Year: 2010

Different High Courts in a number of cases have decided
whether a particular body or institution is a Public Authority or not u/s.2(h)
of the Act. Hereunder are listed some of the decisions :

Textile Co-operative Bank is provided aid or assistance by
the State Government for the benefit of the weavers, who may be members of the
Bank in respect of loans availed by them. On these facts, it could not be held
that the said aid or assistance is provided to the Bank. Accordingly, the Bank
is not a non-Government organisation substantially financed by the State
Government. Hence, it is not covered under clause (d)(ii) of S. 2(h), and is not
a Public Authority. [Textile Co-op. Bank Ltd. v. the Karnataka Information
Commission & Others,
W.P. No. 20004 of 2007 (GM-RES) and C.W.P. No. 18599 of 2007 (GM-RES) decided on
17-2-2010, (2010 (1) ID 521)]

There is no direct or indirect control by the State
Government over the affairs of Dr. Panjabrao Deshmukh Urban Co-operative Bank
Ltd. The control was not deep or pervasive.

Hence the said Bank was not covered within the meaning of S.
2(h) of the RTI Act. [AIR 2009 Bombay 75, (2009 (2) ID 156)]

The Court held “A perusal of the definition of ‘public
authority’ shows that ‘public authority’ would mean any authority or body or
institution established or constituted apart from other things by the
Notification issued by an order made by the appropriate Government. It is to
include even any body owned, controlled or substantially financed or
non-Government Organisation substantially financed directly or indirectly by the
funds provided by the appropriate Government. It is undisputed that the
petitioners are receiving substantially grant-in-aid from the Chandigarh
Administration. Once a body is substantially financed by the Government, the
functions of such body partake the character of ‘public authority’. The
petitioner has claimed that they are getting only 45% grant-in-aid after
admitting that initially the grant-in-aid paid to them was to the extent of 95%.
If on account of policy of the Government the grant-in-aid to the extent of 95%
which was given initially allowing the petitioner to build up its own
infrastructure and reducing the grant-in-aid later would not result into an
argument that no substantial grant-in-aid is received and therefore it could not
be regarded as ‘public authority’. Therefore, the Court did not find any
substance in the stand taken by the petitioner that it is not a ‘public
authority’ “

[D.A.V. College Trust & Management Society & Ors. v.
Director of Public Instruction & Ors., AIR 2008 (Pb& Hry.) 117; (2008 (2) ID
382)]

The question for consideration was whether the petitioner,
which is a Girls High School, recognised and receiving grant-in-aid from the
State Government, is a ‘public authority’ as defined u/s.2(h) of the RTI Act.

The Court held as follows : “In my opinion, whenever there is
even an iota of nexus regarding control and finance of public authority over the
activity of a private body or institution or an organisation, etc. the same
would fall under the provisions of S. 2(h) of the Act. The provisions of the Act
have to be read in consonance and in harmony with its objects and reasons given
in the Act which have to be given widest meaning in order to ensure that
unscrupulous persons do not get benefits of concealment of their illegal
activities or illegal acts by being exempted under the Act and are able to hide
everything from the public. The working of any such organisation or institution
of any such private body owned or under control of public authority shall be
amenable to the Right to Information Act. The petitioner being an institution
recognised under the provisions of the U.P. High School and Intermediate
Education Act, 1929 and receiving grant-in-aid from the State Government is
therefore, covered under the aforesaid Act.”

[Dhara Singh Girls High School Ghaziabad v. State of Utta
Pradesh & Ors., AIR 2008 Allahabad 92; (2008 (2) ID 179)]

The Court was considering the case of Southern Electricity
Supply Company of Orissa Ltd. (the Company) which is a subsidiary of Grid
Organisation of Orissa Ltd. (GRIDCO) which is a wholly-owned Government Company.
Submission of the Company was that it is a public limited company and hence it
is not a ‘public authority’ as defined in S. 2(h) of the RTI Act. The Court held
that u/s.2(h) even non-Government organisation substantially financed directly
or indirectly by the funds provided by the appropriate Government would come
within the ambit of Public Authority. Admittedly the petitioner company is a
subsidiary of GRIDCO, wholly-owned Government Company, it is governed by the
different rules and regulations framed by the State Government, the rate of
tariff is regulated by the Orissa Electricity Reforms Act. Moreover, this
distribution company, and three similar other companies, are discharging
governmental function of distribution and supply of electricity to the people of
the State, which is an essential public duty.

