BCAJ | Bombay Chartered Accountant Journal

Right to Information

Part A : Decisions of the Court and CIC

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].

Part B : The RTI Act

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.

Part C: Other News

• 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:

In a bid to strengthen the Right to Information Act, the Government has initiated action on a proposal to review the exemption of security and intelligence organisations from its purview. It is being examined whether some of the organisations could be deleted from the second schedule of the Act. Another proposal under examination of the department is to add some more categories of information to the list given in S. 4(1) of the Act which all public authorities are required to publish suo motu. This will enable greater proactive disclosures by public authorities.

• 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.

BCAJ Admin

ORDERS OF CIC

Right to Information

S. 4(1)(c) :

S. 4(1)(c) reads as under :

Obligation of public authority — “4(1) every public authority
shall —

(C) publish all relevant facts while formulating important
policies or announcing the decisions which affect the public;”

Shri Venkatesh Nayak had filed 2 RTI applications with PIO of
two departments of Government of National Capital Territory of Delhi (GNCTD)
asking for proactive disclosure of contents of the Delhi Police (Amendment)
Bill, 2010 (DP Bill) as required u/s.4(1)(c) of the RTI Act. He received no
reply. Mr. Nayak then filed a complaint u/s.18 of the RTI Act with the
Commission.

Subsequently Mr. Nayak was informed that the DP Bill had been
placed on the website of the Delhi Police, GNCTD and the Ministry of Home
Affairs, Govt. of India and comments from the citizens, media persons, etc. were
invited.

CIC, Shailesh Gandhi in the decision wrote as :

“A plain reading of S. 4(1)(c) of the RTI Act suggests that
every public authority is required to publish or disclose all facts and
circumstances, which are relevant and taken into account while formulating
policies and taking decisions that would affect the public. S. 4(1)(c) of the
RTI Act requires proactive disclosure of proposed laws/policies and amendments
thereto or to existing laws/policies to enable citizens to debate in an
informed manner and provide useful feedback to the government, which may be
taken into account before finalising such laws/policies.

Given that the DP is a significant legislative change, the
relevant public authorities involved in drafting of the said bill had a duty
to proactively disclose its contents u/s.4(1)(c) of the RTI Act. The concerned
public authority, however, acted only after the complainant approached the
Commission and filed a complaint u/s.18(1) of the RTI Act. The public
authority should have disclosed the contents of the DP Bill suo motu and by
omitting to do so, the very purpose of S. 4(1) of the RTI Act stands defeated.
The Commission has further observed that at present, the GNCTD is not fully
complying with S. 4 of the RTI Act and therefore, is of the view that citizens
must be provided with means to debate legislative and policy changes, which
are likely to affect public lives as contemplated by the GNCTD. The citizens
individually are the sovereigns of the democracy and they delegate their
powers in the legislature. The RTI Act has recognised this and S. 4(1)(c) is
meant to ensure that the citizens would be kept informed
about proposals for significant legislative and policy changes.

In view of the aforesaid, the Commission, under the powers
vested in it vide S. 25(3)(g) and S. 25(5) of the RTI Act hereby directs the
Chief Secretary, GNCTD to develop a credible mechanism in all departments for
proactive and timely disclosure of draft legislations/policies and amendments
thereto or to existing laws/policies in the public domain, as required
u/s.4(1)(c) of the RTI Act, during the process of their formulation and before
finalisation.”

[Mr. Venkatesh Nayak v. Chief Secretary, Government of
National Capital Territory of Delhi, Decision No. CIC/SG/C/2010/000345+000400/8440,
decided on
7th July, 2010.]

?
Secret Accounts of Indian citizens in Swiss banks :

Very significant decision of the Full Bench (4 members) of
Information Commission on the subject in National debate since long viz. money
of Indian citizens lying in Swiss banks.

Shri V. R. Chandran had sought the following information from
the PIO of Directorate of Enforcement :

(1) Whether the Ministry of Finance/GOI is aware of the
existence of secret accounts of Indian citizens in Swiss banks amounting to
1456 billion US dollars?

(2) If yes, has any action been taken to find the identity
of the account holders ?

(3) If the list of depositors is available, please provide
a copy of the same, with complete information about the depositors,

(4) Are the transactions legitimate ?

(5) If the deposits are illegal, what action has been
contemplated on them ?

(6) Has the GOI/MOF addressed the Swiss authorities for
repatriating the illegal money ? If
not, why ?

(7) Are there such accounts in any other
countries ?

(8) If all or any of the actions mentioned above have not
been done, please furnish the reason therefor,

(9) If MOF/GOI holds the view that the said media reports
are not to be trusted, what action has been taken or proposed to be taken on
them for false propaganda ?

The CPIO and the first Appellate Authority held that the
Directorate has been exempted u/s.24 read with the Second Schedule of the RTI
Act.

Before the Commission, some of the submissions of the
applicant were :

The Enforcement Directorate cannot dispute that exporting
Indian currency to foreign countries was illegal. It was possible only because
of failure of officers of the Government of India under the Enforcement
Directorate or I.T. Department. Because of non-exercising of the powers and
duties by the above-said officials, Indian citizens who deposited money in
secret accounts got pecuniary advantage to the extent of tax liability of the
said amount. Therefore, non-exercising of the powers by the officers would be
nothing but the abuse of power to cause pecuniary advantage to those persons who
deposited in secret accounts, which is nothing but a criminal misconduct as
defined by u/s.13(1)(d) of the P.C. Act. Further, the corruptive attitude is
glaringly evident that in spite of exposure by the news media the authorities
failed to initiate meaningful action to retrieve the money and even did not
enlighten the taxpaying citizens to know what was happening by furnishing
information under the RTI Act. Therefore, the whole episode involves corruption
and violation of human rights of all citizens, specifically the 30 crore
citizens living in undignified condition in India. As such, the applicant
satisfies the stipulations under the first proviso to S. 24 of the RTI Act, 2005
and hence the applicant is entitled to get information sought for and the
Enforcement Directorate is duty bound to furnish the same along with costs.

The Full Bench took assistance of the Ministry of Finance, Department of Revenue, Department of Banking and Ministry of Law and Justice in the matter. Their comments were invited. The Ministry of Law & Justice and Department of Banking did not give any comments on technical grounds. However, the Department of Revenue in brief stated as under :

The general impression that all accounts of Indian citizens in foreign banks are illegal is not correct.

Indian citizens, who are NRIs, can maintain and operate foreign accounts and there is no requirement to get permission or even inform the tax authorities or RBI in India.

The restriction is only for Indian residents. However, FEMA permits opening of accounts abroad with the knowledge or permission of competent authority. Thus, all foreign accounts of resident Indians are also not illegal.

Movement of funds from India to outside and vice versa are now permitted liberally under the FEMA regime.

The details of bank accounts of individuals are protected from disclosure even under the RTI Act, etc. As far as foreign accounts are concerned, the foreign banks do not come under the jurisdiction of Indian authorities.

In order to get the information from the foreign governments on bank accounts suspected to contain proceeds of crime/tax evasion, the Indian authorities have to indicate the name, a/c. No., crime/tax evasion and the jurisdiction for seeking the information.

Therefore, none of the agencies hold the full details of such accounts. There will be only the details of specific cases, which are under investigation, adjudication, prosecution, etc.

‘The Income Tax Authorities’ and ‘the Directorate of Enforcement’ are 2 agencies under the Department of Revenue, which deal with the illegal money of Indian residents lying abroad.

In order to bring back illegal Indian money lying abroad, the following actions have been initiated/taken :

a) The Income-tax Act, 1961 has been amended through the Finance (No. 2) Act, 2009, and it would enable the Central Govt. to enter into Agreement for the Exchange of Information and Assistance in Collection of Taxes (AEI&ACT) with non-sovereign jurisdictions.

b) In this regard, they have written to the Ministry of External Affairs with respect of 19 prioritised countries/jurisdictions, for taking up the matter with them for entering into such agreements.

c) Since the existing tax treaty with Switzerland does not provide for exchange of bank-related information, etc., the renegotiation of the tax treaty with Switzerland is being undertaken. The first round of negotiations was held on 10-12 Nov., 2009. Once the protocol amending the tax treaty is notified, India would be able to obtain bank-related information in specific cases from Switzerland.

d) MEA has also been approached to renegotiate the remaining tax treaties, which are in force, but do not specifically provide for exchange of bank-related information.

e) India has been actively taking part in building global consensus for taking action against those jurisdictions/countries, who are not transparent or cooperative in exchanging information with other countries.

‘The Directorate of Enforcement’ is listed in the Second Schedule of the RTI Act and therefore, in terms of S. 24 it is an exempted organisation. Assuming but not admitting that information about Indian money lying in foreign bank accounts is available with the Directorate, no disclosure need be made by the Directorate.

[My reaction to above 10 point reply : It appears that the Department of Revenue has diverted its reply to generality of the subject. It has not provided but avoided to give the information sought.]

Besides the above, the Directorate made submissions discussing DTAA with Switzerland, OECD standards on exchange of information as contained in Article 26 of the OECD model tax convention. He further stated that the Government of India has taken steps to collect authentic and accurate information about the black money stashed away. The Directorate of Enforcement also brought to the notice of the Commission writ petition (Civil) No. 176/2009 pending in the Supreme Court on the similar subject matter.

After considering the above submissions of both the parties, the Full Bench gave the following decision in 4 para, 14 to 17 of the order :

14. The issues, which have been raised in this RTI application, are serious and have understand-ably raised public concern. The Enforcement Directorate — the principal agency of the Government to check and undo illegal stashing away of money from the country — has taken a rather technical position about disclosure of the information relating to it. Their position, briefly stated, is that they cannot either confirm or deny the media reports about the likely volume of black money stashed away in foreign banks illegally by Indian nationals. While this position is, doubtless, defensible, it leaves unanswered the perennial question as to what resources the country has lost to the evil of money laundering. We would like this matter to be taken beyond technicalities and to address the larger issue related to transparency in this vital field, about which the citizens of our country are keen for answers.

15. While the Enforcement Directorate may take the position that they have no way of assessing the total volume of illegally held money by Indians in foreign banks, they can surely provide an estimate of the total volume of such money involved in the investigations they are presently conducting. In other words, the Enforcement Directorate can let the country know as to how much is the total sum of such money they are dealing with in their current investigations. This figure can be arrived at through the simple contrivance of aggregating the sums of money in all such investigations currently underway. The Enforcement Directorate need not disclose the nature of such investigations or the parties’ names. Surely, it is within its power to disclose the total amount of monies covered by these investigations.

16. The Enforcement Directorate had strenuously argued before us that they stand exempted from disclosure obligation under the RTI Act by virtue of their inclusion in the Second Schedule, u/s.24 of the RTI Act. We would like to dwell upon this aspect of argument in the context of a proviso built into the S. 24 itself, i.e., that these exemptions are subject to their not being matters of ‘human rights violations’ or ‘allegations of corruption’. In our view, all matters now investigated by the Enforcement Directorate in the matter of stashing away of Indian money in foreign banks, come within the definition of allegations of corruption in S. 24. There is eminent and compelling reason why this exception must be applied in the present case.

17. We direct the Enforcement Directorate to provide the information on Point Nos. (1) and (8) as per the direction in the preceding paragraphs. Point Nos. (2), (3) and (5) have been answered extensively in the foregoing discussions. Point Nos. (4) and (9) are questions which are in the form of seeking views and opinions and cannot be the subject-matter of RTI applications. Point No. (7) has been answered before us by the Department of Revenue.

[Shri V. R. Chandran v. Directorate of Enforcement, Appeal no. CIC/AT/A/2009/000353 decided on 28-9-2010]

PART B : THE RTI ACT 2005

In the last issue of BCAJ, the keynote remarks of Shri Gopalkrishna Gandhi at the CIC’s 5th annual convention held on 13th and 14th September 2010 was covered under this part. Now hereunder is covered the extracts from the speech of Shri Nandan Nilekani at the said convention :

A defining period for the country:

As a developing nation, the RTI Act was a decisive step for India. In most developing countries, citizen interaction with government is a Rubik’s cube of confusing procedure and requirements, and the asymmetry of power citizens face in interacting with governments encourage corruption and reduce the effectiveness of public services. The passing of the Right to Information Act in India was a big step away from this culture. The Act mandated that all citizens shall have the right to information, thus making it both a legal and justifiable right. It is a law that acknowledged that information can be a potent empowering force and critical to improving governance, and the public must have access to it.

