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Right to Information
S. 4(1)(c) :
S. 4(1)(c) reads as under :
Obligation of public authority — “4(1) every public authority
shall —
(C) publish all relevant facts while formulating important
policies or announcing the decisions which affect the public;”
Shri Venkatesh Nayak had filed 2 RTI applications with PIO of
two departments of Government of National Capital Territory of Delhi (GNCTD)
asking for proactive disclosure of contents of the Delhi Police (Amendment)
Bill, 2010 (DP Bill) as required u/s.4(1)(c) of the RTI Act. He received no
reply. Mr. Nayak then filed a complaint u/s.18 of the RTI Act with the
Commission.
Subsequently Mr. Nayak was informed that the DP Bill had been
placed on the website of the Delhi Police, GNCTD and the Ministry of Home
Affairs, Govt. of India and comments from the citizens, media persons, etc. were
invited.
CIC, Shailesh Gandhi in the decision wrote as :
“A plain reading of S. 4(1)(c) of the RTI Act suggests that
every public authority is required to publish or disclose all facts and
circumstances, which are relevant and taken into account while formulating
policies and taking decisions that would affect the public. S. 4(1)(c) of the
RTI Act requires proactive disclosure of proposed laws/policies and amendments
thereto or to existing laws/policies to enable citizens to debate in an
informed manner and provide useful feedback to the government, which may be
taken into account before finalising such laws/policies.
Given that the DP is a significant legislative change, the
relevant public authorities involved in drafting of the said bill had a duty
to proactively disclose its contents u/s.4(1)(c) of the RTI Act. The concerned
public authority, however, acted only after the complainant approached the
Commission and filed a complaint u/s.18(1) of the RTI Act. The public
authority should have disclosed the contents of the DP Bill suo motu and by
omitting to do so, the very purpose of S. 4(1) of the RTI Act stands defeated.
The Commission has further observed that at present, the GNCTD is not fully
complying with S. 4 of the RTI Act and therefore, is of the view that citizens
must be provided with means to debate legislative and policy changes, which
are likely to affect public lives as contemplated by the GNCTD. The citizens
individually are the sovereigns of the democracy and they delegate their
powers in the legislature. The RTI Act has recognised this and S. 4(1)(c) is
meant to ensure that the citizens would be kept informed
about proposals for significant legislative and policy changes.
In view of the aforesaid, the Commission, under the powers
vested in it vide S. 25(3)(g) and S. 25(5) of the RTI Act hereby directs the
Chief Secretary, GNCTD to develop a credible mechanism in all departments for
proactive and timely disclosure of draft legislations/policies and amendments
thereto or to existing laws/policies in the public domain, as required
u/s.4(1)(c) of the RTI Act, during the process of their formulation and before
finalisation.”
[Mr. Venkatesh Nayak v. Chief Secretary, Government of
National Capital Territory of Delhi, Decision No. CIC/SG/C/2010/000345+000400/8440,
decided on
7th July, 2010.]
?
Secret Accounts of Indian citizens in Swiss banks :
Very significant decision of the Full Bench (4 members) of
Information Commission on the subject in National debate since long viz. money
of Indian citizens lying in Swiss banks.
Shri V. R. Chandran had sought the following information from
the PIO of Directorate of Enforcement :
(1) Whether the Ministry of Finance/GOI is aware of the
existence of secret accounts of Indian citizens in Swiss banks amounting to
1456 billion US dollars?
(2) If yes, has any action been taken to find the identity
of the account holders ?
(3) If the list of depositors is available, please provide
a copy of the same, with complete information about the depositors,
(4) Are the transactions legitimate ?
(5) If the deposits are illegal, what action has been
contemplated on them ?
(6) Has the GOI/MOF addressed the Swiss authorities for
repatriating the illegal money ? If
not, why ?
(7) Are there such accounts in any other
countries ?
(8) If all or any of the actions mentioned above have not
been done, please furnish the reason therefor,
(9) If MOF/GOI holds the view that the said media reports
are not to be trusted, what action has been taken or proposed to be taken on
them for false propaganda ?