All these go to show that the State Government has a deep and
pervasive control over the petitioner company and such control is not mere
regulatory. In view of the above, the Court came to the conclusion that the said
company falls within the definition of Public Authority as defined u/s. 2(h) of
the RTI Act. [Southern Electricity Supply Company of Orissa Ltd v. State of
Orissa and Others, W.P.(C) No. 8698 of 2006 decided on 9-12-2009; (2010 (1)
ID 524)]

The writ petitioners, The Institute of Chartered Accountants of India (ICAI), claim to be aggrieved by an order of the Central Information Commission (CIC), dated 23-12-2008 to the extent that the Commission directed disclosure of the applicant complainant’s answer sheet to the information applicant. The applicant had elicited various kinds of information, including a copy of the answer sheet of the examination attempted by him. The Assistant Solicitor General who appeared on behalf of ICAI contended that the question as to the right to information and the right of the class of individuals who attempt examinations to access their answer sheets is squarely covered by the rulings of the Supreme Court in Secretary, West Bengal Council for Higher Secondary Education v. Ayan Das, [2007 (8) SCC 242] and President, Board of Secondary Education, Orissa & Anr. v. D. Suvankar & Anr., [2007 (1) SCC 603].

The argument was that the interpretation placed by the Supreme Court unalterably fixed the character of the right, in the sense that the declarations exclude the right of a candidate participating in the examination process to access information about the examination process by demanding copies of answer sheets. The subsidiary argument made by the ASG was that the right to seek answer sheets, if at all, could be claimed as part of Article 19(1)(a) of the Constitution and since the Supreme Court excluded that possibility, having regard to the objects of the RTI Act, i.e., effectuation of provisions of the right to freedom of expression and information, the possibility of accessing such class of information stands excluded from the right to freedom of expression.

The Court stated that under the scheme of the enactment, all classes of information except those which are explicitly exempted from disclosure u/s.8 have to be revealed. The exemption regime is itself broad and covers various diverse matters, including commercial information, trade secrets and so on. The information authorities set up under the enactment are empowered by S. 10 to sever such information which should not be disclosed from such class of information. The Court then stated as under : “The argument of the petitioner that since the Supreme Court declared the law in such matters, and that candidates who seek copies of answer sheet cannot claim it as a matter of right, is unpersuasive.”

The Supreme Court’s decisions were similar in both the instances; in Ayan Das case and D. Suvankar case, the context was wide directions by the High Court, requiring revaluation/re-verification (in the Suvankar case) and direction to reassess through another examiner in Ayan Das’s case. There is no discussion or mention of the RTI Act. Concededly, the judgments were not examining information application under the RTI Act. Yet, a close scrutiny of the facts mentioned in both the judgments reveals that the claims were not premised on any of the provisions of the enactment. Apparently, they were in the context of writ petitions filed before the High Court. The judgments, therefore, have to be read in their terms, and in the contextual setting. There is no gain saying that the judgments of the Supreme Court on an issue constitute law declared under Article 141 of the Constitution. Yet, the judgments are in the context of what is declared and what is not declared.

The ‘unarticulated’ argument of no right under Article 19(1)(a) by the learned ASG cannot, therefore, be accepted. Doing so would mean that this Court would be reading into the two judgments on the intention to overbear the provisions of the RTI Act; a result too startling to accept. As regards the second contention that since the Supreme Court held that there is no right to claim disclosure of answer sheets or copies, and the same is not part of the Right to Freedom of Expression and, therefore, implicitly excluded from the RTI Act; this contention too cannot be accepted.

The mere fact that the statement of objects of, or the long title to the RTI Act mentions that it is a practical regime of the right to information for citizens, would not mean that a cribbed interpretation has to be placed on its provisions, on the same notion of implicit exclusion of that which would legitimately fall within Article 19(1)(a). No rule of interpretation or judgment of the Supreme Court was discussed or relied on the point that the ruling in Suvankar’s case excluded the right to access answer sheets, which would otherwise fall within the expression and, therefore, would fall within the purview of the RTI Act.