A twin vision : bringing greater accountability in governance:

The Aadhaar Project, I believe, intensifies this movement. The RTI Act and the Aadhaar Project have a similar vision at their heart : that the government must be accountable to the people it governs.

While the RTI brings more accountability to governance by enabling better access to information, the UIDAI hopes to do this through the Unique Identification Number — the Aadhaar, it will issue to individuals across India. The number will allow individuals to clearly establish their identity to any agency in the country. This will be critical in combating the anonymity that impedes access for many of the poor to public benefits and services.

By authenticating their identity — either through biometrics or demographics — with the Aadhaar number in real time, individuals will also be able to verify whether they have received a particular service or benefit. This will bring last mile transparency to delivery of public services, and would also enable individuals to hold governments accountable when their wages and benefits are denied to them.

Such confirmation of benefit delivery is a particularly urgent requirement across social welfare schemes, since diversion and non-delivery of benefits has been a challenge across India.

The demand at the grassroots:

The Right to Information movement was driven by the passion of grassroot activists, and concerned citizens. From that local movement for ‘poora kaam, poora daam’ it became the national, visionary legislation we see now. The constitution of the UIDAI has a less romantic back-story, but has nevertheless, evolved into a project with similar transformational potential. There has long been a grassroot need for identity among India’s underprivileged, especially among the poorest and the most marginalised. Whether it is the anonymous migrants working and living in urban slums from Pune to Kanchipuram to Delhi; poor families unable to get BPL cards; or ordinary villagers who cannot open a bank account since they lack documentation, the demand for identity is palpable across the country, and the lack of it is deeply felt among the millions who work in the shadows of our institutions.

Building a bigger window:
accessing more information:

Since the Right to Information Act and the Aadhaar number have similar objectives for India’s residents, it is reasonable to consider that one can strengthen the other.

The vision of the RTI Act is a monumental one. In practice however, the Act has not been employed to the full extent that is possible. The RTI is most used today when a citizen applies for information from a particular public agency. We have been relatively less successful, however, in seeing the provisions of S. 4 enforced. S. 4 of the Act surrounds proactive disclosures — it states that public agencies and departments must release detailed information on operations and service delivery regularly to the public, and computerise records where possible for easier access. It requires public authorities to publish the matter of execution of subsidy programmes, including amounts allocated and the details of beneficiaries. In addition, it states that public authorities must maintain records as far as possible, in a computerised format, and connected by network all over the country to enable easy access for the public. For most public agencies and departments in India, however, computerising and releasing vast amounts of data, which now largely remain on paper, has proven to be a difficult task. Most departments, therefore, simply don’t do it.

The spirit behind S. 4 and proactive disclosure is that individuals should have to resort, as little as possible, to the Act in order to access information on public schemes. The Aadhaar-enabled applications the UIDAI envisions can turbo-charge the enforcement of these S. 4 provisions across our subsidy and welfare schemes, particularly within programmes such as the Public Distribution System and the NREGS. The availability of electronic records within such programmes would be a natural outcome of the applications that the UIDAI would implement in the coming years.

In the PDS, for example, public access to records through the RTI have been largely limited to the stock and sale registers of PDS outlets. The Aadhaar application in PDS would help enable broad-based computerisation of the PDS supply chain, making much of the available information across the various stakeholders electronically available. The Aadhaar application would enable every PDS beneficiary to confirm that they’ve received the grain by verifying their identity through Aadhaar. Such verification would be linked to an online MIS system. This would bring end to end accountability for every bag of grain — information on the movement of food grain that could be tracked online and in real-time, and published.

Petitioning the state:
enabling the underprivileged:

An important vision of the Right to Information Act was that it would bring the power of information to people most deprived of it in the country. However, the RTI application requires paperwork as well as follow-up in case it is rejected at the first level of appeal, which many of the poorest find difficult to do, due to the travel and additional filings that are required. BPL applicants face additional encumbrances — in order to waive the RTI application fees, they must provide documentation to prove that they are below the poverty line, which many of the poor don’t have.

Aadhaar could enable a mobile-based application, through which individuals could file an Aadhaar-linked RTI application through a mobile phone. Money could be debited either through the mobile phone or through an Aadhaar-linked bank account. The Aadhaar number could also be used to verify whether an individual falls into the BPL category. Follow-up of RTI requests and appeals could also be done remotely through mobile, reducing the travel and other practical constraints that the individual has to face. In addition, the status of the Aadhaar-linked RTI application could be tracked on a centralised, online database. Such a database would also enable the public and independent organisations to view the number of RTI applications that are pending, information that has been released, and so on.

Easing up the RTI process through Aadhaar applications would make the Act more accessible to millions across the country, particularly the poor.

The access to information is in itself a message : by enabling this, governments acknowledge that they are answerable to the people that elect them. By easing such information access to include the poor we would strengthen the objectives of the Act, help further reduce the inequalities that now exist between the ‘information rich’ and the ‘information poor’, and give the poor the tools to ensure that they receive better, fairer services.

Transforming India’s state-resident relationship:

What is perhaps the most defining feature of poverty is not just the absence of good housing and sufficient food, but the lack of access the poor have to the resources they need to change their circumstances — resources such as education, health, information and employment.

The RTI and Aadhaar are most fundamentally, about empowering the individual, and enabling such access for the poor. They do this by building a stronger, clearly acknowledged and accountable relationship between the state and the citizen. They give people the opportunity to form a direct relationship with their governments : through which they can request information necessary for them, demand individual recognition, get access to the services they need, and confirm to governments when they received an entitlement, and when they did not.

In the last few years, we have received a clear message in the recent policy efforts and reforms : that the path to development must be an inclusive, pro-poor one. The RTI and Aadhaar are potent, indispensable parts of this effort. Together, they can have a powerful impact on our broader reform movement : one that aims for a developmental agenda that is fairer, more equitable, and acknowledges and enables access for even its weakest citizens.

Part C?: Information On & Around

Political influence rules over merit :

Political interference at the highest level has been a common feature of the selection of staff at the Tamil Nadu Dr. MGR Medical University for three years between November 2006 and 2009, an RTI plea has found out. Documents obtained by TOI indicate the role of the Raj Bhavan and office of the State Health Minister in influencing the selection process in favour of certain applicants, thereby denying meritorious candidates a chance.

Errant taxi drivers of Mumbai :

There has been a rise in the number of errant taxi drivers being punished for rigged meters or inflated readings in Mumbai’s suburbs in the past three years. This was revealed in the official statistics provided by the RTO to civic activist Anil Galgali under the Right to Information Act. The RTO said in its RTI reply that the action was taken by the flying squads based on complaints lodged by commuters. “But why should RTO officials wait for us (commuters) to complain ? Why can’t these flying squads have surprise checks? I am sure they can catch several autos overnight if they go on a surprise round across the suburbs,” Galgali pointed out.

Maximum RTI applications in Maharashtra:

Statistics show that most queries raised under the Right to Information Act pertained to the State Urban Development Department. Of the nearly 4.5 lakh applications, clarity on issues related to the Department, which is considered crucial to the space-starved city. The data was provided by Chief Information Commissioner Suresh Joshi who addressed a press conference on his last day in office on 11-10-2010. According to Joshi, 12,5418 applicants sought information on matters involving the UD Department, followed by 72,393 info seekers who wanted the Revenue Department to answer their questions.

CIC rescued:

Recently, the Supreme Court has rescued CIC the nodal body for smooth implementation of RTI from slipping into administrative chaos. On May 21, the Delhi HC had quashed the CIC (management) Regulations, 2007, framed by the Chief Information Commissioner for smooth functioning of CIC. The HC had also held that the Chief Information Commissioner had no power to constitute benches of CIC. The Bench, after brief arguments, stayed only that part of the HC order which restrained CIC from constituting benches for distribution of work. This means, the Chief Information Commissioner can now allot work to other Information Commissioners, for speedy disposal of RTI appeals.

BCAJ Admin

Right to Information

Part A: Decisions of the Court and CIC

S. 8(1)(e), (i), (j) and S. 10(1) of the RTI Act :

Ms. J. D. Sahay, CCIT-1, Ahmedabad had applied for empanelment/appointment to the post of member, CBDT in 2006 but was not selected. Aggrieved by non-selection, in 2007 she sought certain information, which could throw light on the reason for her non-selection.

Vide two RTI applications, the appellant had sought copies of various documents including her ACRs of 10 years, minutes of the meeting of Committee of Secretaries (COS) and certain other information concerning the process of empanelment.

Both, her applications and appeals were rejected on the ground that the information sought for is personal and confidential in nature and, therefore, exempted from disclosure u/s.8(1)(j) of the RTI Act and also on the basis that information sought is of secret/ confidential in nature, therefore, exempted from disclosure u/s.8(1)(i) of the RTI Act.

Interestingly, the First Appellate Authority (FAA) further invoked S. 8(1)(e) stating that the information is available with the Department of Revenue in their fiduciary relationship with officers who were under consideration during the selection.

In her appeal before CIC, she made following submissions :

(i) Both CPIO and Appellate Authority erred in denying her the information and the decision was announced without hearing her. Hence grave injustice has been done to her;

(ii) Information has been used against her without disclosing the comments/gradation to her at any time. This is gross injustice done to her;

(iii) The plea regarding secret and confidential nature of information does not hold force because the information relates to the appellant and that she is not seeking information in respect of any other person;

(iv) The procedure and technique followed to determine any cut-off point should be disclosed to the aspirants. The action relating to the determination and application of cut-off points being a critical factor for an aspirant should be put in public domain.

At the hearing before the full Bench of CIC, Ministry of Finance, Department of Revenue in the written submission argued that file dealing with selection of Members, CBDT contains various secret and personal information about the officials considered for selection. This information is exempted from disclosure in view of the provisions contained in S. 8(1)(e), (g), (h), and (j) of the RTI Act. At the time of hearing, the respondents also stated that what are being asked for are not DPC proceedings but proceedings of a Selection Committee consisting of senior Secretaries. All these proceedings are confidential and marked as such. They also submitted that these minutes are not with them but the Cabinet Secretariat.

CIC in its order stated :

The object of RTI Act is also to bring in transparency and accountability in the working of Public Authorities. RTI Act confers a right on the citizen to access information held by a public Authority and every public Authority is obliged to facilitate this right. ACRs do contain an objective assessment of an officer and non-communication of the same has been held to be arbitrary by the Court and as such violative of Article 14 of the Constitution of India.

In regard to the disclosure of Annual Confidential Report, it has been our view that what is contained therein is undoubtedly ‘personal information’ about that employee. Accordingly, in Shri Gopal Kumar v. Maj. Gen. Gautam Dutt, DGW, Army HQ, (Appeal No. CIC/AT/A/2006/00069 dated 13-7-2006), a Division Bench of Commission held that ACRs are protected from disclosure because arguably such disclosure seriously harms interpersonal relationship in a given organisation. Further, the ACR notings represent an interaction based on trust and confidence between the officers involved in initiating, reviewing or accepting the ACRs. These officers could be seriously embarrassed and even compromised if their notings are made public.

As regards the documents concerning DPC, the concerned Public Authority is directed to make available information in terms of request of the appellant but there shall be no obligation to disclose details concerning 3rd parties. The respondent Public Authority may suitably use the severability clause in S. 10(1) of the Right to Information Act.

Note :

Paras 1 and 2 in above order are contradictory to each other. In para 1, as stated, the Supreme Court has held that fairness and transparency in public administration requires that all entries whether poor, fair, average, good or very good in the ACR whether in civil, judicial, police or any other State service except military must be communicated to him within a reasonable period so that he can make a representation for its upgradation. The Apex Court held that in their opinion this is the correct legal position even though there may be no Rule/G.O. requiring communication of the entry, or even if there is a Rule/G.O. prohibiting it, because the principle of non-arbitrariness in State action as envisaged by Article 14 of the Constitution in our opinion requires such communication. Article 14 will override all rules or government orders.

