Whether co-operative Societies are public authorities ?

    In the judgment delivered on 3-4-2009, the Kerala High Court examined under the writ petitions the applicability of the RTI Act to co-operative Societies registered under the Kerala Co-operative Societies Act (KCS Act).

    The Registrar of Co-operative Societies issued Circular No. 23/06, taking the view that all co-operative Societies registered under the KCS Act, hereinafter, for short, the ‘Societies’, are under the administrative control of the Registrar and therefore, public authorities for the purpose of the RTI Act. Directions were hence issued, requiring all Societies to discharge the obligations as public authorities under the RTI Act and to follow the procedure stated therein. The information officers in the co-operative department of the State Government commenced acting on complaints for non-consideration of requests for information made by different persons to Societies. These writ petitions are hence filed, seeking to quash the aforesaid Circular and for the declaration that the RTI Act does not apply to Societies registered under the KCS Act. Certain actions taken by the officers under the KCS Act and orders issued by the State Information Commission touching the issue, in individual cases, are also under challenge.

    Societies are not government organisations. S. 2(h)(ii) of the RTI Act uses the term ‘Non-Government Organisations’, one not defined in the Act. S. 2(h)(ii), therefore, refers to something that is not part of the Government; which is very true of a Society, as pointed out even by the petitioners. If a Society is substantially financed, directly or indirectly by funds provided by appropriate Government, it falls within the inclusive definition of ‘public authority’; within the expanse of that definition clause. Therefore, any co-operative Society registered under the KCS Act is a non-government organisation and if it is substantially financed, directly or indirectly by funds provided by appropriate Government, it is a public authority for the purpose of S. 2(h) of the RTI Act.

    The Court then notes that the word ‘substantial’ has no fixed meaning. It ought to be understood definitely by connecting the context. The Court then quoted a few judgments of providing its meaning in the context of the code of civil procedure, the Income-tax Act, the Customs Act, etc. and as defined in the dictionary. It then said : “Such a spectrum of substantial wisdom essentially advises that the provision under consideration has to be looked into from the angle of the purpose of the legislation in hand and the object sought to be achieved thereby, that is, with a purposeful approach. What is intended is the protection of the larger public interests as also private interests. The fundamental purpose is to provide transparency, to contain corruption and to prompt accountability. Taken in this context, funds which the Government deal with are public funds, they essentially belong to the sovereign, “We, the People”. The collective national interest of the citizenry is always against pilferage of national wealth. This includes the need to ensure complete protection of public funds. In this view of the matter, wherever funds, including all types of public funding, are provided, the word ‘substantial’ has to be understood in contradistinction to the word ‘trivial’ and where the funding is not trivial to be ignored as pittance, the same would be ‘substantial’ funding because it comes from the public funds. Hence, whatever benefit flows to the Societies in the form of share capital contribution or subsidy, or any other aid including provisions for writing off bad debts, as also exemptions granted to it from different fiscal provisions for fee, duty, tax, etc. amount to substantial finance by funds provided by the appropriate Government, for the purpose of S. 2(h) of the RTI Act”.

    Based on the above view and after examining as to whether the provisions of the KCS Act and Rules are relevant to decide whether the definition in clause in S. 2(h) of the RTI Act applies to co-operative Societies, the Court came to the conclusion that it is beyond doubt that the Societies are substantially financed by funds provided by Government.

    The Court then rules : “It is held that co-operative Societies registered under the KCS Act are public authorities for the purpose of the RTI Act and are bound to act in conformity with the obligations in Chapter II of that Act.”

    As the applicability of RTI Act to the co-operative Societies has arisen in many States and being discussed at many platforms, I reproduce three concluding paras of this judgment which are of common application in all cases :

    The question for decision in every other individual case of a Society, in the event of any dispute, would be as to whether it is substantially financed by the State Government, in the light of what is stated above. That may have to be determined with reference to the financing of each Society. That question would arise for decision only when any co-operative Society refuses to act as a public authority. In such event, any citizen whose right to information is legislatively conferred as per S. 3 of the RTI Act would be entitled to trigger the duty of the State Information Commission in terms of clauses (b), (e) and (f) of S. 18(1) of the RTI Act. In that context, the State Information Commission has every jurisdiction to adjudicate and decide on the question as to whether a particular co-operative Society, against which a complaint is made u/s.18(1), is a public authority for the purpose of S. 2(h). The mere fact that the RTI Act does not expressly prescribe any limits as to finance, to determine the scope of the word ‘substantially’ in S. 2(h) does not give rise to any presumption of possible abuse of power. This is because the State Information Commission, as already found, is the authority which can determine that issue on a case-to-case basis. That power is with that high office, the quality of which is statutorily regulated. Declaration of law as made in this judgment would stand to aid as precedent, by law. Advertence to Sections 12, 15, 16, etc. would show that the Legislature has reposed the powers in such a manner that there could be really no room for any presumptive argument as to possible arbitrariness and apprehension of incompetence. Even with reference to the KCS Act, lots of yardsticks would be available. There is no ground for any such apprehension being recognised with any element of legitimacy.

Insofar as the contention that information is sought for by different individuals for no rhyme or reason is concerned, the answer is short but clear, and is found in S. 6(2), which provides that an applicant making request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him.

Having found that co-operative Societies are public authorities for the purpose of the RTI Act, another issue surfaces for consideration. In some of the cases in hand, applications for the information were submitted to the statutory authorities under the KCS Act and KCS Rule requiring them to summon information from the Societies. Instead of summoning information by exercising the authority under the KCS Act and KCS Rules, those officers have forwarded those requests to the Societies, requiring them to answer the queries. The definition of information in the RTI Act includes information as is accessible through such statutory authorities. All such information as is accessible through the mechanism of the KCS Act and KCS Rules thus becomes information for the purpose of the RTI Act. Therefore, the provisions under the RTI Act themselves would be sufficient for reaching at such information. Hence, the question whether the authorities under the KCS Act and KCS Rules should have summoned the documents without requiring the Societies to communicate the information, is too technical and should necessarily give way to the primary object of the RTI Act, viz., to provide access to information. Therefore,  there is no illegality in any officer vested  with  powers under the KCS Act and KCA Rules forwarding the request obtained by them to the concerned. Societies with  a request or direction  to that Society to provide information directly to the person who  has sought the information.

