PART A DECISION OF SUPREME COURT
u Supreme
Court slams centre for keeping names of applicants for Information
Commissioners’ post secret; asks it to make them public
The Supreme Court (SC) has directed the Centre to publish names,
criteria and other details of search committee’s work so far for appointments
to the Central Information Commission, under the Right to Information (RTI)
Act.
The case pertained to the inordinate delay in filling up the vacancies
of crucial posts of Central Information Commissioners (CICs) and Information
Commissioners (ICs), the SC order is a big boost for activists, who have
campaigned tirelessly for transparency in selection of information
commissioners.
The SC directive follows an affidavit submitted by the central
government in court today. The Government had earlier committed to decide on
vacancies even before a public interest litigation (PIL) for appointment of
Commissioners was filed. It told the SC today that it had received 65
applications for the post of the Chief Central Information Commissioner and 280
applications for the four posts of Information Commissioners. The affidavit
states that the government has shortlisted names for the post of CIC. However,
after the latest SC directive, the government will have to publish these names
on its website, before it selects the chief information commissioner.
As for the eight other States that were also asked to file an affidavit,
the Telangana government has said that it was busy with elections so the SC has
given it two more weeks to file its affidavit. The petitioners bought it to the
notice of the court that there were 10,000 second appeals pending with this
State Commission. The Odisha government’s affidavit states that a selection
committee has been formed to fill up four vacancies for ICs.
It may be recalled that a writ petition was filed by activists Anjali
Bharadwaj, Amrita Johri and Commodore Lokesh Batra (retd). The reason for this
petition was that “under the Right to Information (RTI) Act, the Central
Information Commission (CIC) and State Information Commissions (SIC) have been
created as statutory bodies to decide appeals and complaints against public
authorities, for non-compliance with the RTI law. The proper functioning of
these institutions is essential for effective implementation of the RTI Act.
The RTI law provides that the CIC must consist of a Chief Information
Commissioner and ten information commissioners.”
In an earlier hearing on 27th July, 2018, the SC had directed
the central government to file an affidavit stating how many posts it proposed
to fill, based on the advertisement issued, the time schedule for filling the
posts, why appointments were not made subsequent to a 2016 advertisement and
measures to ensure transparency in the process of appointment – all this was
highlighted in the PIL. In addition, eight state governments, who are
respondents in the case, were also directed to file affidavits enumerating the
steps they are taking for filling up vacancies, the time frame within which
these will be filled and the procedure of appointment.
Incidentally, Chief
Information Commissioner Radha Krishna Mathur, and three Central Information
Commissioners – Prof. M Sridhar Acharyulu, Yashovardhan Azad and A
Bhattacharyya, retired in the last week of November 2018. That makes for eight
vacancies in the Commission.
Besides the legal intervention sought, former Central Information
Commissioner, Prof Acharyulu too kept up the pressure on government by writing
a letter to the President of India, Ram Nath Kovind, last week regarding the
inordinate delay in appointing information commissioners.
Prof. Acharyulu in his letter stated: “…the Government of India should have
completed process of appointing the Chief Information Commissioner before the
retirement of Shri Radha Krishna Mathur, to be ready to take over the
administration of the Commission without any gap, because the RTI Act has not
envisaged any vacancy in that high position at any point of the time. The
Commission has experienced absence of administration for several months as the
Government did not appoint Chief Information Commissioner, three years ago,
after retirement of the then Chief. Unfortunately now also that position is
left vacant since 22nd November, 2018. Similarly leaving seven
positions of CICs also will lead to increase in the pendency of second
appeals/complaints. The delay in information amounts to denial of information
and delay in information justice also means its denial.”
During the hearing on the 3rd December, the petitioners had
pointed out that at present there were vacancies in the Central Information
Commission, including that of the Chief and the backlog of appeals/complaints
had risen to more than 26,000. They also pointed out that the advertisement
issued by the central government for the posts of Information Commissioners and
the Chief Information Commissioner did not specify the salary and tenure, even
though these are specifically defined in the RTI Act & therefore, the
advertisements were not in keeping with the RTI law. All previous
advertisements for the posts specified the salary and tenure. Upon being
questioned about the anomaly in the advertisements, the counsel for the central
government stated that the government was intending to amend the RTI Act.