In para 2, inspite of above position, Commission has denied disclosure. It has taken the following view :

There are, thus, reasonable grounds to protect all such information through a proper classification under the Official Secrets Act. This decision of the Commission has been followed in several other decisions also and the Commission has held that the disclosure of ACR is exempt u/s.8(1)(e) of the Right to Information Act, 2005 unless the Competent Authority is satisfied that a larger public interest warrants disclosure of such information.

It is further noted that the Commission may change the hitherto held view if a full Bench of the Commission considering the matter in a couple of appeal/complaint cases decides otherwise. Presently, the matter is still considered as sub-judice by the commission.

[Chief CIT-I, Ahmedabad v. Ministry of Finance, Department of Revenue, New Delhi, Appeal No. CIC/AT/A/2008/00027 & 33; Decided on : 6-2-2009]

(Full Bench Coram : Mr. Wajahat Habibullah, CIC, Prof. M. M. Ansari, IC and Mr. A. N. Tiwari, IC)

Whether co-operative societies are public authorities?

In September 2009 issue of BCAJ, in this column is reported the judgment of the Kerala High Court holding that co-operative societies are public authorities.

Similar issue has come before the H.C. of Bombay (Nagpur Bench) decided on 31-1-2009 in which the Court has held :

It is well settled that general regulations under an Act, like the Companies Act or the Cooperative Societies Act, would not render the activities of a company or a society as subjects to control of the State. Such control in terms of the provisions of the Act are meant to ensure proper functioning of the society and the State or statutory authorities would have nothing to do with its day to day functions.

As pointed out earlier in the present matter we have to find out whether the petitioner-bank is controlled by the government, if ‘yes’ it will be ‘public authority’ and if ‘no’ it will not be ‘public authority’, because none of the other requirement to make an institution a ‘public authority’ are available in the present case. ‘Control’ does not mean regulatory or statutory control. In the case of Ajay Hasia v. Khalid Sehracvardi, reported in AIR 1981 SC 487 three judges’ Bench of the Supreme Court had laid down the law and it was reiterated by the Constitution Bench of the Supreme Court in the case of Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111 and the observations of the Supreme Court in Pradeep Kumar v. Indian Institute were reiterated in the case of S. S. Rana v. Registrar Co-op. Societies. Thus, it is clear that the control must be particular to the body in question and it must be deep and pervasive. If it is – so found then such body is ‘State’ within the meaning of Article 12 of the Constitution of India or a ‘public authority’ within the meaning of S. 2(h) of the Right to Information Act. When the control is merely regulatory; whether under statute or otherwise, it would not serve to make the body a ‘State’ or ‘public authority.’ In view of the full Bench authority of this Court in the case of S.V. Co. op. Bank v. Padubidri, (AIR 1993 Bom. 91) and in view of law laid down by the Supreme Court in several authorities, it is clear that, in absence of existence of deep and pervasive control with reference to the institution, it cannot be called a ‘State’ or ‘public authority’ within the meaning of the Right to Information Act.

In view of the fact and legal position discussed earlier, it must be held that the petitioner Bank is not a ‘public authority’ within the meaning of S. 2(h) of the Right to Information Act.

I find that the State Information Commissioner committed error in allowing the appeals filed by respondent No. 3. Therefore, it is necessary to intervence and set aside the impugned order”.

[Dr. Panjabrao Deshmukh Urban Co-operative Bank Ltd. v. The State Information Commissioner, W.P. No. 5666 of 2007; decided on 31-1-2009]

Author’s comments:

Similar to the decision as above of Bombay High Court, in more than one case, Karnataka High Court has. also decided on similar ground, that co-op. SOCIetiesare not public authority.

What distinguishes decisions of Bombay & Karnataka High Court v. that of Kerala HC is that the former is based on ‘control’ provision while the latter is based on ‘substantially financed’ part of the provision [So2(h)(d)(i) reads: body owned, controlled or substantially financed]. Kerala High Court has taken within its sweep all funds provided by appropriate Government from its own funds or funds which reach societies thru Government or with its concurrence i.e. financed directly or indirectly by appropriate Government.

I am of the opinion that the decision of Kerala High Court is eorrect and needs to be accepted by all. Other day justice D. Chandrachud said: “There must be wider norms for disclosure. Suppression of information must be the exception. He also said that time has come when RTI should not only cover just public bodies but also private bodies. In number of cases, Information Commission has stated: “Under this Act, providing information is the rule and denial is an exception. Any attempt to constrict or deny information to the sovereign citizen of India without the explicit sanction of the law will be going against rule of law”.

Part B : The RTI Act

Continuing from October BCAl, the summary of two reports:

One study by Price water house Coopers (PWC) as appointed by the Department of Personnel and Training (DOPT), titled as ‘Understanding the key issues and constraints in implementing the RTI Act.’ Its final report as Executive Summary is published in June 2009.

Second study by National Campaign for People’s Right to Information (NCPRI) and RTI Assessment Analysis Group (RaaG) in collaboration with number of other social bodies including TISS, Mumbai under the title ‘Safeguarding the Right to Information’ .

DOPT-PWC Report:

Improving convenience in filing requests:

As determined by the survey, most of the applications (more than 70% of the people surveyed) for information are filed at the Government offices, a conducive and facilitative environment at Government offices is a necessary condition to ensure that citizens are able to apply and receive information in a convenient manner.

Key issues:

As per S. 4(1)(b)xv-xvi, S. 6(1) and S. ‘5(3), the Public Authority is expected to proactively provide certain information/facilitate the citizens in accessing the information as per the RTI Act. However, during the study, it was noticed that there was a wide gap in ensuring convenience to the citizens in filing requests for information. There were also anecdotal instances where the citizen was discouraged to file for information requests (e.g., the form for requesting information is only a guideline, but at many places, the information requests were rejected if the applications were not in the prescribed format).

Submission at the PlO office is the most prevalent channel. However, over 26% of the citizens had to pay more than three visits to submit applications and 17% said no sign boards were present to help them with the process.

Lack of an updated list of PIOs, which leads to citizen inconvenience [providing updated list of PIOs as per S. 4(1)(b)(xvi)].

Payment of cash is the most prevalent channel. However, it has the inherent limitation of requiring the applicant to be present physically, whereas as per the Act, there is no such restriction. Most of the payment modes accepted by the Public Authorities have this inherent limitation.

Inadequate help was provided to applicants or the attitude of PIOs was non-friendly [assistance is expected from PIOs as per S. 5(3) and S. 6(1)].

Approximately 89% of the PIOs were not using the provision of inspection of records by citizens, which led to delay in providing information. (As per S. 2(j)(i), ‘inspection of work, documents, records’ is a means to provide information under Right to Information Act).

Over 75% of the information seekers were dissatisfied with the quality of information provided.

Encouraging accessibility to information is one of the major change management issues among Government employees. For a Government servant, there has been a significant shift from the ‘Official Secrets Act’ mindset to the ‘Right to Information Act’ mindset.

Recommendations:

In order to facilitate filing RTI requests / appeals, the following alternative channels should be considered :

Common Service Centers (CSCs) is a scheme of the Government of India under which 1,00,000 CSCs are being created. This means that there would be approximately 1 CSC for every 6 villages. These CSCs are expected to act as front-end/single window outlets for many Government services. These are being operated by private agencies under the Public-Private-Partnership model. It is recommended that these CSCs should be used to collect applications [to act as APIO, as per S. 5(2)] and facilitate Citizens in filing RTI applications.

Department of Posts (GoI) is already a designated APIO under the S. 5(2) for Central Government. It is suggested that the State Governments also accord the status of APIO to post offices and designate staff to assist citizens in drafting and forwarding the applications/appeals.

RTI Call Centers : these have already been implemented in some states or are in the process of being implemented (e.g. in Bihar, Haryana). This is a convenient channel wherein the RTI application is taken by the call centre and payment of fee is included in the telephone bill.

RTI Portal: In this case the information request can be made through the RTI portal. Various State Governments have already started planning the implementation of this recommendation. The RTI portal should contain links to all Ministry /Department websites of the appropriate Government.

The Ministry/Departments should provide a comprehensive list of agencies/offices under its control and a link (or a webpage) which contains all the suo-moto information desired in S. 4(1)(b).

These agencies / offices should be categorised as recommended in ARC report, viz. (i) constitutional body (ii) line agency (iii) statutory body (iv) public sector undertaking (v) body created under executive orders (vi) body owned, controlled or substantially financed and (vii) NGO substantially financed by the Government.

The RTI application is made online by choosing the relevant Public Authority on the website owned by IC/appropriate Government. The information seeker has the option of making the payment of fee through a payment gateway.

Also there are various e-Governance initiatives (such as e-District, e-Municipalities) which are proposed to have an RTI module in the software application being developed for this project. The role of e-District kiosks would be to act as APIOs for the other State Govt. departments.

Further, it is suggested that the appropriate Government amend relevant rules so as to facilitate ease in paying the requisite fees from any part of the country, as per S. 6(1). Some of the recommendations are as follows:

Define certain minimum channels for payment, some of which are convenient to people residing in other parts of the country. At the least, it should have the following channels:

i) Indian Postal Order

ii) Demand Draft

iii) Cash

iv) Court fee stamps

v) Non-judicial stamps

Introduce RTI envelopes, which would have an inbuilt cost of application fee.

Facilitate payment through Electronic Pay-ment Gateway while submitting RTI application on the web.

At this stage, it would be pertinent to mention that some of the above channels may lead to revenue loss for the State Government (for example payment made through Indian Postal Order /RTI envelopes would result in revenue accruing to the Central Government, whereas the revenue should accrue to the State Government in case the RTI application is for a Public Authority under the State Government.

However, it may be noted that this loss would be insignificant and the revenue accruing to the Central Government would be utilised for strengthening the Act through awareness generation, Knowledge Resource Centre, etc.

Raag & NCPRI Report:

Current status and preliminary findings:

(2) Urban survey:

RTI applications have been filed in Public Authorities (PAs) of the Central Government, 10 State Governments and Delhi. However, the current analysis is based on applications received by 305 PIOs in 6 States, the Central Government and Delhi. These applications are addressed to the sample of public authorities as listed and also included district level public authorities. The objective was to assess the ease of accessing information through the use of the RTI Act. The applications filed asked for lists of RTI applicants and appellants that have filed applications in the respective PAs, along with data on the total number of applications and appeals the PA received since 2005. The application also requested details of the nature of responses, and copies of all the applications, the appeals, and orders of the first appellate authority.

To assess the ease of applications, the RAAG team tracked these applications for four months to asses speed of responses, nature of response, process of accessing information based on the response and finally, the first appeal process.

Some interesting findings emerging from the Urban Survey’s RTI filing process are :

Response rates – Nearly three fourths of the applications filed received responses.

However, the responses were somewhat slow in coming. In only a third of the cases where the responses were received, were received within the stipulated time period of 30 days.

Access to information – Of the total responses received, three-fourths furnished information directly or upon receiving payments for photocopying.

About half of the total applications filed received positive responses. However, many difficulties were encountered in payments for photocopying and other fee demanded.

Variations across Centre, State and District PAs:

Overall, the central government responded much more quickly and shared much more information than state governments. The Ministry of Environment and Forests and the Railways stand out for speediest responses on a large number of applications. Nearly %th of the RTIs filed were responded to within 30 days and in over half the cases, information was furnished .

At the state level, Meghalaya stands out as the quickest, the most compliant, and also the politest amongst all the states surveyed, in responding to RTI applications – the largest percentage of responses with all the information requested were received from Meghalaya.

Overall, districts appear to be much slower, and much less efficient in responding to RTI applications than states. Meghalaya and Karnataka stand out for quickest responses at the district level.

PA level analysis suggests that the police department is overall the slowest to respond to RTI applications. The largest number of rejections also came from the police.