[Thalapalam Service Co-operative Bank v. Union of India, WP (C). No. 18175 of 2006 and connected cases decided on 3-4-2009 in the High Court of Kerala at Ernakulam].

Denial of information by the Registrar of Companies:

Mr. Dharmendra Kumar Garg sought certain information from the PlO of ROC of NCT Delhi and Haryana regarding Bloom Financial Services Ltd. The same were denied. Before the Commission, the PlO submitted the following:

1. Once the information is available  in the public domain accessible to the citizens, the information is automatically excluded from purview of the RTI Act as held by Hon’ble Information Commissioner Shri A. N. Tiwari in the case of ClC/ AT / A/2007 /00112.

2. S. 610 of the Companies Act, 1956 provides that any person may inspect any document kept by ROC and obtain copy of any document from the ROC concerned on payment of prescribed fee. Therefore, the complainant need not seek information under the RTI Act. This was held by the Hon’ble Information Commissioner Shri M. M. Ansari in the case of ClC/MA/ A/2006/0016.

Following is the order of ClC, Mr. .Shailesh Gandhi:

For the first argument the Respondent relied on the order number ClC/ AT / A/2007 /00112 where it was held by the Hon’ble Commission while interpreting S. 20) of the RTI Act that” …. Unless information is exclusively held and controlled by a public authority, that information cannot be said to be information accessible under the RTI Act. Inferentially it would mean that once a certain information is placed in the public domain accessible to the citizens either freely or on payment of a pre-determined price, that information cannot be said to be ‘held’ or ‘under the control of the public authority’ and thus would cease to be information accessible under the RTI Act …. ” I would respectfully beg to differ from this decision. Even if the information is in public domain, an applicant can still ask a public authority to grant him the information if it is held by it. Even if some information is available at various places, it is the citizen’s choice from where he wishes to access it. The only exemptions from disclosure of information available in the RTI Act are provided u/s.8 and u/s.9. The Commission would like to clarify that S. 2 of the RTI Act is the definitional provision and therefore S. 2(j) is not an exemption clause under the RTI Act. It merely defines the ‘right to information’. So the exemption from disclosing the information cannot be sought u/s.2(j). It is also the basic tenet of the law of statutory interpretation that no Section should be interpreted in such a manner which would violate the basic objective of the statute. The basic objective of the Right to Information Act, 2005 is to provide the information sought by the applicant from a public authority and therefore the Sections of the Act should be interpreted to further the objective of this Act. Also the information sought by the complainant here has not been provided on the internet. The information asked for is very basic information and records related to this particular information are missing. This information is very important for the complainant as he is facing a threat of arrest and needs the information to prove his innocence. Not granting such information clearly leads to violation of the fundamental right of the complainant as provided under Article 21 of the Constitution.

With regards to the second argument of the respondent about information to be sought only u/s.610 of the Companies Act, the respondent has relied on order number ClC/MA/ A/2006/0016 of the Commission where the Hon’ble Commissioner Shri M. M. Ansari upholding FAA’s order stated that “There is already a provision for seeking information u/s.610 of the Companies Act, 1956. The complainant may accordingly approach the ROC as advised by the Appellate Authority to obtain the relevant information.” If the complainant has more than one way of seeking remedy he has the freedom to opt for the way which is more convenient for him. No claim has been made by the PlO of any exemption under the RTI Act to deny the information. If a public authority has a procedure of disclosing certain information which can also be accessed by a citizen using the Right to Information Act, it is the citizen’s prerogative to decide which route he wishes to take. The existence of another method of accessing information cannot be a justification to deny the citizen this freedom to exercise his fundamental right codified under the Right to Information Act. If the Parliament wanted to restrict this right, it would have been stated expressly in the Act. Nobody else has the right to constrain or limit the rights of the Sovereign Citizen.

With the views taken as above, the ClC directed that complete information will be given to the complainant before 25th July 2009. If records are not available for any of the queries, this will be stated categorically.

[Mr. Dharmendra Kumar Garg v. Registrar of Companies & CAPIO, decision No. ClC/SG/C/2009/ 000753/4129 of 14-7-2009].

Work practices at an Information Commission:

Yutika Vora and Shibani Ghosh have made out a report on the above subject in July 2009. It is a report written  with primary objectives that taken by Mr. Shailesh Gandhi, Central Information Commissioner, New Delhi may be adopted, after making necessary changes, in other Commissions across the country. Mr. Gandhi’s office is continuously striving to improve its work processes. Increasing efficiency entails that more time is available to focus on S. 4 compliance and S. 25 monitoring. The Right to Information is a fundamental right enshrined in the Constitution of India and as statutory bodies entrusted with the responsibility to uphold this right, Commissions must deliver to give this right its full meaning.

I reproduce  some extracts from the said report. (Full report is posted on BCAS website www.bcasonline.org)

This report describes the working processes that have been adopted in Mr. Shailesh Gandhi’s office, which have resulted in a high rate of disposal of cases; reduced the time in which communication received by the office are responded to; and monitoring of S. 4 compliance have been initiated. The report also provides examples of documents that have been referred to in the report in the form of Annexure – such as types of responses sent by Mr. Gandhi’s office, his orders, and other documents used by the office during its working.

Mr. Shailesh Gandhi took charge as Central Information Commissioner on 18th September 2008. He brought with him the conviction that for the rule of law to be upheld, the legal system has to function in a timely manner and justice has to be delivered in time. If justice is delayed, then the rule of law becomes a fiction and the citizen is denied his rights in a democracy.

The fundamental premise  on the basis of which his office works  is that law is time-bound. For the information    to be useful it has  to ensure that  it is made available within  a reasonable period  of time. One of the biggest  strengths of the Right to Information  Act, 2005 is that it requires information to be provided  within  a reasonable  timeframe.  If cases are not disposed within this timeframe, the spirit of this Act is-severely undermined. The importance of the time element in this Act is apparent  when one looks at the penalty provision S. 20 of the Act. In fact, to ensure  timely  response by the Information commission,  the first RTI Bill of 22nd December, 2004 had a provision  that the Information Commission would dispose a case  within thirty days.