Prof Acharyulu, former Central Information Commissioner has appealed to
President of India for appointment of eminent persons from fields other than
Administration to the CIC. His letter says:
“I would like produce the text of Section 12(5) of RTI Act 2005 for
ready reference, at this juncture:
The Chief Information Commissioner and Information Commissioners shall
be persons of eminence in public life with wide knowledge and experience in
law, science and technology, social service, management, journalism, mass media
or administration and governance.”
“In this context, as a person who worked as Central Information
Commissioner for five years till recently, I request your Excellency to
consider following suggestions:
1. As the Chief Information
Commissioner in all these 13 years was selected from the field of
Administration only, at least, this time an eminent person from the field other
than Administration may be selected; and if for any reason, the Government
decides to select a retired bureaucrat once again, it should ensure that he had
credentials of integrity, commitment towards transparency and has never
supported or promoted any kind of secrecy in administration. The people have a
right to know this kind of background of the Chief and other Commissioners. The
Government should also commit itself to appoint next Chief Information
Commission from other than bureaucrats.
2. As mandated by section 12(5) of the RTI Act,
the Government of India has a statutory duty to select at least one person of
eminence each in public life with wide knowledge and experience from the fields
of (1) law, (2) science, (3) technology, (4) social service, (5) management,
(6) journalism, and (7) mass media. As the Government has already appointed
three eminent persons with experience in administration, who are working now,
the Committee, as a principle, should not consider the persons from this field
for this time.
3. Whenever
the Selection Committee convenes, from now onwards, it shall select one eminent
person of experience each from these fields necessarily for making the Central
Information Commission representative of multiple fields of public activity and
truly democratic. With experts from various fields, there will be no scope for
bureaucratic majority or domination in its administration besides accommodating
different view-points. If the Government selects more number of former
bureaucrats for these posts, it will in breach of letter and spirit of
transparency law and more particularly that of Section 12(5) of RTI Act, which
may not stand the scrutiny by the Judiciary.
4. The Selection Committee should also ensure
that the new Commissioners appointed shall have the complete independence with
regard to the term, status and salary as provided by the RTI Act. Their term,
status and salary shall not be ‘as
prescribed’ by the Central Government’ as contemplated by the present
Government in the proposed Amendment to RTI Act.
5. The
Government shall ensure that it will not interfere in the functioning of
Central Information Commission and also to insulate the office of Chief
Information Commissioner or individual commissioner from direct or indirect
pressures or interferences from any of its offices such as PMO or the Ministry
of DoPT.
6. The
Government shall not introduce the RTI (Amendment) Bill, 2018 and shelve it
permanently, in the interest of transparency of administration and good
governance.
7. Hereafter, the Government shall fill every vacancy promptly so that
a new Chief/Commissioner takes over the charge from the retiring Commissioner
without any gap.
(Source:https://www.moneylife.in/article/sc-slams-centre-for-keeping-names-of-applicants-for-information-commissioners-post-secret-asks-it-to-make-them-public/55914.html
)
PART B RTI ACT, 2005
u
Maharashtra facilitates inspection of files. Here is how to do file inspection
under RTI
Recently, the Maharashtra government took an
important step towards transparency through a government resolution (GR) which
directs every public authority in the state to provide two hours, once a week,
for citizens to walk into the government offices, for inspection of files u/s.
4 of the RTI Act. However, even though citizens can demand to see documents
under this provision, not many know how to go about it.
In order that such a useful and
citizen-friendly initiative is not lost due to citizens’ inhibition or
ignorance, here are some tips on how to be on top of the board.
Just to
reiterate, inspection of files was pioneered in Pune way back in 2005 and
followed thereafter by the Pune Municipal Corporation (PMC) in 2009, directing
its public authorities to keep every Monday, between 3pm and 5pm, open for
citizens to inspect files. At that time, even public information officers
(PIOs) or heads of public authorities were not aware that it is not necessary
for a citizen to write an application for inspection of files u/s. 4 of the RTI
Act.
In fact, I remember when I met the
secretary, environment in the Mantralaya to inspect files regarding Dow
Chemicals in 2010, despite my having sent him an email and an SMS (as I was
coming to Mumbai from Pune), he asked me to write an application.
I convinced him that I was not required to
do so and the following note made by the late Prakash Kardaley and Vijay
Kumbhar came in handy for me. (The secretary, environment then spoke to his
legal cell about this provision in front of me and then asked his executive
director to show me all the files pertaining to Dow Chemicals and directed him
to give me any photo copies that I wanted).