The interpretation canvassed would lead to startling consequences when in the absence of enacted law under Article 19(2), the Court would be legislating, as it were, without the possibility of such exclusion being tested in Courts. A salutary rule of interpreting the Constitution is that fundamental rights should be construed broadly, to enable citizens to enjoy them [Ahmedabad St. Xavier’s College Society v. State of Gujarat, (1974) (1) SCC 717]; Dr. Pradeep Jain v. Union of India, (1984) (3) SCC 654]. In any event, the Act confers positive rights which can be enforced through its mechanism.

This Court should be extremely slow in interpreting such rights, dealing with personal liberties and freedoms on the basis of some inarticulate premise of a judgment. For the above reasons the Delhi High Court dismissed the writ petition and held the same to be misconceived.

[ICAI v. Central Information Commission & Anr., W.P. (C) 8529/2009 decided on 30-4-2009; (2010 (1) ID 587)]

                                                         PART B : THE RTI ACT 2005

5th CIC Annual Convention, 2010:

Central Information Commission held a 5th Annual Convention, 2010 on 13th and 14th September 2010 at DRDO Bhavan, New Delhi. I was invited by the Commission to attend the same and have actively participated there. Sessions were very well conducted and provided a tlot of information on the development of RTI in India and the road ahead. Theme of the Convention was: ‘RTI: Challenges and Opportunities’. In coming few issues, I shall provide details thereof. To start with, I reproduce the keynote remarks of Shri Gopalkrishna Gandhi at the inaugural session, some being the highlight of the Convention:

After the IPC, the FIR and PIL, the best known three-letter acronym in Indian Governance is RTI. I think it has overtaken the others in frequency of use outside the agencies of law enforcement. And it engenders as much awe as IPC, FIR and PIL. It also generates, as PIL does, but even more so, two reactions : The first is admiration amongst its users or potential users. Ki aisaa ek baraa hathiyaar hamaare haathon mein aayaa hai.

The second is apprehension amongst those it targets or is likely to target. Ki humen dhake huaa pardaa ab khul gayaa hai. The first reaction, the reaction of admiration, is a good and wholesome reaction. Kyuunki qaanuun barhiyaa hai, bahaadur hai, har pradesh mein laguu ho gayaa hai.

Andolanon ko logon kaa samarthan tab hi haasil hotaa hai jab logon ko us andolan mein tuk, tark, aur tathya dikhe. Varnaa nahin. Is qanuun ne hazaaron ke dil ujaagar kiye hain. Is qanuun ne kaiyon ko insaaf dilaayaa hai, kai ghaflaton, ghalatiyon, ghus aur ghor anyaayon ka is qanun ne muquabilaa kiyaa hai. Lekin phir bhii RTI ko aaj bhii ek smarthan kii, support aur backing ki zaruurat hai.

Aaj bhi RTI ke qaanuun banjaane ke baad bhi usko yah kyuun chaahiye ? Vajah yah hai : Yah qanuun kaiyon ke kaanon tak pahunchaa hai, kai hazaaron, lakhon kaanon tak pahunchaa hai, lekin phir bhi kai auron — karoron — ke kaanon ke upar se sarsaraataa huaa pravesh kar gayaa hai daftaron mein. Is baat mein vaise koi kharaabi nahiin. Daftaron ke binaa koi qanuun nahin chaltaa. Lekin daftaron kaa ek ajib tariqaa hotaa hai. Ve qanuunon ko apne kuuchon mein mehmaan banaa dete hain.

Daftaron ki koshish hoti hai ki qanuunon ko kam se kam taqliif ho, ziyaada se ziyaada aaraam miley. Lekin RTI aaraam ke liye nahiin banaa hai. Vah kaam ke liye banaa hai. Usko mehnat chaahiye, raahat nahiin. Daftaron ko RTI se darnaa nahin chaahiye, us se khisakne kii koshish nahiin karnii chaahiye. Mein sarkaari prabandhakon ko kahungaa ki RTI se ek ho jaayiye, usko apnaayiye, uski madad se haqiqat ko pahchaaniye, usko durust kariye. Jab bhii RTI ki tahat public se koi savaal aataa hai sarkaari daftaron ko uskaa svaagat karnaa chaahiye aur uskaa puraa, sahi, aur sachchaa javaab buland aavaaz mein denaa chaahiye.