Interestingly most of these come from Delhi police. Revenue department and the women and child department come a close second to the police.

The RAAG Team’s practical observations on the RTI filing process:

In filing and appealing this vast diversity of applications, the RAAG team confronted four major challenges, which would certainly act to stymie RTI applications by those with less resources than we had.

Plethora of state rules and payment modes – As we discovered through hard experience, every State has its own set of RTI fee and mode of payment rules. In some States, the application fee is Rs.10 and can be paid by IPO; in others it is Rs.20 and can only be paid by Demand Draft or a court fee stamp issued in that particular state. Many of our applications were thus returned, and we had to pore over the plethora of differing State rules to ensure that we got it right the second time. Similarly, some States require that only treasury challans be used to pay for requested information, which required many trips to Government offices and officials, but without much success.

Poor information on First Appellate Authority – In many states, it proved very difficult, if not impossible, to find the name and address of the First Appellate Authority for the departments in which we filed RTIs. Almost none were listed on the departmental website, and many are not listed on the State RTI or SIC portal either. This was especially true at the district level.

Appealing deemed refusals – While the RTI Act binds the PlO to inform the applicant who the First Appellate Authority is in case of a rejection, the absence of publicly available FAA information becomes especially problematic in deemed refusals. Since, in such cases, the applicant receives no response at all from the PlO, he or she is constrained to appeal to the FAA. Thus, if FAA information is not easily available, it becomes a particular handicap in taking forward an application.

Unfamiliarity with the concept of a PlO – Confirming the rural survey finding that many PIOs do not know they are PIOs, many of our West Bengal district applications came back unopened. The post master’s remark was that the application had been rejected by the District Collectorate, because no such official existed.

Gender bias – Given the dominance of male applicants, PIOs appear to be convinced that anyone who files an RTI application MUST necessarily be male. Although RAAG RTI applications were all filed by women, unfailingly all the responses addressed us as ‘Mr.’ Equally amusing, but a poor reflection on attention to detail in public authorities, is that most responses completely miss-spelt and distorted our names, even though our RTI applications had all been typed to eliminate any such possibility. Bincy thus variously became Binoy, Vinay, Biceny, Binno, Bissy, etc. !

Part C : Other News

RTI query shows how undertrials suffer in jails:

All those who have been locked up while being completely innocent or have served more than half the prison terms as an under trial of the prescribed maximum sentence for their alleged crime are very ordinary people, without influence to raise a stink or money to hire pushy lawyers. To begin with they were all bewildered by the charge being brought against them, and then terrorised by the relentless grind of the wheels of justice, and finally left rotting behind bars with their spirit crushed. There are as many as 14 under trials and five convicts in judicial custody in just one jail of Tihar for the past five years because their appeal is yet to be heard by the Delhi High Court. These facts have come to light thanks to flurry of pointed questions under the Right to Information Act by a public-spirited lawyer, Manish Khanna.

Hawkers in Mumbai :

BMC wards give different answers to a query raised under RTI application like blind men trying to figure out the shape of an elephant. Jagdeep Desai wanted to know from the civic body as to what is the definition of ‘legal hawker’. But the confusing replies he got from different departments illustrate how clueless they are, and how lightly the BMC is treating the menace.

The Superintendent of Licence chose not to answer the query, stating that “the matter is sub-judice”. D/ ward and K/West Ward authorities replied that a hawker s a “person who sells goods kept on his head m ving around the street or road, and a legal hawke is one who has licence u/s.313 of the Mumbai Municipal Corporation Act”. S/Ward requested Desai to collect required information/ documents on payment of necessary charges from respective senior inspector (encroachment) of the ward while B/Ward and E/Ward replied that “the necessary information has already been furnished to you by the Superintendent of Licence”.

Desai is perplexed that while one BMC official did not answer the RTI query citing legal obligations, other replied readily. This is a complete contradiction. It seems that the information is being held back on purpose, because they have an issue with the definition of a legal hawker. Otherwise, all the replies to questions raised in the application should have been the same.

Chief Justice of India under RTI :

In many issues in past under this column, I have covered the huge controversy and litigation which was going on re. applicability of RTI Act to the office of CJI. After two years of stiff resistance, the Supreme Court finally replied to a Right to Information query, saying that its judges were declaring their assets to the Chief Justice of India (CJI).

President of India on RTI :

The 4th Annual RTI Convention hosted by Central Information Commission was inaugurated on 12th October by Smt. Pratibha Oevisingh Patil, the President of India. In her speech she stated:

“There is a fine balance which needs to be maintained between application under the Right to Information to public authorities and also ensuring that public authorities are not flooded with applications, some of them frivolous nature, which could over-whelm their ability to respond in time. She said that institutions were increasingly coming under” greater scrutiny and information was no longer the preserve of a few and there is greater emphasis on transparency of work and accountability”.

Elaborating on the initiatives taken by the government, minister of state for personnel, public grievance and pensions, Prithviraj Chavan said a policy on data sharing and accessibility was under’ active consideration’. He added, “A large amount of Scientific, technical and economic data is generated with public funds. The policy will encourage the data to be prepared in standardised, digital form so that all non-sensitive data can be shared for legitimate use”.

Statistics:

Number of RTI queries filed in Maharashtra

2006 1.4 lakh2007 3.16 lakh
2008 4.16 lakh 2009 2.5 lakh (6 months)

Projection by the end of 2009 around 5 lakh

17-18 lakh queries all across India

RTI’s 4th anniversary function on Monday, 12-10-2009 in Mumbai:

Private bodies should also be brought under the ambit of the Right to Information (RTI) Act, Bombay High Court judge justice Ohananjay Chandrachud said on Monday. “We cannot disempower our-selves, thinking that private bodies do not come under the purview of the Act.”

Celebrating four year of the sunshine act, RTI activists appealed that its scope be widened by including the private sector in the public service under it. “When the act is for fighting corruption, why not have it for the private sector too?” Ashok Rawat, an activist, asked.

“Disinvestment and deregulation have seen the government handing over public services to private hands. Now, private players are just as important as government. The RTI Act is not code to give information, but a constitutional right of a person to know about something. Right to Information is now beyond the scope of disclosure” said Chandrachud.

Introduced in 1766 in Sweden, the RTI Act has been adopted in 85 countries with varied levels of implementation. Activists also complained about the roadblocks public information officer (PIOs) created in their attempt to scuttle information. “The most common argument is that the information asked for does not come under the definition of the Act,” said Narayan Varma, a trustee of PCGT, an NGO working to spread the RTI awareness.

“Unfortunately, bureaucrats themselves train PlO how not to disclose information” said Rawat.

“One needs to understand that access to information is means to an end. This means should be eliminated as disclosure should be voluntary,” said Chandrachud.

“We are sensitising our officers. There is a need to institutionalise experience at the state level, jut as it had been at the Centre by making Shailesh Gandhi the Central Information Commissioner, so that there is a uniform pattern that will speed up the process of deliverance.”

Some NGOs, like Mahiti Adhikar Manch and PCGT, plan to set up a panel to ensure voluntary disclosure of information, which is part of the Act.

BCAJ Admin

ORDERS OF CIC

Right to Information

PART A: ORDERS OF CIC

Section 18 of the RTI Act

A very sad and no doubt unusual and unprecedented case has
come up before CIC Shailesh Gandhi.

The appellant, Mr. Surinder Puri of Delhi, sought certain
information from the Municipal Corporation of Delhi (MCD) regarding one
property, all around which there had been encroachment.

The PIO did not provide the information. First, the AA
directed the PIO to provide the requisite information as available on record.

In the second appeal, Mr. Surinder Puri had stated:

Correct and complete Information not provided within the
stipulated time. The PIO tried to shift the onus for providing the information
on some other public authorities and if the onus for providing this
information lay on them, why this application was not transferred to them.

In the decision dated 29.12.2009, the CIC directed the PIO
to give the appellant the length and breadth of the said plot after obtaining
it from the building department before 12 January 2010.The Commission also
directed the PIO to arrange a joint inspection of the area with MCD House Tax,
Building Department and Engineering Department with a copy of the sanctioned
building plan on 12 January 2010.

On 12.01.2010, the inspection became unruly. The Commission
received a letter dated 28.01.2010 from the Appellant Mr. Puri wherein he
alleged physical assault and brutal manhandling of two office bearers of the
Public Grievance and Welfare Society (PGWS), who were among the other members
who accompanied the Appellant for the joint inspection. In the letter, it has
been stated that the inspection was initiated in the presence of MCD
officials. According to the letter, there were seven police constables of
Sarai Rohilla Police Station who were also present at the inspection site. The
MCD officer is said to have only allowed two of the society members to inspect
the property site. Therefore, only two office bearers of PGWS went in for the
inspection on the Appellant’s behalf. It has been alleged that while the
inspection was on, Municipal Councilor Mr. Satbir Singh, along with his
accomplices (reportedly son and nephew), came with a mob of 30 people and
inflicted a brutal physical assault with an iron rod on one office bearer,
which is said to have caused him a fracture on the nose bone and that the
second office bearer was slapped and bullied. Furthermore, it has been alleged
that when an attempt was made to file a FIR (First Information Report) against
the said attack, the case was only registered after the society lodged a
complaint with the CMM (North).

On the basis of the above letter, the Commission registered
a complaint in accordance with Section 18(1)(f) of the RTI Act.

The Commission writes:

If the allegations made by the Complainant were true, it
meant that persons lawfully exercising their rights under the Right to
Information Act were being unduly harassed and physically assaulted. The
allegations that the assault was carried out in the presence of police and MCD
officials led to suspicion of a probable collusion. The Commission has been
given the powers to initiate an enquiry in a complaint under Section 18(2) of
the RTI Act, when enquiring into a complaint under Section 18(1). Section
18(3) of the RTI Act also confers the powers of a Civil Court on the
Commission when it is inquiring into any matter under Section 18.

Considering the gravity of the matter, the Commission wrote
letters dated 18.02.2010 to the Commissioner of Police (CP) and Commissioner
of the Municipal Corporation of Delhi (MCD), informing them about the matter
and requesting them to inquire into the matter and submit a report to the
Commission before 24.02.2010.

The CP instead of inquiring into the matter and submitting
a report, filed a writ petition in the High Court against the direction of the
Commission. In the writ petition, the CP has challenged the power of the
Commission, stating that the Commission has ‘over reached the powers’
conferred on it under the RTI Act and the letter sent by the Commission to the
CP is bad-in-law. The Commissioner of MCD did not care to reply even despite
telephonic reminders to his office.

The Commission decided to call some of the people present
to understand whether a RTI Applicant was deliberately obstructed from
undertaking inspection, which had been ordered by the Central Information
Commission and whether the assault on the two persons was with the intention
of preventing them from undertaking inspection. It summoned 7 different
officers who were present on 12.01.2010 and the appellant and his
representatives.

During the inquiry, each person deposing before the
Commission was asked to come in one at a time and once they had finished their
account, they were allowed to sit and listen to the deposition of the others.
Each person was asked to narrate the sequence of events on the day of
inspection, starting from the time that they all met at the MCD Office and
then proceed to the inspection site and subsequent events. At the end, the
persons who had deposed were allowed to give their clarifications or
contradict the statements of the others.

The statements of 6 persons who were present were recorded
and two more were called in later, so 8 in all. The CIC made the following
observations on points common to the deposition of all:

as some tension was
anticipated, both parties had requested the Police to be present during the
inspection.

crowd had gathered
before the Inspection could be completed and persons were asking questions
to the representatives of the Appellant.

some level of
altercation took place either at the inspection site or just away from it on
the Main Road. Even the MCD officials have admitted that there was some
pushing around and arguments.

the inspection could
not be completed due to the presence of the crowd. It was completed at a
later point in the absence of the Appellant or his representatives but in
the presence of a larger Police force.

    Mr. Ajay Kumar (one representative of PWGS) had sustained injuries and had been taken to Hospital by the Police.