Thus, when any citizen goes for file
inspection, I would suggest you carry the following note which will be an
eye-opener to the PIO, besides arming you with the required ammunition. Here it
is:
1. Your kind attention is drawn to section 4
of the Right to Information Act, 2005 under Chapter II on `Right to Information
and Obligation of Public Authorities’.
2. As
per the provision, it is obligatory for every public authority (including
xxxxxx name the office you would be visiting) to publish certain
categories of documents so as to make voluntary disclosure of information so
that citizens have “minimum resort to the use of this Act to obtain
information.”
3. Information
covered by section 4, in fact, should have been published on 12th
May, 2005 and disseminated widely in such form and manner which is easily
accessible to the public and should have been updated at regular intervals
later.
4. It
is further explained in the provision that ‘disseminated’ means making known
or communicated the information to the public through notice boards,
newspapers, public announcements, media broadcasts, the internet or any other
means, including “inspection of offices of any public authority. “
I am enclosing here the full text of section 4 as adopted by the Parliament of
India for your reference.
5. I
regret to bring to your notice that no information covered under this section 4
has been disseminated yet by you, a public authority under the state
government, through notice boards, newspapers, public announcements, media
broadcasts and Internet.
6.
Nevertheless, citizens have a right to inspect these documents in the office of
the public authority, including the (xxxx name the office), as
explicitly mentioned in the provision u/s. 4.
7. It
may be noticed that a citizen desiring to inspect the documents containing
information covered u/s. 4 of the Right to Information Act, 2005, need not make
any formal requisition u/s. 6 of the Act because these documents should have
already been published by the public authority (including xxx name the office)
so that citizens have “minimum resort to the use of this Act to obtain
information.”
8.
Implementation of this provision of the Act (u/s. 4) is the direct
responsibility of the head of the public authority. In this specific instance,
it is your direct responsibility as the municipal commissioner and the
administrative head of the Pune Municipal Corporation. Hence this letter is
addressed to you and not to any public information officer (PIO) since no
formal requisition is needed to be filed, please note.
In case the public authority insists on a
formal letter, then write it this way, says RTI activist Vijay Kumbhar:
VERY IMPORTANT NOTE: Intimation of inspection u/s. 4 should be addressed to the top
authority of the government department (meaning the municipal commissioner, if
it is a municipal corporation) unlike an application u/s. 6 which is addressed
to the public information officer (PIO).
Draft of intimation
To
The Head of the Department
Subject – Intimation for inspection of files
related to xxxxxxxxxx
Dear Mr. Head of the Department
As per the circular sankirn2018/ pra.kra.
45/ karya 6, dated 26/11/2018, the government of Maharashtra has allowed
inspection of files in every department. Please note that as per section 4 of
the RTI act and as per the said circular there is no need to give any
intimation for inspection of files in any public authority. However, being
responsible citizens, we thought it preferable to intimate you beforehand.
I intend to exercise my right as a citizen
to inspect documents related to xxxxxx. I will visit your office on Monday
xx/xx/2018.
Thanking you
With Regards
Citizens must remember they are the
custodian of most government files, except the ones u/s. 8 of the RTI Act, says
Kumbhar and, therefore:
• As these files belongs to citizens and
citizens are owners of these files they should not to feel awkward, guilty or
hesitate to demand a file for inspection
• Remember, once a citizen gives them the
intimation, the citizen should not have to wait for a reply from the
officer, simply because a citizen has
the right to inspect files during the designated working hours of the public
authority. The intimation is just for the purpose of convenience and to avoid
excuses by officials.
• Once citizens have gone through the documents
they can ask for the copies of the inspected documents. To obtain such copies,
u/s. 6 of the RTI Act, one need not give an application. Merely giving a list
of document on plain paper is enough. However, they need to pay the fees
required for photocopying.