The CPIO and the first Appellate Authority held that the
Directorate has been exempted u/s.24 read with the Second Schedule of the RTI
Act.
Before the Commission, some of the submissions of the
applicant were :
The Enforcement Directorate cannot dispute that exporting
Indian currency to foreign countries was illegal. It was possible only because
of failure of officers of the Government of India under the Enforcement
Directorate or I.T. Department. Because of non-exercising of the powers and
duties by the above-said officials, Indian citizens who deposited money in
secret accounts got pecuniary advantage to the extent of tax liability of the
said amount. Therefore, non-exercising of the powers by the officers would be
nothing but the abuse of power to cause pecuniary advantage to those persons who
deposited in secret accounts, which is nothing but a criminal misconduct as
defined by u/s.13(1)(d) of the P.C. Act. Further, the corruptive attitude is
glaringly evident that in spite of exposure by the news media the authorities
failed to initiate meaningful action to retrieve the money and even did not
enlighten the taxpaying citizens to know what was happening by furnishing
information under the RTI Act. Therefore, the whole episode involves corruption
and violation of human rights of all citizens, specifically the 30 crore
citizens living in undignified condition in India. As such, the applicant
satisfies the stipulations under the first proviso to S. 24 of the RTI Act, 2005
and hence the applicant is entitled to get information sought for and the
Enforcement Directorate is duty bound to furnish the same along with costs.
The Full Bench took assistance of the Ministry of Finance, Department of Revenue, Department of Banking and Ministry of Law and Justice in the matter. Their comments were invited. The Ministry of Law & Justice and Department of Banking did not give any comments on technical grounds. However, the Department of Revenue in brief stated as under :
The general impression that all accounts of Indian citizens in foreign banks are illegal is not correct.
Indian citizens, who are NRIs, can maintain and operate foreign accounts and there is no requirement to get permission or even inform the tax authorities or RBI in India.
The restriction is only for Indian residents. However, FEMA permits opening of accounts abroad with the knowledge or permission of competent authority. Thus, all foreign accounts of resident Indians are also not illegal.
Movement of funds from India to outside and vice versa are now permitted liberally under the FEMA regime.
The details of bank accounts of individuals are protected from disclosure even under the RTI Act, etc. As far as foreign accounts are concerned, the foreign banks do not come under the jurisdiction of Indian authorities.
In order to get the information from the foreign governments on bank accounts suspected to contain proceeds of crime/tax evasion, the Indian authorities have to indicate the name, a/c. No., crime/tax evasion and the jurisdiction for seeking the information.
Therefore, none of the agencies hold the full details of such accounts. There will be only the details of specific cases, which are under investigation, adjudication, prosecution, etc.
‘The Income Tax Authorities’ and ‘the Directorate of Enforcement’ are 2 agencies under the Department of Revenue, which deal with the illegal money of Indian residents lying abroad.
In order to bring back illegal Indian money lying abroad, the following actions have been initiated/taken :
a) The Income-tax Act, 1961 has been amended through the Finance (No. 2) Act, 2009, and it would enable the Central Govt. to enter into Agreement for the Exchange of Information and Assistance in Collection of Taxes (AEI&ACT) with non-sovereign jurisdictions.
b) In this regard, they have written to the Ministry of External Affairs with respect of 19 prioritised countries/jurisdictions, for taking up the matter with them for entering into such agreements.
c) Since the existing tax treaty with Switzerland does not provide for exchange of bank-related information, etc., the renegotiation of the tax treaty with Switzerland is being undertaken. The first round of negotiations was held on 10-12 Nov., 2009. Once the protocol amending the tax treaty is notified, India would be able to obtain bank-related information in specific cases from Switzerland.
d) MEA has also been approached to renegotiate the remaining tax treaties, which are in force, but do not specifically provide for exchange of bank-related information.
e) India has been actively taking part in building global consensus for taking action against those jurisdictions/countries, who are not transparent or cooperative in exchanging information with other countries.