It is not just RTI’s great good fortune, but India’s that a person of the veracity of Wajahat Habibullah has been India’s first Chief Information Commissioner. He has set RTI on track, set the RTI-Government equation on track. The Chief Information Commissioners in the States have also been working extremely hard, often with inadequate infrastructure, often as single Commissioners, and often without that continual backing from the State Administration that is required. I would like to congratulate all of them on this occasion for what they have achieved. They, with the Lok Ayuktas, and the State Commissions for Human Rights are Institutions of Conscience, They are, what may be called, the Zameer-e -Hind. Pradeshon mein jo commissioner aur PIOs bane hain, unko Rajya sarkaaron se saari suvidhayen aur sammaan milne chaahiye. RTI ki adhikaariyon ko iske liye intezaar karnaa pare yah sarkaari chhabi ke liye thiik nahiin.

RTI mein gopaniyataa kaa ek aham savaal hai. Is se sarkaaron ko kuchh bechainii hoti hai. RTI Act mein gopaniyataa kii surakshaa hui hai. Honi chahiye. Jaise hum hain, vaisa hi desh hai. Humen hum sab ko — kuchh maamlon mein gopaniyataa kii zuruurat hotii hai. Kuchh rishte aise hote hain, jahaan gopaniyataa zuruuri hoti hai. Sarkar aur desh ke rishton mein bhii kuchh aise lamhe aate hain, jahaan gopaniiyataa aavashyak ban jaatii hai. Vaisii gopaniyata kuchh nazaakaton kii hifaazat ke liye hotii hain. Khulepan— transparency — ka yah matlab nahiin ki hum aisii nazaakaton ko bhuul jaayen.

I would certainly include in these the confidential communications between a head of State and head of Government, both at the Centre and in the State. At the same time I would say that whenever an occasion arises when a head of State and head of Government share thoughts on matters of public importance, they must simultaneously take the public into confidence and place in the public domain, an operative summary of their discussions or correspondence to obviate speculation.

File notings kii baat aatii hai. Is par bhii bechainiyaan rahiin hain aur Chief Information Commissioner sahib kii is par aham ruling bhii aayii hai. Main sirf itnaa kah duun ki afsaron or saare note-writers ko notings likhte vaqt muddon par sochnaa chaahiye, haqiqat ko dhyaan mein rakhnaa chaahiye, qanuun ko dhyaan mein rakhnaa chahiye. Notes yah soch kar na likhiye ki ‘kahiin aage jaa kar RTI vaalii taqlioif na ho jaaye’. Aur na hi aisii notes likhne kii koshish kiijiye jis se ki RTI ke taramandal mein aap ek chamaktaa sitaaraa ban jaaen.

The RTI Act should not make note files monosyllabic or laconic, nor should it encourage prolixity in the hope of ‘RTI immortality’. Bureaucracy RTI ke maamle mein apne puraane mindset se abhi baahar aanaa siikh rahii hai. Sadiyon se afsaron ne thakur-suhaati sunii hai, maai-baapii, hukum-huzuurii dekhii hai. Unhe bataayaa gayaa hai ki savaal afsar baithe hue karegaa, javaab uske samne kharaa huaa insaan degaa. Aaj jab afsar RTI ke learner hai, aur RTI shikshak, to unko yah mat kahiye ‘chal utth, khare ho’. Yaa ‘chal utth, sar par khare ho’. Afsar aaj ek baraa pahluu siikh rahaa hai, vishvasaniya aur transparent RTI-compliant shaasan mein, siirshaasan mein nahiin. Gandhiji in Decemeber 30, 1926 ke din ‘Young India’ mein likhaa thaa: “Those who seek justice must come with clean hands”.

‘Clean hands’ means that those using the Act must use it responsibly. The architects and engineers and the persons running the Act should make users of the Act realise the difference between stressing and straining a point, between portraying and exaggerating a situation and between emphasising and magnifying a problem. RTI adherents and users should encourage serious questions and discourage frivolous or malicious ones. I have heard of persons who have been unsuccessful in interviews promptly doing an RTI to challenge the procedures of the appointing authorities, thereby paralysing the functioning of those bodies. A good instrument can be misused.