Text
of Section 4 of the Right to Information Act, 2005
4. (1)
Every public authority shall
(a)
maintain all its records duly catalogued and indexed in a manner and
form which facilitates the right to information under this Act and ensure that
all records that are appropriate to be computerised are, within a reasonable
time and subject to availability of resources, computerised and connected
through a network all over the country on different systems so that access to
such records is facilitated;
(b)
publish within one hundred and twenty days from the enactment of this
Act,-
(i) the particulars of its organisation,
functions and duties;
(ii) the powers and duties of its officers
and employees;
(iii) the procedure followed in the decision
making process, including channels of supervision and accountability;
(iv) the norms set by it for the discharge
of its functions;
(v) the rules, regulations, instructions,
manuals and records, held by it or under its control or used by its employees
for discharging its functions;
(vi) a statement of the categories of
documents that are held by it or under its control;
(vii) the particulars of any arrangement
that exists for consultation with, or representation by, the members of the
public in relation to the formulation of its policy or implementation thereof;
(viii) a statement of the boards, councils,
committees and other bodies consisting of two or more persons constituted as
its part or for the purpose of its advise, and as to whether meetings of those
boards, councils, committees and other bodies are open to the public, or the
minutes ‘of such meetings are accessible for public;
(ix) a directory of its officers and
employees;
(x) the monthly remuneration received by
each of its officers and employees, including the system of compensation as
provided in its regulations;
(xi) the budget allocated to each of its
agency, indicating the particulars of all plans, proposed expenditures and
reports on disbursements made;
(xii) the manner of execution of subsidy
programmes, including the amounts allocated and the details of beneficiaries of
such programmes;
(xiii) particulars of recipients of
concessions, permits or authorisations granted by it;
(xiv) details in respect of the information,
available to or held by it, reduced in an electronic form;
(xv) the particulars of facilities available
to citizens for obtaining information, including the working hours of a library
or reading room, if maintained for public use;
(xvi) the names, designations and other
particulars of the public information officers;
(xvii) such other information as may be
prescribed; and thereafter update these publications every year;
(c)
publish all relevant facts while formulating important policies or
announcing the decisions which affect public;
(d)
provide reasons for its administrative or quasi-judicial decisions to
affected persons;
(2)
It shall be a constant endeavour of every public authority to take steps
in accordance with the requirements of clause (b) of s/s. (1) to provide as
much information suo motu to the public at regular intervals through various
means of communications, including the internet, so that the public have
minimum resort to the use of this Act to obtain information.
(3)
For the purpose of s/s. (1), every piece of information shall be
disseminated widely and in such form and manner which is easily accessible to
the public.
(4)
All materials shall be disseminated taking into consideration the cost,
effectiveness, local language and the most effective method of communication in
that local area and the information should be easily accessible, to the extent
possible in electronic format with the central public information officer, or
state public information officer, as the case may be, available fee or at such
cost of the medium or the print cost price as may be prescribed.
Explanation: For the purposes of s/s. (3)
and (4), “disseminated” means making known or communicated the
information to the public through notice boards,
newspapers, public announcements, media broadcasts, the internet or any other
means, including inspection of offices of any public authority.
(Source:https://www.moneylife.in/article/maharashtra-facilitates-inspection-of-files-here-is-how-to-do-file-inspection-under-rti/55946.html )
PART C INFORMATION ON & AROUND
u 384 tigers killed
in India in last 10 years, reveals RTI
A total of 384 tigers have been killed by
poachers across the country in the last ten years, which translates to over
three a month, a reply under the Right to Information has revealed.
Between 2008 and 2018 (till November), 961
persons have also been arrested for allegedly poaching tigers, it said. The
information was given by the Wildlife Crime Control Bureau or WCCB in response
to a Right to Information (RTI) query filed by Noida-based advocate Ranjan
Tomar.
Tomar also an RTI activist, had asked the
WCCB the number of tigers killed by poachers in the last ten years and the
people arrested and convicted for the same. “As per the data available in
records of the Bureau based on the information received from the State Forest
and Police authorities the total number of tigers killed by poachers in the
last 10 years is 384 and 961 number of poachers arrested in the tiger
cases,” the reply stated. However, the bureau said that no information was
available with it regarding conviction of the accused in these cases.
“The data makes it clear that
successive governments have not been able to check killing of tigers by
poachers and therefore there is a need for a special initiative to conserve
this wild species or make changes in current laws to make them more effective else,”
Tomar said.
For conservation of the country’s national
animal, the government had launched ‘Project Tiger’ in 1973. As per a 2014
assessment, India has the highest number of tigers in the world at 2,226,
according to the website of the Ministry of Environment, Wildlife and Climate
Change.