However, this provision was dropped at the last moment without any explanation. Mr. Gandhi’s office believes that a timely response is essential and therefore makes strenuous efforts to ensure that cases are disposed within ninety days.

An Information Commissioner costs the nation about 25 lakh Rupees annually. The average yearly disposal of Information Commissioners across the country is around 600, thus the nation is spending an astounding amount of over Rs.4,100 per case only on the Commissioners. This is of course only a part of the expenditure on each case as it does not include costs to maintain an office, infrastructure, etc. If however a Commissioner could achieve an average disposal rate of 4000 cases per year, the nation would spend Rs.625 per case on the Commissioner.

Mr. Gandhi’s office has achieved an average monthly rate of disposal of 535 during 2009, with disposal of 3212 cases in the first six months of 2009. Mr. Gandhi is not the only Commissioner to have achieved such figure. Ms. Annapurna Dixit, Central Information Commissioner, has achieved an average monthly disposal rate of 345 cases by clearing 2070 cases in the same period. Setting a target of 4000 cases a year, and achieving an average monthly disposal of 330-340 case’, is not an impossible task and Mr. Gandhi and Ms. Dixit have proved it consistently.

Mr. Gandhi’s office receives on an average nearly 1600 ‘daks’ every month and a system is developed that between 4 to 6 assistants, the same are distributed, each person is given 10 to 20 daks. Most of the staff members are trained and encouraged to take up various functions in the work flow. Daks are attended within 24-48 hours. Numbers of templates have been prepared to reply to daks. Once an appeal or complaint is found in order, it is registered on the online registration system at www.rtiadmin.nic.in.

After the Second Appeal is registered, a summary is prepared. The summary is used as a preface to the order given by the Commission. The summary is available to Mr. Gandhi from at least a week before the date of hearing. The summary is also open on his desktop during the hearing and he can at any time refer to the documents which are also in front of him. Reading the summary helps Mr. Gandhi to get a gist of the case before the hearing.

It also serves as a ready reference for someone reading the order subsequently, who does not have access to the file.

Once the summary is prepared for a case, it is scheduled for hearing. Mr. Gandhi fixes 20 cases a day for hearing and notice for hearing is sent generally 25 to 45 days before the date of hearing.

In most of the cases, after hearing both the parties which takes approx 15 minutes, the decision is dictated and directly typed on the computer; the decision gets signed by Mr. Gandhi immediately and delivered on the spot. In less than 5%, the Orders are reserved and delivered on a later date after due consideration to the matter.

A very effective process for deciding a complaint is also worked out. Similar effective process is also worked out to deal with non-compliance of orders delivered by the Commission. The Commission also receives dak which are not Appeals or complaints, etc. The same are dealt with as under:

Queries  with  regard  to RTI Act:

A few dak each week ask queries with regard to implementation of the RTI Act as well as the rights and obligations under the RTI Act. All efforts are made to send an adequate response to such queries as Mr. Gandhi believes that the Commissioner’s responsibilities are not restricted to cases brought before him, but also extend to disseminating awareness and better understanding of the RTI Act.

Communication  in relation  to S. 4 compliance:

The office sometimes  receives communication from citizens that certain information which should have been disclosed suo moto by a public authority by 12th October 2005 and till date has not been disclosed. In such cases, after due consideration to the facts and research, a letter is sent to the head of public authority directing it to ensure that it fulfils its obligations u/s.4.

Communication in relation to monitoring u/s.25 :

 U / s.25 of the RTI Act, public authorities have to submit information on the implementation of the RTI Act to the Commission. Mr. Gandhi has asked certain public authorities to submit information to him by the 10th of every month. This information can be sent to the office by email or by post in a form which is standardised.
 
Mr. Gandhi believes that to ensure a holistic success of the Act, emphasis needs to be laid on the fulfilment of the obligations u/s.4 of RTI Act. For this reason constant efforts are being made to bring to the attention of public authorities their obliga-tions u/ s.4 of the RTI Act.

Disposals in his office in the first six months of 2009 are more than the number received. In six months from January to June 2009, appeals and complaints registered are 1575 and 758, respectively, totalling 2333. Against the above, appeals disposed are 1975 and complaints disposed are 1219, totalling 3194.

The pendency of cases at the end of June 2009 is 618 cases, out of which 56 cases have been pending over 60 days. Mr. Shailesh Gandhi is reaching soon to his goal of all disposals of appeals and complaints within 60 days.

•  Wajahat    Habibullah

Sayed Nazakat in the magazine WEEK of August 16, writes:

There aren’t many bureaucrats like Wajahat Habibullah. As India’s first Chief Information Commissioner (CIC), he defends the right of common people to open information. “When someone learns to use RTI, he almost becomes addicted to it,” says Wajahat, sitting in his office in South Delhi. He explains why it is important to create more awareness about the Right to Information (RTI) : “It will bring democracy to its rightful owners – the people of India.”

The Right to Information Act was passed nearly four years ago, and Wajahat was asked to implement it. Today, it allows citizens to inspect Government records, take copies and question the authorities for a fee of Rs.10. “RTI is a magic wand. For the first time, the common man has an effective tool to fight bribery and bureaucratic apathy,” he says. “it has worked particularly well for routine tasks, such as getting passports and pensions, which previously took months or years.”

RTI has not been popular with bureaucrats who often ignore requests for information. The CIC is pondering granting of appeals which would allow people the right to access the sources of funds of anyone seeking public office.

•  How effective  is India’s RTI Act:

The news item in the Hindustan Times quoted a prominent Central Information Commissioner Shailesh Gandhi, warning the country that the Government and the judiciary together pose a serious threat to the RTI. Gandhi argued that the Government’s infrastructure — training, resources for implementation of the RTI is woefully inadequate. He also highlighted the role of the Courts in weakening the Act. The judiciary has been granting stays on orders of the Information Commission – which  he noted  is a very  dangerous  trend.