The Commission made the following Decision:

The Commission finds from the statements that Po-lice personnel were present during the whole epi-sode and were either unable to or unwilling to take any action to intervene and disperse the crowd. This points to a very sorry state of affairs in terms of law and order. Trouble had been anticipated at the site and when it did start, the Police was unable or un-willing to take any action. The incident took place on 12 January, 2010. The Commission requested for a report on the incident before 24.02.2010, which the Police has not submitted. Now it is over ten weeks since the incident occurred, but the police did not give a report but instead deemed it a fit case to op-pose in a writ petition.

Complaint is allowed.

The appellant was prevented from carrying out the inspection to arrive at the facts. MCD officers and police officers were present but could not ensure that the inspection could be carried out.

With regard to the allegations of physical assault, the Commission finds that offences under the Indian Penal Code may have been committed in the pres-ent case against the representatives of the Appel-lant. However, the Commission as a statutory body does not have the powers to investigate allegations against offences under the Indian Penal Code or take action under the Code of Criminal Procedure. When such incidents are brought to the notice of the Com-mission, the Commission can initiate an inquiry at its level under Section 18(2) of the RTI Act and it has to rely on external agencies such as the Police and the MCD to undertake part of the inquiry and assist the Commission. As a statutory body, the Commission can work effectively only if it gets cooperation from other Departments of the Government, especially those which are trained in investigative methods. If statutory bodies such as the Delhi Police and the Municipal Corporation of Delhi decide not to assist the Commission in the performance of its statutory functions, the Commission will find it difficult to dis-charge its duties under the RTI Act.

Neither the Commissioner, MCD, nor the Commis-sioner, Delhi Police, have extended cooperation in the conduct of this inquiry. The Commission expresses the hope that the Police and the MCD will do their duty and help statutory authorities in performing their functions, failing which it would not be possible for citizens to exercise their fundamental right to information to ‘contain corruption and to hold Governments and their instrumentalities accountable to the governed’, which is the objective and promise of the Right to Information Act 2005.

Citizens rightly expect that the Information Commission must ensure their protection when they are using Right to Information to unearth and challenge illegal activities. It is with deep concern that I admit that I am unable to take any further action as my powers under the Act have now been rendered completely ineffective by the non-cooperation of the Police and the MCD. I hope that all statutory agencies will cooperate to ensure that the rule of law prevails.

(Mr. Surinder Puri, Delhi vs. PIO, MCD, Delhi: Decision No. CIC/SG/C/2010/000163/7237 dated 25.03.2010)

   Section 4 of the RTI Act

As stated often in my articles, Section 4 of the RTI Act is the mother of all Sections in the Act. If the obligations on public authorities cast therein are complied with, the need to furnish RTI applications can get considerably reduced. In this case, even the State Bank of India, the largest bank of the country, has not complied with its obligation under this Section.

The Order states:

During the hearing, it was brought to our notice that the State Bank of India as a public authority has not yet published details about the monthly remuneration received by each of its officers and employees, including the system of compensation as provided in its regulations in terms of the mandatory obligations cast on it under Section 4(1)(b)(x) of the RTI Act. If it is true, it is unfortunate; a major public authority like the SBI is expected to be a trendsetter in implementing RTI Act. We direct the CPIO to bring it to the notice of the authorities in the SBI immedi-ately to ensure that such details about each of its officers and employees are immediately put up in the public domain through its website at all lev-els and certainly not later than a month from the receipt of this Order.

The Order also directs the PIO to furnish information on the following points to the applicant, Shri Chetan Kothari, which was denied by the PIO and the AA:

   Monthly salary and wages paid to each employee, by name, in the State Bank of India, Mumbai Zone as at the end of 31st March 2009; [This information should be given in electronic form in a CD as the number of employees might be too large]

   Total number of safe deposit lockers in the Mumbai Zone as on the above date; and

   A categorical statement to the effect that the names of the CPIO and the Appellate Authority have been duly displayed in every branch of the Mumbai Zone.

It may be of interest to the readers that CIC conducts many appeals by video conferences. This one was heard through video conferencing. The Appel-lant was present in the Mumbai studio of the NIC whereas the Respondents were present in the Bandra (Mumbai) studio.

(Shri Chetan Kothari, Mumbai vs. CPIO, State Bank of India, Bandra Kurla Complex, Mumbai: CIC/SM/ A/2009/001479 decided on 01.04.2010)

   Postal Order

In spite of such a mode prescribed in the Rules, the CPIO of UCO Bank refused to accept the application since it was accompanied with a postal order by way of application fee and declined to provide the information. The AA endorsed the decision of the CPIO. CIC Satyananda Mishra in his Order writes:

“We strongly object to the decision of the CPIO sup-ported by the order of the Appellate Authority that the Indian postal order is not an accepted mode of payment of application fee under the RTI Act. The rules framed by the Government of India in this regard are quite clear and it is unfortunate that nearly 3* years after the Indian postal order was introduced as a method of payment, these authorities should be rejecting an application from a citizen by disal-lowing his postal order. During the hearing, the Respondents expressed regrets on behalf of the CPIO and the Appellate Authority but that hardly helps. The rejection of his application and, later; his appeal on the sole ground that he had decided to pay his application fee by postal order has caused avoidable harassment and financial loss to the Appellant. We, therefore, direct the CPIO to explain in writing if he has reasonable cause for his decision to disallow the application of the Appellant. If we do not receive his explanation within 15 working days from the receipt of this order, we will proceed to consider impos-ing the maximum penalty of Rs. 25,000 on him for having denied the information on thoroughly wrong grounds.

The appellant in this appeal had also submitted that the UCO Bank had only one Appellate Authority lo-cated in their corporate office in Kolkata and very few CPIOs in the field making it extremely difficult for information (* Actually it is nearly 4 years) seek-ers to approach these authorities for information. Besides, it appears that the Appellate Authority does not give any opportunity of hearing to the Appellants before deciding the appeals. The Respon-dents admitted that indeed there was only one Appellate Authority for the entire Bank having thou-sands of branches all over India and that the Appellate Authority decided appeals without providing any opportunity of hearing to the Appellants. This is both unfortunate and unacceptable; nearly 5 years into the implementation of the Right to Informa-tion (RTI) Act, a responsible public authority like the UCO Bank must not treat this law with such casual abandon. Section 5 (1) of the Right to Information (RTI) Act clearly mandates every public authority to appoint as many CPIOs in all administrative units or offices under it as may be necessary to provide information to persons requesting for the information under this Act. Similarly, Section 19(1) requires that such officers senior in rank to the CPIOs should be identified as Appellate Authority for receiving and deciding appeals. We expect that the UCO Bank shall, within a month from the receipt of this Order, designate larger number of CPIOs to cater to the information need of the citizens and designate more appellate authorities, preferably, in the Zonal offices, so that Appellants do not have to go all the way to its corporate office for filing appeals. We also direct the Appellate Authority to provide an opportunity of hearing to the Appellants before passing any order on their appeals.

                                 Part B: The RTI ACT

On January 20, 2010, the Ministry of Personnel, Public Grievances and Pensions [Department of Personnel & Training (DoPT)] issued one Office Memorandum (OM) on the subject of maintenance of records in consonance with Section 4 of the RTI Act.

In part A, I have summarised one Order on Section 4 and commented on its importance. In Part 3, the letter of SCIC talks of Section 4. I request all readers to bring this OM of DoPT to the notice of public authorities they are connected with such as PSUs, Nationalised Banks, Government-owned insurance companies and so on. Said OM reads as under:

The Central Information Commission in a case has highlighted that the systematic failure in maintenance of records is resulting in the supply of incomplete and misleading information and that such failure is due to the fact that the public authorities do not adhere to the mandate of Section 4(1)(a)of the RTI Act, which requires every public authority to maintain all its re-cords duly catalogued and indexed in a manner and form which would facilitate the Right to Information. The Commission also pointed out that such a default could qualify for payment of compensation to the complainant. Section 19(8)(b) of the Act gives power to the Commission to require the concerned public authority to compensate the complainant for any loss or other detriment suffered.

   Proper maintenance of records is vital for the success of the Right to Information Act but many public authorities have not paid due attention to the issue despite instructions issued by this Department. The undersigned is directed to request all the Ministries/Departments, etc,. to ensure that requirements of Section 4 of the Act in general and clause (a) of sub-section (1) thereof in particular are met by all the public authorities under them without any further delay.

At this stage, I may also refer to THE PUBLIC RE-CORDS ACT, 1993 (PRA), which regulates the man-agement, administration and preservation of public records of the Central Government, Union Territory Administrations, public sector undertakings, statutory bodies and corporations, commissions and committees constituted by the Central Govern-ment or a Union Territory Administration and mat-ters connected therewith or incidental thereto. The rules (THE PUBLIC RECORDS RULES, 1997) are also enacted under this PR Act.

Under the said Act and Rules also duty is cast on all entities as referred to above (and which are also entities covered under the RTI Act) to regulate etc. of the public records (extensively and in inclusive manner defined) and to furnish an Annual Report to the Director General or head of the Archives in the pre-scribed form.

It may be noted that this Act also provides the regulations for destruction of Public Records. Very often, in response to the request to the PIO to provide some records, the reply is received that the same are destroyed. The applicant then should ask whether compliance is made to the PR Act and the PR Rules. It may be noted that penalty for contraventions is very heavy provided in Section 9 of PR Act as under:

Whoever contravenes any of the provisions of Section 4 or Section 8 shall be punishable with imprisonment for a term which may extend to five years or with fine which may extend to ten thousand rupees or with both.


   Part C: OTHER NEWS

   Important Pronouncements by the Commission:

(Continuing from January 2010)

When Shailesh Gandhi, CIC, was in the BCAS of-fice some months ago addressing RTI activists and journalists, he distributed a compilation of 8 important and profound pronouncements by the Central Information Commission. Herewith 7 & 8 (the last two) thereof:

7. Third Party

It is clearly stated in Section 11 (1) that ‘submission of third party shall be kept in view while taking a decision about disclosure of information’. Section 11 gives a third party an opportunity to voice its objections to disclosing information. The PIO will keep these in mind and denial of information can only be on the basis of exemption under Section 8 (1) of the RTI Act.

The test of public interest is to be applied to give information, only if any of the exemptions of Section 8 apply. Even if any exemption applies, the Act enjoins that if there is a larger public inter-est, the information would still have to be given. There is no requirement in the Act of establishing any public interest for information to be obtained by the sovereign Citizen; nor is there any require-ment to establish larger Public Interest, unless an exemption is held to be valid. Insofar as looking at the credentials of the applicant are concerned, the lawmaker has categorically stated in Section 6 (2), ‘An applicant making a 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.’ Since the law categorically states as above, it is clear that the credentials of the applicant are of no relevance, and are not to be taken into account at all when giving the information. The truth remains the truth and it is not important who accesses it. If there is a larger Public Interest in disclosing a truth, it is not relevant who gets it revealed.

If the third party objects to giving the information, the Public Information Officer must take his objec-tions and see if any of the exemption clauses of Sec-tion 8 (1) apply. If any of the exemption clauses ap-ply, the PIO is then obliged to see if there is a larger Public interest in disclosure. If none of the exemp-tion clauses applies, information has to be given.

8. Assets of Public Servant

The Commission can allow denial of information only based on the exemption listed under Section 8 (1) of the Act.

Under Section 8 (1) (j), information which has been exempted is defined as:
“Information which relates to personal information, the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the cause may be, is satisfied that the larger public interest justifies the disclosure of such information:”

To qualify for this exemption, the information must satisfy the following criteria:

   1. It must be personal information

Words in a law should normally be given the meanings given in common language. In common lan-guage we would ascribe the adjective ‘personal’ to an attribute which applies to an individual and not to an Institution or a Corporate. From this it flows that ‘personal’ cannot be related to Institutions, organisations or corporates. (Hence we could state that section 8(1)(j) cannot be applied when the in-formation concerns institutions, organisations or corporates).

    2. The phrase ‘disclosure of which has no relationship to any public activity or interest’ means that the information must have some relationship to a public activity.

Various Public Authorities in performing their func-tions routinely ask for ‘personal’ information from Citizens, and this is clearly a public activity. When a person applies for a job, or gives information about himself to a Public Authority as an employee, or asks for a permission, license or authorisation, all these are public activities. The information sought in this case by the appellant has certainly been obtained in the pursuit of a public activity.