‘The Directorate of Enforcement’ is listed in the Second Schedule of the RTI Act and therefore, in terms of S. 24 it is an exempted organisation. Assuming but not admitting that information about Indian money lying in foreign bank accounts is available with the Directorate, no disclosure need be made by the Directorate.
[My reaction to above 10 point reply : It appears that the Department of Revenue has diverted its reply to generality of the subject. It has not provided but avoided to give the information sought.]
Besides the above, the Directorate made submissions discussing DTAA with Switzerland, OECD standards on exchange of information as contained in Article 26 of the OECD model tax convention. He further stated that the Government of India has taken steps to collect authentic and accurate information about the black money stashed away. The Directorate of Enforcement also brought to the notice of the Commission writ petition (Civil) No. 176/2009 pending in the Supreme Court on the similar subject matter.
After considering the above submissions of both the parties, the Full Bench gave the following decision in 4 para, 14 to 17 of the order :
14. The issues, which have been raised in this RTI application, are serious and have understand-ably raised public concern. The Enforcement Directorate — the principal agency of the Government to check and undo illegal stashing away of money from the country — has taken a rather technical position about disclosure of the information relating to it. Their position, briefly stated, is that they cannot either confirm or deny the media reports about the likely volume of black money stashed away in foreign banks illegally by Indian nationals. While this position is, doubtless, defensible, it leaves unanswered the perennial question as to what resources the country has lost to the evil of money laundering. We would like this matter to be taken beyond technicalities and to address the larger issue related to transparency in this vital field, about which the citizens of our country are keen for answers.
15. While the Enforcement Directorate may take the position that they have no way of assessing the total volume of illegally held money by Indians in foreign banks, they can surely provide an estimate of the total volume of such money involved in the investigations they are presently conducting. In other words, the Enforcement Directorate can let the country know as to how much is the total sum of such money they are dealing with in their current investigations. This figure can be arrived at through the simple contrivance of aggregating the sums of money in all such investigations currently underway. The Enforcement Directorate need not disclose the nature of such investigations or the parties’ names. Surely, it is within its power to disclose the total amount of monies covered by these investigations.
16. The Enforcement Directorate had strenuously argued before us that they stand exempted from disclosure obligation under the RTI Act by virtue of their inclusion in the Second Schedule, u/s.24 of the RTI Act. We would like to dwell upon this aspect of argument in the context of a proviso built into the S. 24 itself, i.e., that these exemptions are subject to their not being matters of ‘human rights violations’ or ‘allegations of corruption’. In our view, all matters now investigated by the Enforcement Directorate in the matter of stashing away of Indian money in foreign banks, come within the definition of allegations of corruption in S. 24. There is eminent and compelling reason why this exception must be applied in the present case.
17. We direct the Enforcement Directorate to provide the information on Point Nos. (1) and (8) as per the direction in the preceding paragraphs. Point Nos. (2), (3) and (5) have been answered extensively in the foregoing discussions. Point Nos. (4) and (9) are questions which are in the form of seeking views and opinions and cannot be the subject-matter of RTI applications. Point No. (7) has been answered before us by the Department of Revenue.
[Shri V. R. Chandran v. Directorate of Enforcement, Appeal no. CIC/AT/A/2009/000353 decided on 28-9-2010]
PART B : THE RTI ACT 2005
In the last issue of BCAJ, the keynote remarks of Shri Gopalkrishna Gandhi at the CIC’s 5th annual convention held on 13th and 14th September 2010 was covered under this part. Now hereunder is covered the extracts from the speech of Shri Nandan Nilekani at the said convention :
A defining period for the country:
As a developing nation, the RTI Act was a decisive step for India. In most developing countries, citizen interaction with government is a Rubik’s cube of confusing procedure and requirements, and the asymmetry of power citizens face in interacting with governments encourage corruption and reduce the effectiveness of public services. The passing of the Right to Information Act in India was a big step away from this culture. The Act mandated that all citizens shall have the right to information, thus making it both a legal and justifiable right. It is a law that acknowledged that information can be a potent empowering force and critical to improving governance, and the public must have access to it.