•  Mockery  of the RTI Law by some  Courts:

The gap between the judiciary’s traditionally insular self-image and the public’s rising expectations of accountability from all institutions is evident from the rather surprising interpretation made by the Supreme Court and some of the High Courts on the nature of information that would fall under the ambit of the RTI.

Making a mockery of this much-vaunted legislation, these Courts have made out on their administrative side that the only kind of information that can be accessed by citizens under RTI is what is already “in the public domain”.

When it challenged the Central Information Com-mission’s direction on the declaration of assets by Judges, the Se, in its petition before the Delhi HC earlier this year, had claimed that RTI’s definition “shows that the information which is required to be given must be information in the public domain.” Accordingly, it argued the application regarding declarations of assets by Judges was not maintainable inasmuch as the information sought for was neither in the public domain, nor was it required to be given or maintained under any statue or law.”

If the SC’s interpretation of the definition of information were to be valid, none of the public authorities should have been, for instance, disclosing file notings because given the confidential manner in which they are written by bureaucrats and ministers during decision-making, they are clearly not in the public domain. It is the operation of RTI that has brought into the public domain all manner of information that would have otherwise remained behind the official veil of secrecy. The wide-ranging definition of information contained in S. 2(f) of RTI does not bear out the SC’s claim that it is limited to material lying in the public domain. In fact, the SC seems to have imported the expression “in the public domain” into its petition on the basis of the rules framed by the Delhi HC

For, under the rules framed by it in 2006, the Delhi HC assumed the power to withhold “such information that is not in the public domain or does not relate to judicial functions and duties of the Court.”

•  Pay-Se-Park in Mumbai :

An advocate, whose two-wheeler was towed away because he did not give in to the demand of a man who was running an illegal pay-Se-park racket, used the RTI Act to learn how BMC contractors exploit the lack of parking space to line their pockets.

Advocate Sushil Dalvi, who works with the I-T Department, says, “Parking in South Mumbai is a horrible experience. Rules provide charge for two-wheelers at Re.l per hour, but I have been charged anything between Rs.S to 40.”

Most people cough up the money as they don’t want their vehicle towed away. But Dalvi’s tolerance ended six months ago. He had parked his scooter near Cafe Noorani at Haji Ali, a spot where several two-wheelers were parked. But, when he returned after lunch, only his two-wheeler had been towed away though there were several parked in the same spot. After probing around a bit, he learnt why.

He had refused to pay a person who claimed to be running a pay-&-park business there. And, he was right in doing so because the business was illegal. The space had not been earmarked for pay-&-park and was, in fact, a no-parking zone. Dalvi got his vehicle after paying a fine.

Immediately after the incident, Dalvi filed an RTI query with the BMC demanding details of pay-Se-park contracts allotted in wards A, B, C, D, E, F (south and north) and G (south).

“When I compared the plans with the actual parking plots, I found out that most accommodate more vehicles than they are authorised to. Also they expand their area of operations by encouraging double parking, parking on both sides of the road and on footpaths. But when I pointed out these illegalities to civic officials, they simply threw up their hands.” said Dalvi.

(Source: Mumbai Mirror of August, 2009)

• Mumbai SSC Board and RTI :

Pune Information Commissioner Vijay Kuvalekar has ruled in the case pertaining to Pune SSC Board that answer sheets were not confidential since they were not covered ul s.8 of ‘he RTI Act.

However, Mumbai SSC Board’s PlO in case of Samir Kanparia, rejected the application to inspect the answer sheets and held that they are confidential as per the provisions of law, and secondly, that no public interest will be served if the student is allowed inspection of answer sheets, hence will not allow him to inspect them. Kanparia also submitted before the Board the order passed by the Central Information Commission, in which it had directed the Institute of Chartered Accountants of India to show answer sheets to a student.

Matter is now pending in appeal before CSIC, Dr. Suresh Joshi.

• Proposed Amendments to RTI Act:

• Performance at the Central Information Commission of 7 Commissioners:

The following is the chart of disposals by CICs in the first seven months of 2009.

• The RTI Act should be included in the syllabus at high school and college-level education.

• Information of public interest can be taken to door-steps of citizens.

• Commissions  can prioritise  second appeals/ complaints,  which  are  of public  interest, over the ones which are self-centric and self-serving.

• Uniformity in fees, further fees (costs) and charges for inspection, etc. throughout the country.

• Uniformity as regards disclosure obligations for items such as Annual Confidential Reports (ACRs), Annual Property returns (APRs), DPC proceedings, Income-tax returns, etc.

• More publicity on the RTI Act should be done by Doordarshan and All India Radio. Alternatively, the Central Information Com-mission can run its own private TV channel dedicated to RTI.

• RTI journal be made for circulation among the Commissions.

• Honorarium/incentives to PIOs/ APIOs for doing additional work.

•  Progress of Governance

Writing on Narendra Modi, Mr. Pavan Varma (former diplomat and currently adviser to the Bihar C.M.) writes-

And, finally—and this is something that touches the life of every Indian—of what good is governance if it revives communal strife thereby jeopardising the very project of governance?

•  From TISCO’s annual report under the title “Governance Systems”

Policies
A number of policies have been put into place to ensure that governance standards are met. They are based on zero tolerance towards corruption and unethical behaviour. These include:

• The Gift Policy
• Whistle Blower Policy
• Whistle Blower Reward Policy
• Vendors Whistle Blower policy
• Sexual Harassment Prevention and Redressal Guidelines

•  Pending cases at magistrate courts in Mumbai:

In 75 magistrate courts in Mumbai as on 01-04- 2013, pending cases as per reply received to the query made under RTI are 3.82 lakh. As on 31- 07-2013 number is 3.72 lakh. When classified it reveals that 8464 cases are pending for more than 20 years, 51074 pending more than 10 years and 67721 are pending since more than 5 years. Highest number of cases, (11953), are in 26th court, Borivali and lowest, (102) in 19th court, Esplanade.

•  Relief to sexual crime victims

Gopal Kansara has proved that RTI is potent weapon in the hands of humble citizens.