We can also look at this from another aspect. The State has no right to invade the privacy of an individual. There are some extraordinary situations where the State may be allowed to invade the privacy of a Citizen. In those circumstances, special provisos of the law apply, always with certain safe-guards. Therefore it can be argued that where the State routinely obtains information from Citizens, this information is in relationship to a public activity and will not be an intrusion of privacy.

Therefore we can state that disclosure of information such as assets of a Public Servant, which is routinely collected by the Public Authority and routinely provided by the Public Servants, – cannot be construed as an invasion of the privacy of an individual. There will only be a few exceptions to this rule, which might relate to information which is obtained by a Public Authority while using ex-traordinary powers such as in the case of a raid or phone-tapping. Any other exceptions would have to be specifically justified. Besides, the Supreme Court has clearly ruled that even people who aspire to be public servants by getting elected have to declare their property details. If people who aspire to be public servants must declare their property details, it is only logical that the details of assets of those who are public servants must be considered to be disclosable. Hence the exemption under Section 8(1)(j) cannot be applied in such a case.

   RTI Act amendments:

Very interesting and significant exchange of corre-spondence has taken place between PM and Mrs. Sonia Gandhi: Times of India on April 10, 2010 has made following report:

Against PM wish, Sonia stood ground on ‘no RTI changes’

Congress Chief Sonia Gandhi firmly resisted changes to the RTI Act despite the government wanting to tinker with the transparency legislation, an RTI query reveals.

Amendments to the RTI Act have been in the news for some time with activists protesting against the government’s move to exempt disclosure of Cabinet papers, internal discussions and judiciary. Sonia, in a letter dated November 10 had voiced this concern and said the government should “refrain from accepting or introducing changes in the legis-lation… in my opinion there is no need for changes or amendments”.

The letter, accessed under RTI by activist S C Agar-wal, said, “It will of course take time before the momentum generated by the Act makes for greater transparency and accountability in the structures of the government. But the process has begun and it must be strengthened… It is important, therefore, that we adhere strictly to this original aims and re-frain from accepting or introducing changes in legislation on the way it is implemented that would dilute its purpose. In my opinion, there is no need for changes or amendments. The only exceptions permitted, such as national security, are already well taken care of in the legislation.”

In response, the PM on December 24 stood his ground that certain issues could not be dealt with without changes in the Act. Among the issues cited by the PM were that the CJI had pointed out that the “independence of the higher judiciary needs to be safeguarded in the implementation of the Act. There are some issues relating to disclosure of Cabinet papers and internal discussions”.

The PM assured that while the government was tak-ing steps to improve dissemination of information and training of personnel, “there are some issues that cannot be dealt with, except by amending the Act”. “The Act does not provide for the constitution of benches of the CIC though this is how the busi-ness of commission is being conducted,” the PM had said.

   Editorial in Times of India of India of April 14, 2010

The RTI Spectre

The act is working. Don’t tamper with it

Few of our public institutions foster a culture of transparency and accountability. The Right to In-formation (RTI) Act was enacted in 2005 to change tradition of opacity and make governance a trans-parent process. The Act’s been working reasonably well and has become useful tool for a large cross-section of civil society to examine the workings of government. Since in the process institutional failings get exposed as well, there is resistance to the RTI culture from various quarters including the government.

Many public institutions that come under the ambit of the Act now want its radical edge blunted. Many state information commissions are starved of funds and personnel, which may lead to a collapse of the institution itself. Pleas to amend the Act must be seen in this context and handled with caution. As Congress president Sonia Gandhi wrote in her letter to the prime minister, “It is important that we adhere strictly to its (RTI Act) original aims and re-frain from accepting or introducing changes in the legislation on the way it is implemented that would dilute its purpose.” Sonia’s intervention has come in the wake of a letter written by the Chief Justice of India (CJI) to the Prime Minister. The letter states that information concerning the functioning of the judiciary should be exempted from the scope of the Act to safeguard its independence.

The CJI’s apprehensions about possible misuse of in-formation of “a highly confidential and sensitive nature” are valid. But should, for example, information on in-house inquiry proceedings regarding allegations against sitting judges or appointment of judges in high court be considered sensitive and barred from the public eye? Should not the apex court be in the forefront of an initiative to make the working of public institutions transparent? The push to amend the RTI Act came first from the government itself. Last year, the government proposed amendments to the Act so that “frivolous and vexatious” applications could be discarded and disclosure of file notings exempted. The amendments failed to pass muster with state information commissioners, but they could be revived at any time.

To give teeth to the RTI legislation, the government must beef up infrastructure at the information commissions. More personnel and infrastructure must be created fast at the commissions to avoid a break-down. There are already more than 11,000 cases pending with the Central Information Commission. The situation is worse in many states. The focus must be on a climate of openness, rather than trying to restrict the scope of RTI Act.

   Right to Information – A route to good Governance

The book under above title was published by BCAS Foundation in 2007. Its updated, enlarged and re-vised edition authored and compiled by Narayan Varma was launched by BCAS on 25th March by Shri TN Manoharan, former president of ICAI and the director of Satyam Computer Services Ltd and now Padma Shri.

Same was re-released by Public Concern for Governance Trust (joint publishers of this edition) on 7th April through the hands of Dr. Suresh Joshi, the Chief Information Commissioner, Maharashtra. The function was extensively covered by the Press. Hereunder is what DNA reported on 08.04.2010:

   RTI replies may soon be at your doorstep in 7 days State information commissioner will write to CM for faster disposal of cases

If State information commissioner Suresh Joshi has his way, information sought under the Right to Infor-mation (RTI) Act will be made available to citizens in seven days, and not the stipulated 30 days.

Speaking at the launch of RTI activist Narayan Varma’s book Right to Information – A Route to Good Governance on Wednesday, Joshi said he will be writing to the chief minister and the chief secre-tary asking for a change in the Act to ensure faster dissemination of information.

Joshi said that in only 15% of the total applications, information officers may need more than a week to respond. “There is no reason for all applicants to wait for a month to get a reply,” Joshi said, adding, “I will also ask the chief minister and chief secretary to compliment officers who give information within seven days.”

Talking about the success of the RTI Act, Joshi said corruption has gone down by 20%, “The RTI Act has increased accountability and transparency. Bureau-crats cannot shirk their responsibilities anymore.”

He said the government needs to appoint senior officers as first appellant authorities (FAA). “If there is better work at that level, 50% of our work will re-duce,” he sad.

Talking about Varma’s book, Joshi said it was a one-stop guide for all RTI related queries. The book contains information on prominent cases and judgments given by various commissioners. “The idea is not only to create awareness, but also to help peo-ple understand the Act,” Varma said.

   Information under RTI now in just 15 days

True to his words as reported in above, Dr. Joshi wrote to CM on April 8. Hereunder news item in In-dian Express of 22.04.2010:

CITIZENS now may not have to wait for 30 days to get details under the Right to Information Act. In a bid to make Maharashtra progressive by setting a good trend in RTI, State Information Commissioner Suresh Joshi has requested Chief Minister Ashok Chavan to issue a resolution to make information available in 15 days.

With the State receiving 4.4 lakh applications from citizens – considered higher than in the US and Mexico – and disposal rate of more than 95 percent Joshi said it was about time that Maharashtra moves to giving information earlier than the 30-days limit.

In 2002, before the Central Government accepted the Act, Maharashtra had its own RTI Act, which required providing information within 15 days.

Therefore, there shouldn’t be a problem in going back to the original process. “It is not difficult to give details or documents in 15 days as everything is available in the department itself. Officials can send letters to applicants in seven days time to take the information after paying necessary amount and by the 15th day they can hand over the detail,” Joshi said.

The letter – a copy of which is available with The Indian Express written to Chavan on April 8 – states that a Government Resolution should be issued urging officials to try hard and give information in 15 days. Chavan is expected to reply to the letter in the next few weeks.

Although officials doing so cannot be given monetary incentive, head of departments could be suggested to take this note while considering promotions, the letter states.

“There are Confidential Reports prepared for officers by their seniors and they can mention that due to exemplary services in disposing RTI queries he could be considered for accelerated promotion,” Joshi said. While amendment to this extent in the act will require Center’s approval, Joshi said that Maharashtra can experiment and see if the effort is successful.

“If information could be given in 15 days and all departments follow the rule instead of waiting for 30 days, then the state can set an example and then central government could take the lead and make a similar suggestion for other states,” Joshi said.

While Joshi is happy with the massive use of the RTI by citizens he has expressed dissatisfaction in section 4 of the act which requires voluntary disclosure of information on part of government.

NSE is a Public Authority

High Court of Delhi in a decision dated 15th April, 2010 have held that NATIONAL STOCK EXCHANGE OF INDIA LIMITED is a “public authority” as it is an “authority or institution of self government’ constituted or established by notification or order issued by the appropriate Government. It is also held that the petitioner is controlled by the appropriate Government.

Detailed reporting of this landmark decision will be made in the next month’s article. In Mumbai, we are moving Bombay High Court, where Writ petition is pending, to decide similarly in the matter of BSE.

BCAJ Admin

ORDERS OF CIC

Right to Information

Section 2(f) of the RTI ACT: INFORMATION Section 2(f) which defines the word
‘information’ provides as follows.

In this Act, unless the context otherwise requires.

(f) ‘Information’ means any material in any form,
including records, documents, memos, e-mails, opinions, advices, press
releases, circulars, orders, logbooks, contracts, reports, papers, samples,
models, data material held in any electronic form and information relating
to any private body which can be accessed by a public authority under any
other law for the time being in force;

“According to the Commission, ‘information’ which is
requested u/s.6(1) of the RTI Act refers to only that information which is
available on record. Such information cannot be created. The terms ‘opinions’
and ‘advices’ which are brought within the purview of ‘information’ u/s.2(f) of
the RTI Act are opinions or advices that are already present on record. It does
not mean that if the opinion or advice of the public authority is sought
u/s.6(1) of the RTI Act, the said opinion or advice shall have to be created. It
must be an opinion or advice which is already on record. The creation of
information by the public authority every time such information is sought
u/s.6(1) of the RTI Act shall render governance impossible. However, the
Commission has observed that there are certain practices within a department
that are peculiar to that department. Such practices or understanding within the
department may not be present in a recorded form. Where information sought
u/s.6(1) of the RTI Act pertains to such general practices or understanding,
then the same must be provided to the applicant, even if such practices or
understanding are not specifically on record.”

The Appellant in the case before the Commission had cited one
order of the Supreme Court of India in the matter of Khanapuram Gandaiah v
Administration Officer & Ors. 2010(1) ID 287 (SC). The Supreme Court of India,
while dismissing the petition, interpreted section 2(f) of the RTI Act and
observed that an applicant u/s.6 of the RTI Act can get any information which is
already in existence and accessible to the public authority under law. The
applicant is entitled to get a copy of the opinions, advices, circulars, orders,
etc but he cannot ask for any information as to why such opinions, advices,
circulars, orders, etc have been passed, especially in matters pertaining to
judicial decisions.

Note: I have not covered in this reporting, the facts of the
case as same are not required to bring out the analysis and interpretation
made of the provisions of Section 2(f).

[Dr. Jitendra Nath Gupta vs. PIO & SDM (Civil Lines):
Decision No. CIC/SG/A/ 2010 / 00 2398/ 9878 of 22.10.2010] [2010(2) ID 593 (CIC,
DELHI)]

? Mr. Virajoo Kumar had asked Telecom Regulatory Authority of
India (TRAI) to provide him certain information in respect of Mobile no.
09304549785..

PIO of TRAI replied to inform the applicant that no such
information was being maintained by TRAI.

During the hearing before the Commission, the representative
of TRAI submitted that TRAI can call for such information from the service
provider as it needs for its own purposes by passing an order in writing but the
information requested for by appellant is not wanted by TRAI and therefore, it
is not bound to call for this information from the service provider.