(Source:https://economictimes.indiatimes.com/news/politics-and-nation/384-tigers-killed-in-india-in-last-10-years-reveals-rti/articleshow/66984490.cms
)
u Mumbai
University examinations in question after they receive 76,828 revaluation
applications
Mumbai University has been infamous for its
mismanagement and inability to cope up with the examinations. In an addition to
the list, Mumbai University has seen a sudden spike in the number of
revaluation applications for the academic year 2017-18. The information was
received after a Right To Information (RTI) application was filed for the same
and therefore, it raises questions against the paper checking process. Revaluation is a facility introduced by the
University for students who are dissatisfied with their score in an examination
or for students who have failed in an examination. However, in order to receive
the benefit of the procedure, the students are obliged to pay a specific amount
of money to the University as ‘Revaluation Fees’, after which the answer sheet
is re-checked by the University. Shoumitkumar Salunkhe had asked for
information of the number of revaluation applications received between June,
2017 and November, 2018. After which, he learned that as compared to the
applications that were received during October, 2017 (60,712 applications), the
applications received during May, 2018 (76,828 applications) had exponentially
increased. And it was crystal clear that the number of applications was growing
every day. However, clarifying on the matter, a University official stated that
the increase in the number of revaluation applications is a result of
University’s decision to reduce the fee to Rs.
250 from Rs. 500. He stated that due to this, the students have been active in
demanding revaluation as the prices are low.
(Source:https://www.mumbailive.com/en/education/more-than-75-thousand-answer-sheet-submitted-for-rechecking-in-mumbai-university-31378 )
u Jammu
& Kashmir (J & K Bank) is now under Right to Information Act
J & K Bank (Jammu & Kashmir Bank)
has been brought under the ambit of the Right to Information Act (RTI) Act,
Chief Vigilance Commissioner (CVC) and the Legislature of the State in Jammu
and Kashmir. The official said on Friday that on Thursday evening under the
chairmanship of Governor of Jammu and Kashmir, Satyapal Malik and State
Administrative Council (SAC), in which the proposal to recognise ‘J & K
Bank’ as Public Sector Undertakings (PSU) has been passed. The SAC approved the
proposal that the Jammu and Kashmir Right to Information Act, 2009 will now be
applied to the Jammu and Kashmir Bank, just like the other banks under the PSU.
He told that besides this, the bank will now have to accept the guidelines of
the CVC.
He said that like the other PSUs of the
state, ‘J & K Bank’ will also be accountable to the state assembly. The
bank’s annual report will be presented in the assembly by the State Finance
Department.
However, Former Chief Minister Mehbooba
Mufti demanded to cancel the decision of the Governor to include Jammu and
Kashmir Bank in the category of PSUs. She said that the involvement of the
Jammu and Kashmir Bank in the category of PSU is a part of the conspiracy to
end the state’s special status.
The state administration has clarified that
there is no intention of interfering in the banking system. The Board of
Director of the Bank is the best and it is his autonomous. RBI will work to
regulate RBI as before. The purpose of the decision of the State
Administrative Council is to bring better governance and transparency in the
functioning of the bank. Applying the Jammu and Kashmir Bank to RTI and
implementing the guidelines of the CVC is just to bring transparency.
The bank will be accountable to the state
assembly and its annual report will be present in the state assembly itself.
The right transparency in the bank will come from the RTI Act. All
administrative and recruitment rules are related to it. Union Minister of
State, Dr. Jitendra Singh said that some families living in the state’s
power have been misusing their bank to understand their estate. The governor’s
decision is in line with the Center’s decision to increase transparency in
financial institutions.
(Source:https://www.newsfolo.com/india/jammu-kashmir-j-k-bank-now-right-information-act/156659/)
u CIC brings
BCCI under Right to Information Act
The worst fears
of an Indian cricket selector are about to come true. BCCI has been brought
under the ambit of the Right to Information Act and faces the direct prospect
of being answerable to the country and its public in the near future. The
Central Information Commission (CIC) — the top appellate body in all matters
related to this 2005 Act of the Parliament of India — has directed the BCCI to
be brought under the RTI Act and put in place, within two weeks starting
Tuesday, online and offline mechanisms to receive applications for information
under the RTI Act. Will a selection committee meeting now be public info? “The
BCCI should be listed as a National Sports Federation (NSF) covered under the
RTI Act. The RTI Act should be made applicable to the BCCI along with its
entire constituent member cricketing associations, provided they fulfil the
criteria applicable to the BCCI, as discussed in the Law Commission’s report,”
CIC Commissioner Sridhar Acharyulu said. Those who oversee the day-today
functioning of the BCCI say they are least bit surprised with the development.