Acting on the 2011 Supreme Court directive to States to formulate a plan to provide relief and rehabilitate women who had been assaulted or raped, Kansara has used RTI to make sure the verdict is implemented. In the process, he has brought succor to a minor rape victim in his locality, a woman publicly molested in Guwahati and several trafficked children in Delhi.

“On January 2 this year, newspapers reported that a minor girl had been raped by a driver nearby. I wrote to the district collector seeking monetary relief for her,” said Kansara. As he got no response to his letter or fax, Kansara filed an RTI in February asking for a copy of the FIR, the medical report, action taken report and details of rehabilitation.

“After the RTI application, the collector wrote to the local authorities and Rajasthan chief minister. Soon Rs. 3 lakh was sanctioned for the girl and deposited in a bank,” he said.

He did something similar in the case of the public molestation of a 20-year-old girl outside a Guwahati pub by over a dozen men in mid-2012. “I did not know her, nor have I ever been to Assam. But I strongly felt I should do something. I filed an RTI application with the Assam government asking what relief had been given to her [as per the SC order]. Soon she was given Rs. 50,000 by the state government,” he added.

Since 2006, Kansara has filed more than 750 RTI applications on a range of issues and says he will continue to do so even though he has been threatened with murder several times. “The RTI has done what no other law in the country has done. It has made the common man a VIP. It has freed him from approaching local politicians every time for little things.”

•  Refund of Security Deposit etc. by Kelkar College:

RTI activists, Ranjit Mahanti in reply to his RTI application to Kelkar College, Mulund was informed that data he had sought would require much work and asked him if the activist will pay for the expense involved in compiling information sought. Mr Mahanti had sought information from the college about the practice in refunding security deposit taken from its students. College replied:

“We wish to inform you that information required by you about security deposits is extremely large work. It may require one year’s time. It is not possible for us to complete this during our routine work, for which we have to appoint two additional employees on contract basis. Kindly let us know whether you are ready to pay for the expenditure towards this work for information required by you.”

In this connection it is worth noting the judgment of S.C. in the case of Institute of Chartered Accountants vs. Shaunak H. Satya reported in A.I.R. 2011 S.C. 3336, [RTIR IV (2011) 82 (SC)]

“One of the objects of democracy is to bring about transparency of information to contain corruption and bring about accountability. But achieving this object does not mean that other equally important public interests including efficient functioning of the Government and public authorities, optimum use of limited fiscal resources, preservation of confidentiality of sensitive information, etc. are to be ignored or sacrificed.“

•  When the Government announced that it will bring the bill in the Parliament to do away with the decision of CIC ruling that political parties are covered u/s 2(h) of the RTI Act (see BCAJ of July 2013) RTI Activists all over the country huddled together in a group and held the view that it is appropriate that political parties should be considered as “public authority”. Disregarding civil society’s strong objection as all political parties are in favour of exempting themselves from the RTI Act, Government tabled the bill in the Lok Sabha on 14-08-2013. Same reads as under:

BE it enacted by Parliament in the Sixty-fourth year of the Republic of India as follows: –

1. (1) This Act may be called the Right to Information (Amendment) Act, 2013 (2) It shall be deemed to have come into force on the 3rd day of June, 2013.

2. In section 2 of the Right to Information Act, 2005 (hereinafter referred to as the principal Act), in clause (h), the following Explanation shall be inserted, namely:-

‘Explanation- The expression “authority or body or institution of self-government established or constituted” by any law made by Parliament shall not include any association or body of individuals registered or recognised as political party under the Representation of the People Act, 1951.’

3. After section 31 of the principal Act, the following section shall be inserted, namely:-

“32. Notwithstanding anything contained in any judgment, decree or order of any court or commission, the provisions of this Act, as amended by the Right to Information (Amendment) Act, 2013, shall have effect and shall be deemed always to have effect, in the case of any association or body of individuals registered or recognised as political party under the Representation of the People Act, 1951 or any other law for the time being in force and the rules made or notifications issued thereunder.”

It is interesting to note that Prime Minister in his Independence Day speech on 15-08-2013 covered RTI as under:

“Through the Right to Information Act, the common man gets more information than ever before about the work of the government. This legislation is being used on a large scale at all levels. The Act frequently brings to light irregularities and corruption and opens the door for improvements. I am sure that the RTI will lead to further improvements in the way the government functions.”

Isn’t this a contradiction that in his speech he states “I am sure that the RTI will lead to further improvements in the way the government functions,” while by introducing the RTI Amendment Bill it excludes the way political parties function?

• In BCAJ of June 2013, it was reported that online RTI facility is created by the Government. The portal is a facility for Indian citizens to file RTI applications online and first appeals and also to make online payment of RTI fees. The facility was then made available only by a few ministries/ departments.

Now DoPT has extended facility of online filing of RTI Application and the first appeal to all ministries. Office Memorandum, dated 30-07-2013 reads as under:

Subject: Extension of RTI web portal for online filing of RTI application.

1. In continuation of this Department’s O.M. of even number dated 22-04-2013, it is intimated that the facility of RTI online web portal has been extended to 37 Ministries/ Departments of Government of India, so far (list enclosed). It is planned to extend this facility to all the remaining Ministries/Departments of Government of India by mid-August, 2013. This facility is presently not proposed to be extended for field offices/attached/subordinate offices.

2. It is again requested that training to all the CPIOs and First Appellate Authorities (FAAs) may be provided by the concerned Ministry/ Department, through the officials trained by DoPT/NIC. If required, further training can be provided by DoPT/NIC, on the request of the concerned Ministry/Department. User name/ password to all the CPIOs and FAAs are to be provided by RTI Nodal Officers of the concerned Ministry/Department. It is imperative that the RTI Nodal Officers update the details of the CPIOs/ FAAs in the system and issue user name and password to them at the earliest.