A twin vision : bringing greater accountability in governance:
The Aadhaar Project, I believe, intensifies this movement. The RTI Act and the Aadhaar Project have a similar vision at their heart : that the government must be accountable to the people it governs.
While the RTI brings more accountability to governance by enabling better access to information, the UIDAI hopes to do this through the Unique Identification Number — the Aadhaar, it will issue to individuals across India. The number will allow individuals to clearly establish their identity to any agency in the country. This will be critical in combating the anonymity that impedes access for many of the poor to public benefits and services.
By authenticating their identity — either through biometrics or demographics — with the Aadhaar number in real time, individuals will also be able to verify whether they have received a particular service or benefit. This will bring last mile transparency to delivery of public services, and would also enable individuals to hold governments accountable when their wages and benefits are denied to them.
Such confirmation of benefit delivery is a particularly urgent requirement across social welfare schemes, since diversion and non-delivery of benefits has been a challenge across India.
The demand at the grassroots:
The Right to Information movement was driven by the passion of grassroot activists, and concerned citizens. From that local movement for ‘poora kaam, poora daam’ it became the national, visionary legislation we see now. The constitution of the UIDAI has a less romantic back-story, but has nevertheless, evolved into a project with similar transformational potential. There has long been a grassroot need for identity among India’s underprivileged, especially among the poorest and the most marginalised. Whether it is the anonymous migrants working and living in urban slums from Pune to Kanchipuram to Delhi; poor families unable to get BPL cards; or ordinary villagers who cannot open a bank account since they lack documentation, the demand for identity is palpable across the country, and the lack of it is deeply felt among the millions who work in the shadows of our institutions.
Building a bigger window:
accessing more information:
Since the Right to Information Act and the Aadhaar number have similar objectives for India’s residents, it is reasonable to consider that one can strengthen the other.
The vision of the RTI Act is a monumental one. In practice however, the Act has not been employed to the full extent that is possible. The RTI is most used today when a citizen applies for information from a particular public agency. We have been relatively less successful, however, in seeing the provisions of S. 4 enforced. S. 4 of the Act surrounds proactive disclosures — it states that public agencies and departments must release detailed information on operations and service delivery regularly to the public, and computerise records where possible for easier access. It requires public authorities to publish the matter of execution of subsidy programmes, including amounts allocated and the details of beneficiaries. In addition, it states that public authorities must maintain records as far as possible, in a computerised format, and connected by network all over the country to enable easy access for the public. For most public agencies and departments in India, however, computerising and releasing vast amounts of data, which now largely remain on paper, has proven to be a difficult task. Most departments, therefore, simply don’t do it.
The spirit behind S. 4 and proactive disclosure is that individuals should have to resort, as little as possible, to the Act in order to access information on public schemes. The Aadhaar-enabled applications the UIDAI envisions can turbo-charge the enforcement of these S. 4 provisions across our subsidy and welfare schemes, particularly within programmes such as the Public Distribution System and the NREGS. The availability of electronic records within such programmes would be a natural outcome of the applications that the UIDAI would implement in the coming years.
In the PDS, for example, public access to records through the RTI have been largely limited to the stock and sale registers of PDS outlets. The Aadhaar application in PDS would help enable broad-based computerisation of the PDS supply chain, making much of the available information across the various stakeholders electronically available. The Aadhaar application would enable every PDS beneficiary to confirm that they’ve received the grain by verifying their identity through Aadhaar. Such verification would be linked to an online MIS system. This would bring end to end accountability for every bag of grain — information on the movement of food grain that could be tracked online and in real-time, and published.
Petitioning the state:
enabling the underprivileged:
An important vision of the Right to Information Act was that it would bring the power of information to people most deprived of it in the country. However, the RTI application requires paperwork as well as follow-up in case it is rejected at the first level of appeal, which many of the poorest find difficult to do, due to the travel and additional filings that are required. BPL applicants face additional encumbrances — in order to waive the RTI application fees, they must provide documentation to prove that they are below the poverty line, which many of the poor don’t have.