“But there are massive pitfalls associated with this too. All hell will break
loose if details of selection committee meetings are now made available to the
public. Who will want to speak his mind then? Every decision taken inside a
selection committee meeting will become a matter of national debate, leading to
tamasha on prime time television news,” said a senior BCCI member.
Recently, the national women’s team coach was sacked by the BCCI because he —
sources say — was asked to jot down details of team meetings and the cricketers
rejected the idea the moment it was proposed.
(Source:https://timesofindia.indiatimes.com/sports/cricket/news/cic-brings-bcci-under-right-to-information-act/articleshow/66036808.cms)
u Indian
students rushing abroad to study medicine, reveals RTI
There has been an increase in the number of
students willing to study medicine abroad, reveals the reply to an RTI query. The
RTI query was sent to the Medical Council of India (MCI) in October 2018 and
the reply reveals that the number of students who applied for the mandatory
eligibility certificate from MCI to study abroad almost doubled in 2017-18 as
compared to 2016-17.
As per RTI no. MCI- 201 (E-RTI)/ 2018-
Eligi./, the number of applications received was18,383 in 2017-18 as against
10,555 in 2016-17.
Dr. Sylvia Karpagam, a public health doctor
and researcher, said, “The mass migration of doctors has been happening for a
long time and it is not surprising. The entire medical education system, right
from the selection process, the fees and the curriculum are set up as a
commercialised structure, rather than a social commitment. The curriculum
doesn’t focus on the disease that is prevalent in the country. Medical students
are also trained in tertiary care rather than primary healthcare. They are
therefore ill-prepared to work in a primary care setting and definitely not in
a rural care setting.”
As per the information provided in the RTI
communication, MCI issued 8,737 eligibility certificates in 2016-2017 and
14,118 certificates in 2017-18. The eligibility certificates issued also
include pending from previous years, the RTI reply suggested.
Dr. Karpagam said that there is a need to
change the social structure of medical students who get admission to medical
colleges. Investments should be made into government medical colleges to focus
on training students on health issues concerning the country, with the
particular focus on social determinants of health.
The key reason for student migration is the
lack of medical seats in the country, said Mr Saju Bhaskar, president and
founder of an overseas MCI-recognised medical university, Texila American
University. “Information provided in the RTI speaks volumes on the shift in
medical education trends. There are a mere 60,000 medical seats being offered
by both government and private colleges for medical aspirants, who are in
millions.
Apart from this, higher awareness levels of
the overseas colleges, affordable fees compared to Indian private colleges,
curriculum aligned to international standards, better global growth
opportunities etc. are the other reasons why students prefer to study MBBS
abroad,” he said.
(Source:https://www.deccanchronicle.com/nation/current-affairs/201218/indian-students-rushing-abroad-to-study-medicine-reveals-rti.html)
PART D RTI ARTICLE
u India: Copyright and the Right To Information
Can a request for information under the
Right to Information Act, 2005 (“RTI Act”) be denied on grounds of
being the copyright of a third party? This was one of the questions that a two
Judge Bench of the Supreme Court of India recently dealt with. The case related
to the issue of disclosure under the RTI Act, where a person sought information
regarding the plans submitted to public authorities by a real estate developer.
BACKGROUND
The origins of the suit, Ferani Hotels
Pvt. Ltd. vs The State Information Commission, Greater Mumbai (Civil Appeal
Nos.9064-9065 of 2018, decision dated 27th September, 2018, Supreme
Court of India), lie in a private commercial dispute between a real estate
developer, Ferani Hotels, and Mr Nusli Neville Wadia (see).
In brief, Mr Wadia administered certain
plots of land as the owner of that land, and granted Ferani Hotels the
authority to develop the land through a Power of Attorney. It came to pass that
Mr Wadia wanted information about the building plans. When the developer failed
to provide the information through other means, Mr Wadia applied to the Public
Information Officer (“PIO”), Municipal Corporation of Greater Mumbai,
for this information, which included certified copies of plans, layouts,
development plans (and amendments), submitted by Ferani Hotels, its divisions
or architect.