List of 37 ministries/departments include: –

1. DEPARTMENT OF ECONOMIC AFFAIRS

2. DEPARTMENT OF REVENUE

3. DEPARTMENT OF HEAVY INDUSTRY

4. MINISTRY OF SHIPPING

5. MINISTRY OF CORPORATE AFFAIRS

Full list & further details can be viewed on https:// rtionline.gov.in

• Mrs. Deepak Sandhu succeeds Shri Satyananda Mishra as Chief Information Commissioner at Central Information Commission.

The Comptroller and Auditor General (CAG) of India wants the Centre to grant to Right to information (RTI ) powers as it has been facing problems in securing details relevant to its audits of government finances and decision- making.

CAG Shashikant Sharma has written a letter of finance minister Arun Jaitley demanding that the federal auditor be given RTI powers to access information and a penal provision be included in the existing CAG’s Duties and Powers Act (DPC Act) to make it mandatory for furnishing of information in a time bound manner.

The federal auditor has issued a note on how information denial has been causing the problems.

The above Act received the assent of the President on the 9th May, 2014. The objectives of the Act are noted here under:

AN ACT to establish a mechanism to receive complaints relating to disclosure on any allegation of corruption or willful misuse of power or willful misuse of discretion against any public servant and to inquire or cause an inquiry into such disclosure and to provide adequate safeguards against victimisation of the person making such complaint and for matters connected therewith and incidental thereto.

Please note that in mentioning year 2011 in the title is not my or printing mistake. The fact is that the Bill was introduced in the Parliament in 2011. It took 4 years to finally become an Act. It may also be noted that though it is now an Act, it is not in operation because no rules and regulations are notified per section 27 of the Act. The said section reads:

” 27. The Competent Authority may, with previous approval of the Central Government or the State Government, as the case may be, by notification in the official Gazette, make regulations not inconsistent with the provisions of the Act and the rules made there under to provide for all matters for which provision is expedient for the purposes of giving effect to the provisions of this Act.”

It may also be noted that both the central and state Governments are authorised to make rules, The State Government is authorised to make regulations also.

The first appeal was filed on 13-08-2012. As the desired information was not provided by the CPIO vide Order dated 14-08-2012, First Appellate Authority held that the Order of the CPIO is modification to this extent that the information pertaining to the undersigned is already available in public domain at SI. No. 183 of the Civil List, 2012.

Decision
It is to be seen here that the appellant, vide his RTI Application dated 15-05-2012, sought some information from the respondents on 13 issues. During the hearing of the appeal it was submitted by Sh. Harinder Dhingra, appellant that he had not been provided the required information on any issues of his RTI application dated 15- 05-2012. However, it was rebutted by the respondents by stating that the required information, as sought for, was provided to the appellant vide their letter dated 06-07- 2012. It was further submitted by the appellant that his First Appeal was decided by the same officer, in respect of whom, the information was sought and it is against the Law.

Being aggrieved by the aforesaid response, First Appeal was filed by the appellant on 13-07-2012 before the FAA (Sh. Arun Kumar Addl, Commissioner (IGI) Airport, T-3 New Delhi 37), who vide his order dated 14-08-2012, upheld the decision of CPIO. Hence, a Second Appeal was preferred before this Commission.

On careful perusal of the record, it was revealed that the appellant sought some information in respect of Sh. Arun Kumar, Addl. Commission (ING), who decided the First Appeal. It has also been corroborated by the Sh. Arun Kumar, Asstt. Commissioner & CPIO, Sh. Dalveer Solanki, Asstt. Commissioner & CPIO, present before the Commission for making the submissions on behalf of the respondents, in the case.

It is a well settled position in the eyes of Law that there should be no judge of his own cause. This is one of the principles of natural justice and no one should violate the same.

Even the Hon. Judges of the High Court & Supreme Court take care of this Rule while deciding the cases. In the present case, it is now admitted fact that the person against whom the information was sought became a First Appellate Authority and decided his own case i.e. as to whether information in respect of himself is to be provided or not to the appellant.

Thus, the First Appellate Authority (Sh. Arun Kumar) violated the principles of natural justice. It is immaterial whether he has decided the case rightly or wrongly.

In view of the above, the order passed by FAA is not legally tenable and deserves to be quashed and set aside. Therefore, it is quashed accordingly. Thus, the case is remanded back to the respondents with a direction to put up the case to another FAA (to be nominated by the head of the department in case Sh. Arun Kumar is still acting as FAA ) for its disposal in accordance to the provisions of Law, within 30 days from the date of receipt of this order under intimation to this Commission.

(Harinder Dhingra vs. O/o the Addl. Commissioner of Custom, IGI Airport, Terminal 3, New Delhi, File No. CIC/ SS/A/2012/003238/KY decided on 02-04-2014. Citation: RTIR II (2014) 238 (CIC)

The BMC circular talks of how citizens who seek information under the RT I Act are often summoned to inspect documents even when the information they seek is not voluminous, or when they have not asked for an inspection. The circular asks BMC officials not to do so. Instead, they have been instructed to send the information directly to applicants, they should count the number of pages asked for, and charge the applicant for the information per page.

When the information sought is voluminous and an RT I applicant is called for an inspection, the circular says, applicants should not merely be dumped with the information, but the documents should be indexed and the pages numbered so that it is easy for applicants to find the information they are looking for.
(Also see in the issue of August 2015: page 94, Inspection of Documents.)

Grant for online filing of RTI Applications:
States can get financial aid from the Centre to set up facilities for the online filing of applications under the Right to Information (RT I) Act and other initiatives aimed at simplification and promotion of the transparency law. Various Administrative Training Institutes (AT Is) working under the states can also get grant of a maximum of Rs.4 lakh for setting up a helpline in regional languages for answering queries of the general public under the RT I Act, the Department of Personnel and Training (DoPT) announced on Thursday. “The facility of filing RTI applications and appeals online through the RT I online web portal has been launched and is being implemented in all the ministries or departments of the Government of India situated in New Delhi.

[CIC/SA/A/2015/000743 dated 24.07.2015; A. S. Berar vs. Dte of Education (East)]

In response to a RT I application, the Central Commission writes:

Neither the Act nor Rules state anywhere that the Public Authority should charge Rs.2 for writing a response or answering certain points under RT I, like ‘yes’ or ‘no’ or “information attached”. The Act does not provide for pricing the information or for collecting cost of searching the files or writing notes from them. Charging Rs.2 for the covering letter, or typing on paper, information collected from other files, is unheard of. These methods by the Public Authority will lead to delay or denial of the information.