As per the clause 2(f), information also includes
‘information relating to any private body which can be accessed by a public
authority under any other law for the time being in force.’ In other words, if
TRAI has authority under any law to access information from Reliance Company, it
can access that information for onward transmission to the information seeker.
According to Shri. Abraham, u/s.12of the TRAI Act,1997, TRAI has the authority
to call for information from the service provider by passing an order in writing
but this information should be such as is needed by TRAI for its own purpose. In
other words, according to him, TRAI cannot seek information from a private
entity for servicing the RTI Act.

Hereunder I reproduce paras 6 to 9 of the
decision –

6. Clause (a) of section 12(1) is reproduced
below –

‘(a) call upon any service provider at any time to furnish in
writing such information or explanation relating to its affairs as the Authority
may require’

Shri Abraham lays emphasis on the last 05 words of the above
clause viz. ‘as the Authority may require.’ It is his interpretation that this
expression means that TRAI can call for information only when it needs it for
its own purposes and not for the purposes of supplying it to the information
seeker under the provisions of the RTI Act.

7. We are afraid, the construction put on clause (a) by Shri
Abraham is not correct. According to us, the true meaning of the expression ‘as
the Authority may require’ is ‘as the Authority may direct’. In other words,
TRAI can call for such information from a private entity as it needs for its own
purposes as also for the purpose of servicing the RTI Act.

8. The above interpretation also finds support in the
Judgement dated 25.9.2009 of the Delhi High Court in WP (civil) No 765 of 2007 (Poorna
Prajna Public School Vs CIC) wherein High Court favoured wider interpretation of
the word ‘information’. The relevant part of para 16 of the judgement is
extracted below: –

“Further, information which a public authority can access
under any other law from private body is also ‘information’ u/s.2(f). The public
authority should be entitled to ask for the said information under law from the
private body. Details available with a public authority about a private body are
‘information’ and details which can be accessed by the public authority from
private body are also ‘information’ but the law should permit and entitle the
public authority to ask for the said details from a private body”.

DECISION

9. In view of the above, we are of the opinion that the
appellant is legally entitled to seek the information from TRAI u/s 2(f) of the
RTI Act and TRAI is mandated to call for such information from the service
provider (Reliance Company in this case) as mentioned hereinabove and furnish
the same to the appellant. We respectfully disagree with the view taken by other
Single Benches of the Commission.

[Virajoo Kumar vs. TRAI: Decision No. CIC/DS/ C/
2010/00 332 decided on 25.10.2010] [2010(2) ID 661(CIC DELHI)]

PART B: The RTI Act, 2005

In the last issue (Feb 2011) I had reported on the directions issued by the Central Information Commission (CIC) on 09.12.2010 to all the Central Government’s Public Authorities through the Min-istries & Departments of Government of India. It appears that landmark initiative taken by the CIC is not bearing good fruit.

Of the 1,600 public authorities (government departments, apex bodies, autonomous organisations and ministries) listed by the Commission, only 125 have obeyed its direc-tive and appointed transparency officers. The macro picture at the central level is no better with only 34 of 70 odd ministries and apex bodies appointing transparency officers. The ministries of finance, home and culture and the Prime Minister’s Office have done nothing except expressing their intention to appoint a transparency officer.

The Department of Personnel and Training (DoPT), the parent department of the Commission, has taken exception to the directions and said that by giving such directions to departments, CIC has overstepped its brief. In its letter to the authority, DoPT has said that by appointing transparency officers CIC was trying to ‘create another bureaucracy’.

CIC, however, feels that it is only trying to assign another responsibility to the same set of bureaucrats present in the government departments. Speaking to ET, Chief Central Information Commissioner Satyanand Mishra said, ‘We are examining the matter. The Com-mission does not have the powers to withdraw any of its orders. At the same time we don’t need to justify our orders. If any department has an objection it can only take legal recourse. Over the past few years in our deliberations as Information Commissioners, we had found that had the Ministries voluntarily disclosed information many applications would not have been filed. This is why the directive was given.’

Information on & Arround

Gandhigiri for getting information:

Four members of Deshbhakti Andolan distributed roses to employees at the Charity Commissioner’s office in Worli one day in early February.
Deshbhakti Andolan resorted to Gandhigiri after the Charity Commissioner’s Office, in response to a query filed under the Right to Information Act by one of the andolan members, said it had lost pertinent files and papers.
Charity Commissioner on complaint made has assured that the file would be traced and information shall be provided.

Working at the Commissions:

The Public Cause Research Foundation has analysed 79,813 decisions passed by the CICs and SICs across the country. The researchers found that in 59,631 cases, the information was delayed, but only 1,896 officials were punished. The report said had these penalties been imposed, the exchequer would have got nearly Rs. 86 crore during 2009-10. ‘Twenty-six Commissioners across the country did not impose a single penalty in the whole year’

Working at crematoria in Mumbai:

Activist Anil Galgali, who sought information under the Right to Information Act, said those who register the number of deaths in the crematoria were over-worked.
There is a paucity of staff at the crematoria run by the municipal administration. With 36 posts lying vacant in the 46 crematoria run by the BMC, the delay in getting the last rites done has been inconveniencing citizens as well as the staffers.
The civic administration runs 46 crematoria, 7 cemeteries for Christians and 10 for Muslims. Apart from these, there are 125 privately-run ones and 11 powered by electricity.
Galgali said that after the RTI application was filed; the civic body issued a circular directing the authorities to fill the vacant posts.

PART D: RTI & SUCCESS STORIES

Normally, my article contains 3 parts as would be observed above. Since long, I have been wanting to add PART D: containing success stories of RTI. BCAS Foundation & Public Concern for Governance Trust (PCGT) (where at I am a trustee) run 4 RTI Clinics and on an average 50 individuals visit these clinics in a month and are provided RTI guidance and they submit RTI applications and appeals etc. We now intend to arrange feedback on their applications etc. As such very few come back to report the success they get or solutions that they achieve though many have satisfactory results.

Similarly, I believe many CAs make RTI applications etc and have success stories.

It is with the above belief that I intend to add PART D as above to my article. I request all read-ers to send their RTI success stories in brief. We would like to report them here. Please join in this crusade.

Hereunder one success story:

Extracts from Akila Maheshwari’s email of 23 Feb 2011:

Dear Narayan Varmaji:

First of all let me profusely thank you and other members of PCGT and BCAS for guiding my hus-band Dr. Shiban Charagi to fight his case through RTI. He was not only successful to get justice for himself but for others too, when a large Goverment Organisation like B.A.R.C. (Bhabha Atomic Research Centre) under Department of Atomic Energy had to strictly adhere to Supreme Court Judgements of 12th May 2008 by Justice Markandeye Katju.

BARC has started informing officers at all levels about their CR Grading by their Superiors. Also an officer can challenge his CR grading by refusing to put his signature on the intimation of the CR Grading.

My husband (who has the rare privilege of being listed in MARQUIS who is who in the world) was denied PRIS (Performance related incentives scheme) on the basis of poor assessment by his immediate supervisor. My husband has been a UNESCO Scholar. He was a one of the few employees (out of 15300) denied PRIS on poor CR grading. His CR was assessed in a hurry by a biased supervisor. He was also denied facilities for research work and manpower assigned to him removed and he was thereby harrased and humiliated.

My husband filed a letter of grievances to the PMO. This was forwarded to the Secretary DAE. Other reminders followed. But no action took place at ground level.

Later my husband took guidance from BCAS and was successful in getting a sum of over a lakh rupees (pre tax deduction). He was informed of his previous grade in CR. Later his grading was revised. After re-assessment PRIS sanctioned. This is the first such case in the history of the Department of Atomic Energy.

A battle that would have cost lakhs of rupees if taken up legally with CAT etc and would have been time consuming also and few years delay ended within two to three months of filing the RTI petition.

Hail RTI! Hail BCAS & PCGT and all the activists who made RTI a reality! RTI is a new pillar of Indian democracy.

BCAJ Admin

Orders of The Court

Right to Information

Part A: Orders of The Court

Public Authority : S. 2(h)

Only Public Authorities are obliged to provide information to
the citizens under the RTI Act. In January 2010 under the same title, I had
written :

“Many bodies operate primarily as service to the citizens of
India, though some of them may even be commercial or business bodies. When RTI
application is received by them, they take a view that RTI Act does not apply to
them. They contend that they are not ‘Public Authority’ (PA) as defined u/s.2(h)
the Act. Basically, such bodies need to be transparent and accountable not only
to those they deal with, but to the citizens at large.”

Matter came before the High Court of Delhi in writ petition
(civil) No. 4748 as to whether National Stock Exchange of India Ltd. is Public
Authority or not. The Full Bench decision of CIC as reported earlier in this
feature, had decided that NSE, BSE and all other stock exchanges are PA.

The definition of ‘public authority’ u/s.2(h) reads as under
:

‘public authority’ means any authority or body or institution
of self-government established or constituted :

(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature; (d) by notification issued or
order made by the appropriate Government, and includes any :

(i) body owned, controlled or substantially financed;

(ii) non-Government organisation substantially financed,
directly or indirectly by funds provided by the appropriate Government.

S. 2(h) of the Act consists of two parts. The first part
states that public authority means any authority or body or institution of
self-government established or constituted by or under the Constitution, by any
enactment made by the Parliament or the State Legislature or by a Notification
issued or order made by the appropriate Government. The second part starts from
the word ‘includes’ and states that the term ‘public authority’ includes bodies
which are owned, controlled or substantially financed directly or indirectly by
funds provided by the appropriate Government and non-Government organisations
substantially financed directly or indirectly by funds provided by the
ap-propriate Government.

It is obvious that the term ‘public authority’ has been given
a broad and wide meaning not only to include bodies which are owned, controlled
or substantially financed directly or indirectly by the Government, but even
non-Government organisations, which are substantially financed directly or
indirectly by the Government. The idea, purpose and objective behind the
beneficial legislation is to make information available to citizens in respect
of organisations, which take benefit and advantage by utilising substantial
public funds. This ensures that the citizens can ask for and get information and
know on how public funds are being used and there is accountability,
transparency and openness. Even private organisations, which are enjoying
benefit of substantial funding directly or indirectly from the Governments, fall
within the definition of ‘public authorities’ under the Act.

The Court then has extensively discussed the meaning of words
such as ‘authority’, ‘substantially financed’, ‘body’, ‘institution’, etc. While
interpreting ‘establish’ the Court noted : “Thus, it cannot be said that the
only meaning of the word ‘establish’ to be found in the sense in which an
eleemosynary or another institution is founded. The word ‘established’ need not
mean the initial foundation and it includes creation, confirmation or
recognition.

Then interpreting the word ‘constituted’, the Court stated
that the word ‘constituted’ is wider than the ‘established’. The word
‘constituted’ in S. 2(h) of the Act not only refers to the first act/acts by
which a body or organisation is set up, but a subsequent act or acts which will
have the effect of conferring on an organisation or a body, a special status and
constitute a ‘body’ with status of an ‘authority’ or institution of
‘self-government’ for the purpose of S. 2(h) of the Act. A private institution
or a body may be incorporated or formed by acts of private persons, but
subsequent statutory enactment or an order or Notification issued by the
appropriate Government can result in constitution and conferring upon the said
body, status of an ‘authority’ or an institution of ‘self-government’.

National Stock Exchange (NSE) is a company incorporated on
27-11-1992. Reading from the objects as per its Memorandum, it is noted that NSE
was incorporated for the purpose of establishing a stock exchange for which it
was necessary and required that they should be registered and/or recognised
under the Securities Act. It is only after the registration or recognition under
the Securities Act that NSE could carry out any of the functions or objects for
which it was incorporated.

Once a body or an institution has got its
recognition/registration under the Securities Act, it can operate and function
as a stock exchange and perform the said public functions. Registration or
recognition u/s.4(3) of the Securities Act by the Central Government has the
effect of constituting or establishing an ‘authority’ or an institution of
‘self-government’ as defined u/s.2(h).

NSE also satisfies requirements of the second part of the S.
2(h) of the Act. It is a ‘body’ which is controlled by Central Government. It is
not possible to accept that the control exercised is merely regulatory and is
not a pervasive and deep control.