The request for this information was
declined on various grounds by the PIO, including that no public interest had
been demonstrated in seeking this information, and that it was the copyright of
Ferani Hotels. The latter ground was based on two arguments put forward by
Ferani Hotels: firstly, that the information-seeker was a business competitor
and the disclosure of the information would harm and injure its competitive
position, as well as its intellectual property rights; secondly, that all
rights in respect of the plans, designs, drawings, etc., including intellectual
property rights and in particular copyright, were reserved and vested
exclusively with the developer.
After winding its way through the corridors
of the information commission architecture set up under the RTI Act, the suit
found itself before the Supreme Court. The Court, in this order, dealt with
multiple questions relating to the RTI application, such as what constitutes
public interest, but this note is restricted to understanding the court’s views
on copyright and the RTI Act.
THE RTI ACT AND COPYRIGHT
It is useful to discuss some relevant
provisions of the law at this stage. The RTI Act was created in 2005 to
increase the accountability of government authorities towards the public by
facilitating greater and more effective access to information. Section 6(2) of
the RTI Act says that an applicant does not have to provide any reasons for
requesting the information. In other words, anyone can obtain the information
as long as it is part of the public record of a public authority. The Court
additionally observed that even private documents submitted to public
authorities may, under certain situations, form part of public record.
The right to information is subject to
certain restrictions contained in the law. For example, section 8(1)(d) allows
for information to be denied if it includes “commercial confidence, trade
secrets or intellectual property, the disclosure of which would harm the
competitive position of a third party, unless the competent authority is
satisfied that larger public interest warrants the disclosure of such
information”. Similarly, section 9 allows a competent authority to
“reject a request for information where such a request for providing access
would involve an infringement of copyright subsisting in a person other than
the State.”
In the present case, the information sought
for were, in fact, plans relating to the property in question. These plans are
ordinarily required to be submitted by any person proposing to construct on a
property, to the Commissioner of the Corporation. The general principle, which
the Court has reiterated in multiple pronouncements, is that the “fate of
[the] purchase of land development and investments is a matter of public knowledge
and debate.”
To highlight this principle, the Court made
reference to provisions of the Maharashtra Ownership Flats (Regulation of the
Promotion of Construction, Sale, Management and Transfer) Act, 1963, which
empower purchasers of flats (which are being built by a developer) to obtain
full information of the sanctioned plans. (This law, although relevant for this
case, has since been repealed by Real Estate (Regulation and Development) Act,
2016, which retains the same spirit of positive information disclosure). The
Court made two pertinent observations in this context: firstly, that this right
to obtain information about sanctioned building plans should not be restricted
to flat-buyers, but should also be available to persons who administer the land
as owner, and grant authority for its development. Secondly, the Court noted
that the disclosure of plans, which are already required to be in public domain
under law, cannot possibly be matters of commercial confidence or trade
secrets.
THE COURT’S CONLUSIONS
On the issue of intellectual property and copyright, the Court noted
that even though the preparation of the plan and its designs may give rise to
the copyright in favour of a particular person, the disclosure of that work
would not amount to an infringement. Towards this, it cited section 52(1)(f) of
the Copyright Act, 1957, which specifically provides that there would be no
such infringement if there is reproduction of any work in a certified copy made
or supplied in accordance with any law for the time being in force. This is
what was sought for in the present case.
The other relevant observation pertained to
the implications of the overriding effect clause contained in section 22 of the
RTI Act, which provides for an overriding effect with a notwithstanding clause
with regard to any inconsistency with any other Act. The Court clarified that
this would not imply that a disclosure permissible under the Copyright Act,
1957 is taken away under the provisions of the RTI Act, but rather, if a
disclosure is prescribed under any other Act, the provisions of the RTI Act
would have an overriding effect.
A LEGAL MISADVENTURE
While tackling this case, the Court also
made plain-spoken observations about the nature of the dispute, calling it
“a legal misadventure”, emerging “clearly [from] the private
dispute, rather than any objective consideration qua the issue of
disclosure of information”, and where “the issue in question was ….
really innocuous”. Costs of Rs 2.50 lakhs were imposed on the appellant,
Ferani Hotels, payable to the information-seeker, although the court also noted
that these were hardly the actual expenses!
Article by Sumathi Chandrashekaran
(Source:http://www.mondaq.com/india/x/759832/Trade+Secrets/Copyright+And+The+Right+To+Information )
RTI Clinic in January 2019: 2nd,
3rd Saturday, i.e. 12th, 19th and February 2nd
11.00 to 13.00 at BCAS premises