The Commission also found that certain RT I sections are wasting paper in many ways. They write ‘letter is attached’, and that letter contains two sentences like ‘information sought is not available’. Such letter sent through three or four wings of the office reflect the office’s response and responsibility. At each stage, a file was built, letter was written after the file noting was approved and then posted.

In a response from the Ministry of Communications and IT Department of Posts on 18th October 2013 to a RTI petition filed by Mr. Subhash Chandra Agrawal, sent through the Ministry of Finance, it was stated: “As per costing exercises 2011-12, the operational cost of a postal order is Rs.37.45”. This means to realise IPO of Rs.6, the department has to spend Rs.37.45, besides wasting man-hours and stationery for writing the letter. The cost must have increased in 2015.

There are the commonsense points that PIO failed to notice.
(a) Postal order for less than Rs.10 is discontinued, thus asking for Rs.6 is meaningless.
(b) Even if IPO for Rs.10 is given to pay Rs.6, the public authority has to incur operational cost for IPO Rs.37.45 to transfer the cash.
(c) In writing a letter to appellant to demand Rs.10, the public authority has to spend at least one manhour.
(d) To post the letter, the IPO has to spend Rs.17 (for local speed post, Rs. 28 for non-local), or Rs. 22 (17 plus 5 Registered Post, for every next 20 grams or part of it Rs.5 additional), Rs. 27 (Registered Post-Acknowledgement Due).

Chief Information Commissioner Sri Satyananda Mishra in his order on 30.05.2012, in a second appeal filed by Subhash Chandra Agrawal cautioned the PIOs “It is not prudent to ask for Rs.2 per page in giving one page of information, because in the process, much more public money is lost in correspondence”. The IPOs for Rs.1, 2, 5, 7 were discontinued, but IPO of Rs. 10 is retained, perhaps for helping payment of Rs. 10 RT I fee. Because of non-availability of IPOs of smaller denominations, the applicants have to |pay more money than what is prescribed. For instance to pay Rs.12 copying charges, one has to take IPO of Rs.20.

In order to avoid all these complex and costly affairs, considering delay and wastage of money in collecting fee and charges, the Commission recommends to the Government of India, especially, the Department of Personnel & Training and the Department of Posts, to arrange exclusive stamps for RT I on the lines of Radio licensing stamps, which were used to collect the license fee decades ago. (a picture of those stamps is given below, * how these stamps were fixed in a license book for Radio can also be seen). It will be useful and easy to pay RT I fee or cost of copying if these RT I stamps are made in different denominations of Rs.2, 10, 50, and 100.

The Commission directs the respondent authority not to deny information on such trivial causes and not to waste public money in demanding small amounts. If charges to be paid are not worth the cost of typing and posting a letter etc., they should avoid it. The Commission directs the respondent authority to train the personnel in the RT I wing and sensitise them to understand the difference between fee, cost and value of letter or sheet containing information.

The Commission is also not convinced with the demand for refund of 6. Appellant is right in questioning the demand of a paltry amount as explained above, but Lt. Col. A. S. Berar should not have sought refund of Rs.6, because even in doing so, the Public Authority has to spend once again unnecessarily.

The respondent officer submitted that she would furnish the information after the remaining school responded to her forwarded letters. The Commission directs the respondent authority to furnish the information for the remaining 42 schools which might not take more than a page, without asking an IPO for Rs.2, within one month from the date of receipt of this order.

With the above observations, the appeal is disposed of. Mr. Subhash Chandra Agrawal commenting on the above judgement writes:

In a colorful pictorial CIC-verdict dated 24.07.2015 in appeal – number CIC/SA/A/2015/000743 wherein strongly reasoned recommendations citing RT I responses and earlier CIC-verdict are given for introducing RT I stamps in denominations of Rs.2, 10, 50 and 100 as the most convenient and enormous revenue-saving (of crores of rupees) mode for payment of RT I fees and other charges under the RT I Act.

CIC-verdict comes as a ready reckoner for concerned departments, namely Department of Posts and Department of Personnel & Training (DoPT) when it incorporates colorful photos of Radio and TV License fees stamps on lines of which RT I stamps can be issued.

With postal-orders below Rs.10 discontinued, there is no practical mode for making payments in fractions like Rs.2, 4, 6 and 8. High handling cost of Rs.37.45 to get RT I fees of Rs.10 is the other reason for suggesting RT I stamps.

Red-tapism and ‘jaisa hai chalne do’ bureaucratictheory has obstructed issuing of RT I stamps earlier also suggested in a full-bench CIC-verdict dated 27.08.2014 in appeal-number CIC/BS/C/2013/000149/LS when Department of Posts informed that Security Printing Presses at Nasik and Hyderabad expressed inability to print RT I stamps because of shortage of paper. At least now sincere and serious steps should be made for immediate introduction of RT I stamps.

In many cases, the word transparency is used as little more than a buzzword, a marketing opportunity. Whether it’s a corporate executive looking to win back disillusioned consumers and shareholders or a politician making whatever promises necessary to obtain public office, this term seems to have earned a bad rap over the years. And as a result, many have come to question the authenticity of those who use transparency as a part of their normal vernacular.

While observing the steady decay of this word would be a fascinating study in itself, there is another, more beneficial lesson to be learned in the wake of this linguistic disaster— particularly as it pertains to the way businesses are run.

This lesson can be learned, at least in part, by simply rediscovering what true transparency is—what does transparency actually mean? After that, one can utilize that understanding to discern the purpose of remaining transparent in the way s/he does business, as well as the often detrimental consequences of flouting that responsibility. Finally, with that new-found understanding, one can generate useful, ingenuous action plan for increasing transparency in his or her own business.