RTI’s protectors must not let that happen. The RTI Act is a potential remedy for discontent. It should not become a weapon in the hands of malcontents. Discontent in India is a reality. Malcontents in India are no less so. A strict and disciplinarian head-of-office can be bullied by RTI threats. This bullying can be lethal if it is based on deliberate distortions of facts and if it is based on half truths. Even a ‘truth’, a ‘fact’, can sometimes be misused. William Blake
famously said : ‘A truth told with bad intent beats all the lies you can invent’. RTI protectors and NGOs must be mindful of that. RTI should not be used to hurt anyone or anything, except opaqueness. RTI Act afsaron ko haqiqat kii dhuul se vaaqif karne ko hai, uski naak dhuul mein ragadne ke liye nahiin.

Today, RTI is facing probably its greatest challenge. So effective has it become, so rich in results, so amazingly potent that those with something to hide are afraid of it. Fear is a cousin of panic. And so we hear of those who have had the courage to use RTI against the powerful and the entrenched have had to pay dearly for their courage, even with their lives.

This is intolerable. If it is true that the unnatural death of persons who have filed RTI applications is connected with their RTI action, the law-enforcers have to visit the guilty with the speed of light and, under due process, bring the guilty demonstrably to account. And politics should be allowed to play no role in the proceedings. It is as imperative to keep politics out of RTI as it is to keep it out of the judiciary.

In fact, even more so because over the decades the judiciary has built up systems to safeguard its space; RTI establishments are yet to do so. Those who have died in the course of RTI work are martyrs to more than the Right to Information; they are martyrs to transparent and good governance and the rule of law. They are martyrs to the cause of a civilised and liberal rule of law. RTI Act ne logon ko aavaaz dilaayii hai, divaaron ko sunne par majbuur kiyaa hai. Surdas ke shabdon mein: Jaake kripa, Pangu giri langhai, Andhau ko sab kachhu darisaaii, Bahirau sune, guung puni bolai, Ranka chale sir chhatra dharaayii.
    
                                            

                                               PART C:  Informatton on & Around

    SIC’s validity under cloud:

S. 15 of the RTI Act provides that every State Government shall by Notification in the Official Gazette constitute a body to be known as State Information Commission to exercise powers conferred, etc. under the RTI Act. Even after 5 years since the RTI Act, 2005 came into existence, the Maharashtra State Government has not issued such Notification. Technically, all the orders by the Information Commission will be illegal and have no force of law. What a state of affairs !

    SRA biggest job attraction:

The Slum Rehabilitation Authority, building proposal, vigilance and development planning departments are the most lucrative, hence the most sought-after postings in the Brihanmumbai Municipal Corporation as revealed under the RTI application. According to the information sought by RTI activist Anil Galgali, BMC officials, chiefly engineers are asking for prime postings in these four departments of the Corporation. Further, in order to get postings in these departments, these officials have approached various politicians seeking letters of recommendation from them. According to the RTI reply, the officials seeking the postings have not only got recommendation from state politicians, but also Union Ministers. The SRA, building proposal, vigilance and development planning departments deal with builders who are ready to give big money so that their proposals are passed by the BMC. Further, many transactions take place under the table in these departments.

    SIC’s orders being challenged by the Government:

In a first case of its kind after the landmark Right to Information Act came into force five years ago, the Congress-led Democratic Front Government has refused to implement Chief Information Commissioner Suresh Joshi’s order to provide information to controversial bureaucrat V. M. Lal. Lal had filed an application under RTI before the GAD Public Information officer. He sought specific copies of the notings made by the concerned Department on the ongoing probe against him. A probe was conducted against him by veteran bureaucrat Asoke Basak. Lal’s contention was that Basak had given him a clean chit in all the eight charges. He alleged that on the basis of certain notings in his file, GAD did not agree with the findings of Basak and ultimately it recommended a punishment to him. In his application Lal had asked for all relevant notings and documents. The PIO took the view that since no final decision was taken the entire process remains incomplete. According to provisions of the RTI Act it was not binding on the PIO to provide the information sought. We have received CIC Suresh Joshi’s order to provide information to Lal. In our opinion the order is bad in law. If we implement the order, it will have an adverse impact on the administration. “As per the opinion expressed by the law and judiciary department, now we are moving the High Court against the CIC order,” said a senior official.

