counter to the letter and spirit of the Bill. In the present Bill there is no exclusive Section spelling out the items on which the Rules would be framed.

Provision of penalizing a ‘meddler’ is dangerous

The Section 2(e) defines ‘a meddler’ in such a way as to make a ‘demon’ out of any person who might help an applicant for service in the matter of making an application, appeal, revisional petition or attending the hearings as his representative. Then the Section 8(4) goes on saying,

It implies that any person who might voluntarily or at the behest of the applicant himself render help to an applicant in the matter of procuring a service or undertaking the advocacy or representation at different levels in favour of his entitlement, may be adjudged a meddler as per the discretion of the Appellate Authority or Revisional Authority and penalized by the latter up to Rs.5,000.

It needs to be mentioned here that in the peculiar situation prevailing in our country, especially in the backward State of Orissa, most of people even including the literate sections are not conversant with the cumbersome and complicated procedures of law and technical nitty-gritty of various schemes and are therefore dependent on social activists or NGO workers or their qualified well wishers for the purpose of approaching various authorities for availing the benefits of different proactive laws and schemes of the Government and financial institutions. No doubt, there may be a section of vested interests who exploit the poor, illiterate and gullible people in the name of representing or pleading for them before various authorities. Their numbers, however, are few and far between and, to catch and punish them, there are otherwise a plenty of laws and agencies of the Government in place all across the country. But, the manner in which the provision relating to ‘meddlers’ has been placed in the present Bill is fraught with the dangerous consequence of branding any and every collaborator as a ‘meddler’ and thereby punishing a vast number of sincere, committed and self-inspired social activists and NGO workers who may be advising, aiding and guiding the helpless and poor lot out of their humanitarian and philanthropic zeal.

Provisions relating to ‘eligible person’ are superfluous and liable to abuse

The Section 2 (c) defines the eligible person as follows:

It means that a person who actually requires the service as per the law shall be considered ‘eligible’ for applying for a service. This meaning has also been made explicit in Section 4(1) of the Bill. By implication, any other person applying for a service would be considered ineligible, and even a ‘meddler’ is liable for penalization to the tune of Rs.5000 under Section 8(4) of the Bill.

Enforcement of the Act and Rules to be made within a time limit

The Section 1(3) of the Bill leaves the date of the enforcement to the absolute discretion of the State Government. It implies that once the Bill is made into a law in its present or amended form, the said law may not be enforced at all. Nowhere does the Bill mention as to when the Rules under the Act shall be made, or whether the envisaged Rules are to follow the norm of ‘previous publication’ as defined under Orissa General Clauses Act 1937. Needless to say, such a Bill being in the nature of a proactive and progressive legislation, every Rule to be made under it should follow the principle of ‘previous publication’ i.e. the Draft Rules which requires to be posted in the public domain for public access and views. Thus it is required that the Act itself should mention inter alia the date of its enforcement along with the time limit within which the Rules are to be notified following the procedure of ‘previous publication’.

Unless all these issues are duly addressed before converting the bill into law, it would remain far away from achieving its goals The draft bill also needs thorough debate in political as well as other public forums and civil society groups.

[Author is the State Convener of Right to Food Campaign, Odisha. He, also,  leads the Odisha Soochana Adhikar Abhiyan.]

 
 

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