Transparency is one of those subtle things that can make a dramatic impact on a business. Yes, it will impact your bottom line. But that’s not the whole point. The point is that it helps everyone do business better—you, your clients, your team member. A culture of transparency is the way business ought to be done

RTI Clinic in September 2016: 2nd, 3rd, 4th Saturday, i.e. 10th, 17th, and 24th 11.00 to 13.00 at BCAS premises.

The Maharashtra government is proposing a series of RTI rules, which, if implemented, would sound the death knell of the Act. Earlier, during the tenure of the previous government, some RTI rules were made.

What are the controversial proposals?

One is that an applicant would not be given details that “involve fresh collection of non-available data” or “compilation of existing data”. The other is not to give information on queries that seek “justification”.

How will the proposals kill the Act?

Already, there are complaints that many public information officers (PIOs) do not part with information largely because they do not even keep the records properly with them. The proposals also take away the onus of giving reasons for not providing information from the PIOs. The government is also looking to set a limit on the information it can provide online.

PMO discloses salary of its staff; IAS officer Bhaskar Khulbe highest paid

The monthly salary of all officers working in the prime minister’s office (PMO) has been made public as part of suo motu disclosure under the Right to Information (RTI ) Act with senior Indian Administrative Service (IAS) officer Bhaskar Khulbe the highest paid at Rs.2.01 lakh.

Khulbe, who is secretary to the prime minister, gets a monthly remuneration of Rs.2.01 lakh, according to details of the salary as on 1 June 2016 put on the PMO website.

Update details of officers handling RTI matters: Govt to depts

All central government departments have been asked to ensure that updated details of officers responsible for handling RTI applications are available in the public domain.

One of the items to be disclosed proactively by the public authorities (or government departments) under the Right to Information (RTI) Act pertains to the names, designations and other particulars of the Central Public Information Officers (CPIO) and its updation on a yearly basis.

Army canteens most profitable retail chain in India, ahead of Future & Reliance Retail

Which is the most profitable Retail chain in India? Answer: The defence canteen stores. Its earnings exceeded those of all other chains, including Future Retail and Reliance Retail. The Canteen Stores Department (CSD), which, incidentally, is a not-for-profit organisation, earned Rs 236 crore during FY14-15, according to a Right to Information query. Comparatively, Avenue Supermart, which runs D’Mart stores, made a profit of Rs 211crore.

118 sexual harassment cases filed in BMC in 4 years, reveals RTI

In the last four years (2013-16) the Brihanmumbai Municipal Corporation (BMC) officials have registered 118 cases of sexual harassment in its offices, reveals a right to information (RTI ) response.

In a reply to the RTI filed by activist Anil Galgali requesting number of sexual harassment complaints filed in the civic administration and action taken, the civic body replied saying 21 sexual harassments cases were registered by its women employees till June this year.

According to this information, from 2013 to 2016, the average number of complaints registered with committee which works under Women Sexual Harassment Prevention chief and ‘Savitribai Phule Women Resource Centre each year should be 29. While in 2013 and 2014, 32 and 34 complaints were lodged respectively, there was marginal decline in 2015 as 31 cases were filed.

A five-judge Constitution bench of the Supreme Court will decide whether the apex court is liable to disclose information on judicial appointments under the Right to Information Act.

The bench will hear a case filed by its administrative wing through the Central Public Information Officer.

A three-judge bench led by Justice Ranjan Gogoi referred the question to the country’s top court, following a case filed by the CPIO of the Supreme Court against an earlier Delhi High Court ruling.

The Delhi High Court in 2014 upheld a similar order by the Central Information Commission and ruled that the Supreme Court is not exempt from disclosing information under the RTI . The high court thus allowed the public to seek information related to appointment of judges, and number of cases pending and disposed off in the apex court through RTI applications.

The Delhi High Court directed the Supreme Court registry to maintain all records, even judgments that had been reserved, to ensure that all information is available under RTI .

In 2011, the CIC had given a similar direction to the Supreme Court to maintain its records regarding all cases in such a way that information can be made available to RTI applicants. The Supreme Court has however, refused to give any directions with respect to divulging any details under the RTI during hearings of several public interest litigations.

The CIC gave its order in 2011 based on the apex court’s 2001 ruling in the case titled Anil Rai vs. State of Bihar. This judgement has been cited in most cases pleading for transparency in judiciary’s functioning on account of observations made on maintaining confidence of litigants. Several drafts of the Memorandum of Procedure prepared by the government for appointment of judges exclude appointments from the ambit of the RTI .

GM mustard trials: CIC asks govt to reveal bio-safety data

The Central Information Commission (CIC) has directed the environment ministry to reveal safety data regarding trials of genetically modified (GM) mustard without further delay, noting that “any attempt to postpone or delay the disclosure will block the public discussion” on the controversial issue.

In April, the information panel had pulled up the Union ministry of environment, forest and climate change (MoEFCC) over its lack of transparency on trials of GM crops and directed it to make public all information, including bio-safety data, related to the field trials of the GM mustard crop before 30 April.

The CIC also directed the ministry to put in the public domain bio-safety data pertaining to all other GMOs (genetically modified organisms) in the pipeline.

The CIC’s directions came on an application by environment activist Kavitha Kuruganti, who sought information regarding field trials of GM mustard from the MoEFCC, but was denied.

“Instead of furnishing information as ordered by 30 April 2016, the public authority requested for two more months. The public authority did not honour its own commitment to furnish in that time and on 28 June they sought another extension, this time for 90 days. To furnish a copy of a report or to place the agenda and minutes of the GEAC (Genetic Engineering Approval Committee) meeting, they need no time at all. They are just asking for time though they do not require it,” information commissioner M. Sridhar Acharyulu noted in his order.

He also held that there appears “to be no seriousness in seeking extension” and the environment ministry is “routinely asking for extension without specifying the period”.

In his order, Acharyulu said that the information sought is of “high public importance, concerning public health, and it should have been in (the) public domain”.

“Public authority is attempting to keep vital information out of public discussion. It amounts to prevention of constitutionally guaranteed freedom of speech and expression of the appellant, who are interested in discussing the pros and cons of GMOrelated issues of GM mustard, which if permitted would cause serious impact on the public health of consumers on a large scale,” he said.