    Mhada’s duties:

The Maharashtra Housing and Area Development Authority (Mhada) is duty-bound under the law to give the owner of a repaired building an opportunity to claim a compensation if the value of the debris (mostly Burma teak) turns out to be more than the cost of repairs. RTI query revealed that the relevant rule providing for this point is mostly not observed. There are around 16,000 buildings in Ctentral Mumbai that are more than 70 years old and in dire need of repairs. However, landlords are generally not interested in spending any money on them. The tenants of such buildings pay Mhada a cess in lieu of which it undertakes repairs through its repairs board. Many of these buildings were built from stone/bricks and wood. The wood is largely in good condition and fetches a very high price in the market. Going by the law, the wood becomes the property of the repairs board. However, after repair it is supposed to give a formal notice to the landlord that he may submit a claim for compensation if he feels that the cost of the wood is more than the cost of repair. RTI activist Milind Mulay found out that though 1,740 buildings were repaired using the cess and MLA/MLC fund between April 1, 2006 and November 14, 2009, not a single landlord was given this notice. It is surprising how senior officers who sign the file before releasing payment to the contractor do not notice the violation of their own rule.

    `26 lakh vanished:

Nearly `26 lakh collected by the BEST to provide relief after 1971 Bangladesh war seems to have vanished into thin air. The BEST had collected the amount from bus commuters as the Bangladesh Refugee Relief Surcharge from 1971-73 and the Scarcity Relief Surcharge in 1973-74. However, neither the BEST nor the Transport Commissioner’s office where it claims to have deposited the money has any information on how the money was spent. This was revealed when RTI activist Manoranjan Roy filed an application asking the BEST how much money was collected as surcharge and where it wasspent. The BEST revealed that it had collected `13.85 lakh under the head of ‘Bangladesh Refugee Relief Surcharge’ from December 1971 to March 1973 and a sum of `12.94 lakh under the head of ‘Scarcity Relief Surcharge’ from April 1973 to March 1974. However, the BEST said that it had deposited the money with the transport department as the sum is collected on behalf of the Government of Maharashtra and was being remitted to the office of the Transport Commissioner every month. When Roy filed an RTI with the Transport Commis-sioner’s office, the department admitted that such surcharges imposed by the BEST were deposited with it, but said it had no record of the `26 lakh. Roy has now filed a PIL, demanding an inquiry into the management of funds by BEST.

    `45 crore vanished:

Bet you did not know this — every time you pay for your local train ticket fare you end up paying a fraction of the amount as ‘safety charges’. Central Railway (CR) collected `45 crore as safety charges during 2008-2009. However, they have no idea as to how this money has been utilised. The safety charge is collected to provide safety to passengers and other amenities. It includes construction of flyovers at unmanned railway crossings, boundary walls, purchasing safety devices for track maintenance, track replacements, putting posters on railway-crossing gate and signalling equipment. Kalbadevi-based social activist, Pravin Tripathi, had filed a Right to Information application seeking details about the safety charges collection of 2008-2009. CR replied to him saying: “The details of used-up money collected as safety charges `45,45,73,426 (for 2008-2009) is not available in this office, hence cannot be provided.” “Railways should have provided me details about the usage of safety charges collected but they failed to. I think it’s because the amount has not been used for passengers and they should, therefore, return this amount to passengers,” Tripathi told MID-DAY. “If a year’s collection works out to `45 crore, for 10 years it may add up to around `450 crore. The railways should furnish details about our money, there is no passenger safety at stations, no ambulance, no first-aid box at stations”, said Tripathi. Do you know that approximately 37 lakh people commute on the Central Railway every day?

    Private schools now fall within RTI Act ambit:

The CIC has ruled that private educational institutions— whether government-funded bodies, and issues related to their management and regulation come under the ambit of the Right to Information.

    File notings being shielded:

Bureaucrats manage to hide file notings on all files and petitions processed at Andhra Pradesh State Secretariat. They use stick-notes (post-its) on all files in the State Secretariat as these can be removed in case of an RTI query, leaving no trace of favoritism. There’s colour coding too. A particular colour means a particular minister is perusing the file (with a vested interest). Also, ink colour indicates the sign of approval or otherwise, etc. Any noting in black usually means negative, blue means neutral, green means clear and magenta means relaxation of rules!