Aadhaar could enable a mobile-based application, through which individuals could file an Aadhaar-linked RTI application through a mobile phone. Money could be debited either through the mobile phone or through an Aadhaar-linked bank account. The Aadhaar number could also be used to verify whether an individual falls into the BPL category. Follow-up of RTI requests and appeals could also be done remotely through mobile, reducing the travel and other practical constraints that the individual has to face. In addition, the status of the Aadhaar-linked RTI application could be tracked on a centralised, online database. Such a database would also enable the public and independent organisations to view the number of RTI applications that are pending, information that has been released, and so on.
Easing up the RTI process through Aadhaar applications would make the Act more accessible to millions across the country, particularly the poor.
The access to information is in itself a message : by enabling this, governments acknowledge that they are answerable to the people that elect them. By easing such information access to include the poor we would strengthen the objectives of the Act, help further reduce the inequalities that now exist between the ‘information rich’ and the ‘information poor’, and give the poor the tools to ensure that they receive better, fairer services.
Transforming India’s state-resident relationship:
What is perhaps the most defining feature of poverty is not just the absence of good housing and sufficient food, but the lack of access the poor have to the resources they need to change their circumstances — resources such as education, health, information and employment.
The RTI and Aadhaar are most fundamentally, about empowering the individual, and enabling such access for the poor. They do this by building a stronger, clearly acknowledged and accountable relationship between the state and the citizen. They give people the opportunity to form a direct relationship with their governments : through which they can request information necessary for them, demand individual recognition, get access to the services they need, and confirm to governments when they received an entitlement, and when they did not.
In the last few years, we have received a clear message in the recent policy efforts and reforms : that the path to development must be an inclusive, pro-poor one. The RTI and Aadhaar are potent, indispensable parts of this effort. Together, they can have a powerful impact on our broader reform movement : one that aims for a developmental agenda that is fairer, more equitable, and acknowledges and enables access for even its weakest citizens.
Part C?: Information On & Around
Political influence rules over merit :
Political interference at the highest level has been a common feature of the selection of staff at the Tamil Nadu Dr. MGR Medical University for three years between November 2006 and 2009, an RTI plea has found out. Documents obtained by TOI indicate the role of the Raj Bhavan and office of the State Health Minister in influencing the selection process in favour of certain applicants, thereby denying meritorious candidates a chance.
Errant taxi drivers of Mumbai :
There has been a rise in the number of errant taxi drivers being punished for rigged meters or inflated readings in Mumbai’s suburbs in the past three years. This was revealed in the official statistics provided by the RTO to civic activist Anil Galgali under the Right to Information Act. The RTO said in its RTI reply that the action was taken by the flying squads based on complaints lodged by commuters. “But why should RTO officials wait for us (commuters) to complain ? Why can’t these flying squads have surprise checks? I am sure they can catch several autos overnight if they go on a surprise round across the suburbs,” Galgali pointed out.
Maximum RTI applications in Maharashtra:
Statistics show that most queries raised under the Right to Information Act pertained to the State Urban Development Department. Of the nearly 4.5 lakh applications, clarity on issues related to the Department, which is considered crucial to the space-starved city. The data was provided by Chief Information Commissioner Suresh Joshi who addressed a press conference on his last day in office on 11-10-2010. According to Joshi, 12,5418 applicants sought information on matters involving the UD Department, followed by 72,393 info seekers who wanted the Revenue Department to answer their questions.
CIC rescued:
Recently, the Supreme Court has rescued CIC the nodal body for smooth implementation of RTI from slipping into administrative chaos. On May 21, the Delhi HC had quashed the CIC (management) Regulations, 2007, framed by the Chief Information Commissioner for smooth functioning of CIC. The HC had also held that the Chief Information Commissioner had no power to constitute benches of CIC. The Bench, after brief arguments, stayed only that part of the HC order which restrained CIC from constituting benches for distribution of work. This means, the Chief Information Commissioner can now allot work to other Information Commissioners, for speedy disposal of RTI appeals.