The Court then writes :

“The Apex Court in Unni Krishnan J.P. v. State of Andhra
Pradesh held that when a private body carries on public duty, as in the case of
an institution whereby recognitions and affiliations are to be granted with
conditions, Stock Exchanges are also recognised subject to various conditions.
Unlike the companies registered under the Indian Companies Act, the bye-laws of
a Stock Exchange can be amended. Even for amendment in bye-laws, the Stock
Exchange requires approval of the Central Government. The Central Government,
having regard to the provisions of the 1956 Act, as noticed hereinbefore, can
interfere in the functions of the Stock Exchanges at every stage.”

The Court finally ruled :

In view of the aforesaid findings, it is held that the
petitioner is a public authority as it is an authority or institution of
self-government constituted or established by Notification or order issued by
the appropriate Government. It is also held that the petitioner is controlled by
the appropriate Government. The writ petition accordingly has no merit and is
dismissed. However, in the facts and circumstances of the case, there will be no
order as to costs.

The above is a single-Member judgment. The same is now
challenged.

Senior advocate Abhishek Manu Singhvi, appearing for NSE, contended that the single-Judge Bench had erred in bringing it within the ambit of the RTI Act, as it is neither a Government body nor financed by the Government.

A Division Bench headed by acting Chief Justice Madan B. Lokur stayed the operation of a single-Bench order which had on 15th April held that stock exchanges are ‘quasi’ governmental bodies which are bound to disclose information to the public under the transparency law.

Learned counsel accepts notice on behalf of the respondents 2 to 4. Notice may now be issued to the respondent No. 1. returnable on 3rd August, 2010.

[Writ Petition (Civil) No. 4748 of 2007 : National Stock Exchange of India Ltd. v. Central Information Commission & Others, decision dated 15-4-2010]

Part B: The RTI ACT

Fourth Annual Report of 2009 of Maharashtra State Information Commission

Some salient features of the Report :

The number of applications received in the State in the year 2006 were 1,23,000, in the year 2007, 3,16,000, in the year 2008, 4,16,090 and in the year 2009, 4,40,728. The number of applications in other big States is less than one lakh. At the international level the number of applications received in Britain are 90,000 and in Mexico 1,25,000, whereas the number of applications received by the Central Government are three and a half lakh. This indicates an overwhelming response to the RTI Act amongst the people of Maharashtra.

The Right to Information Act has brought about transparency, accountability and a sense of participation with the administration. It is necessary that administration, civil services, media, non-government organisations and all other sections of society accept these newer concepts. With these objectives we can attain good governance. The RTI Act is not only limited to administrative reforms, but it is seen as an instrument for upholding constitutional fundamental rights and human rights on a larger scale. Transparency and openness have now become acceptable principles. Supplying information is the rule, whereas denying information is the exception. Similarly the desire to eradicate corruption and fight against injustice is increasing amongst citizens. The Act has been successful in curbing corruption to some extent. This is not a small achieve-ment. The feeling of helplessness of the citizen has been reduced to some extent on account of this Act. The feeling that people’s representatives and Government officers are accountable is now a well-recognised fact amongst the general public. This Act has made available a level playing field to youth, old and retired persons. Many enlightened citizens, non-government organisations are prevailing on the Government to follow policies of public interest with the help of this Act. It can be said that this Act has given birth to a new era of proactive disclosure.

Supportive to S. 4 of the RTI Act where a public authority is required to suo moto declare certain specified information, there is a provision in the Chapter-III of the Maharashtra Government Employees Transfer Regulations and ‘Prevention of Delay in Discharging the Duties by Government Employees Act-2005’ to perform their duties as laid down in the Citizens Charter, laying down the levels of supervision and completing the Government work within the prescribed time schedule. There is also a penal provision for delay. If all these laws are read together it can be seen that legal framework has come in place in the State for good governance.

It was the first step to evolve the institutional mechanism for implementing the RTI Act. As a measure to reach more people as a part of this institutional frame work, the Government has set up Benches of the Commission at the regional level. Maharashtra is the only State in the country to take up such initiative. The Information Commissioners are deciding the cases at the district level, with a view to reach more and more citizens. As a part of this exercise Dr. Joshi, State’s Chief Information Commission-er, has personally heard 1200 appeals at Dhule, Jalgaon & Nashik.

The Commission has undertaken hearing of appeals through video conferencing. In 2009, S.I.C. Greater Mumbai has heard 913 appeals through video conferencing. The regionwise distribution is as follows :

Pune Region

…

274

Aurangabad Region

…

390

Nagpur Region

…

173

Amravati Region

…

Total

…

913

State Information Commission is of the view that RTI should be a part of syllabus also.

Some statistics :

In respect of 36
departments in Maharashtra Mantralaya :

There are 76747 PIOs and 19016 AAs

Number of RTI applications

received
by PIOs in 2009

440728

pending
as on 1-1-2009

57107

disposed
in 2009 and

information provided

439061

rejected

10893

Amount collected for

providing
information

in
2009

Rs.1,23,04,361

Number of first appeals
in 2009

Received
in 2009

43848

Pending
as on 1-1-2009

8694

Disposed
of in 2009

45953

Disposed
positively

40908

Rejected

5045

Pending
as on 31-12-2009

6589

Part C: OTHER NEWS

Marathi film on RTI : ‘Ek Cup Chya’

One can’t believe that two hours’ film in Marathi language with English subtitle on RTI can be so interesting and absorbing that one enjoys every minute thereof while watching it.

It is Ek Cup Chya, a movie about the Right to Information Act (RTI) as an effective tool against injus-tice (the cup of tea, a symbol of hospitality being the metaphor for corruption here).

The storyline is simple : a humble state bus conductor is slapped with a heavy electricity bill. Humiliated by the bureaucracy, the family embarks on their quest for justice using RTI. “The film operates at two levels,” informs the producer. “As a family drama and as pure information. A lot of research has gone into it with inputs from activists like Aruna Roy, Arvind Kejriwal etc.”

I was the chief guest at its screening at SP Jain Insti-tute of Management on April 28. Hopefully, I shall arrange its screening in due course for all interested in watching it.

Assets disclosure by MPs :

At least 70 Lok Sabha MPs, including former Prime Minister HD Deve Gowda, Rashtriya Janata Dal (RJD) chief Lalu Prasad and cricketer-turned-politician Navjot Singh Sidhu, have not yet disclosed details of their assets, a Right to Information (RTI) application has revealed.

The information was obtained in reply to an application filed by RTI activist Subhash Chandra Agarwal with the Lok Sabha Secretariat, seeking names of the members who have not disclosed details of their assets and wealth to the speaker.

“No action has so far been taken against defaulting members . . . . the reason for not taking any action against those Lok Sabha members who have not submitted details of assets and liabilities to the Lok Sabha speaker is the non-receipt of any complaint from any other member or any citizen of India in this regard as required under Rule 5(1) of the members of the Lok Sabha (Declaration of Assets and Liabilities) Rules, 2004.”

Legalising alterations to the buildings :

All is not fine with the fines collected by various civic authorities in Mumbai as an RTI application filed by activist Aaftab Siddique reveals.

The building proposal department in ward H West has collected over Rs.32.25 crore between 2007 and 2009 as fine to legalise alterations, after submitting the floor plans and drawings for approval. The health department has collected fines of Rs. 33.72 lakhs only between 2000 and 2009 while the licence department has collected barely Rs.3 lakhs in the same period.

Dues to retirees at BMC :

Data procured under RTI from various departments of the Brihanmumbai Municipal Corporation (BMC) show that dues to the tune of Rs.30.41 crore is yet to be paid to those who retired over the past four years.

RTI activist, Mr. Milind Mulay, had filed a query under RTI. When he checked with many officers at the ward level, they were not even aware of the number of people who have retired from their office in the last four years. He writes : “My mother, Vijaya Mulay retired as a nurse from the Marol Maternity Home, but the BMC made her run around for almost one year and a half and even after that, she did not get her dues. She then used the RTI Act to get her file moving.”

Red tape at BMC :

One Mr. Sharad Jadhav has been complaining about the irregularities in awarding a licence to a café located in one of the by-lanes of Dongri in south Mum-bai. Not getting a response, Jadhav finally wrote to the state Anti-Corruption Bureau (ACB). The bureau forwarded the complaint to the Municipal Commissioner for verifying the ‘allegation’ that the civic officials had turned a Nelson’s Eye to Sadguru Café’s illegal construction.

When no action was forthcoming from BMC, Jadhav filed an RTI application to find out about the status of his complaint. Reply received stated : “The BMC cannot give information on the subject as it never received any such letter from the ACB office.” After much criticism in the media, the police officials finally claimed that they had ‘found it’.

BCAJ Admin

Right to Information

Part A : Decisions of CIC

Mr. Mahavir Chopda of Mumbai addressed a few queries under
the RTI Act to NMIMS University of Vile Parle (W), Mumbai. The queries raised
included :

In how many instances did students cancel admission after
paying fees for admission to your FT-MBA Course ?

What amount of fees was retained by NMIMS (i.e.
collected but NOT refunded to students) due to the above cancellations ?

PIO refused to give the information and the First AA did not
reply to the appeal.

In the appeal before CIC, the representative of NMIMS
submitted that NMIMS is not a public authority. To decide on this issue, CIC
stated that two matters need to be determined :

a) Whether NMIMS is public authority by virtue of being a
deemed University.

b) Whether NMIMS is ‘substantially financed’ by Government.

In the hearing before CIC, Mr. Shekhar Gupta appeared on
behalf of NMIMS. He was asked to inform the Commission whether they have
received land at concession rates, or any other subsidies. He was also asked
whether donations received by the Institution are exempt from payment of Income
tax. If any of the concessions described have been availed of, he was to give a
Chartered Accountant’s certificate certifying the value of these concessions.

The respondent has stated that they are unaided Institution.
It was also argued that information sought is exempt u/s.8 (1)(d) of the RTI
Act. An affidavit was filed by Mr. Madhav N. Welling, Pro-Vice Chancellor of
NMIMS University dated 3 February, 2009 stating that the deemed University has
not obtained any land at concessional rates nor are the donations received
exempt from payment of Income tax.

‘Public Authority’ is defined u/s.2 (h) of the RTI Act. It
includes any authority or body or institution of self government established or
constituted . . . . by notification issued or order made by the
appropriate government.

Section 3 of the University Grants Commission Act, 1956,
which provides for the constitution of Deemed Universities reads as follows :

“The Central Government may, on the advice of the Commission,
declare by notification in the official Gazette, that any institution for higher
education, other than a University, shall be deemed to be a University for the
purpose of this Act, and on such a declaration being made, all the provisions of
this Act shall apply to such institution as if it were a University within the
meaning of clause (f) of Section 2.”

CIC noted : Thus, it is clear that a deemed University
gets this status by virtue of a notification issued by the Central Government.
NMIMS has been conferred the status of a deemed University by virtue of
notification No.F9-37/2001-U-3 dated 13 January, 2003 of the Government of
India. It clearly meets the criterion of sub-clause (d) of clause (h) of section
2 of the RTI Act. Hence, all deemed Universities are Public Authorities as
defined under the RTI Act. Since NMIMS University is also a deemed University by
virtue of a notification by the Central Government it is a Public Authority and
must furnish information as mandated by the RTI Act.

The Commission also held that provisions of section 8(1)(d)
do not exempt the information sought, as the said information is not of
commercial confidence, trade secrets or intellectual property the access to
which would harm the competitive position.

In view of the above view taken by the Commission, it held
that NMIMS University is a Public Authority as defined in the RTI Act and must
give the information sought by the appellant. “The information shall be supplied
by Mr. Madhav N. Welling, Pro-Vice-Chancellor of NMIMS University to the
appellant free of cost before 20 April 2009”.

[Mr. Mahavir Chopda vs. NMIMS University, Decision No.CIC/OK/A/2008/01098/SG/2550
dtd. 31.03.2009].

Part B : The RTI Act

Standing committee of the Parliament on RTI Act, 2005 :

In previous 4 issues of BCAJ, 10 items have been reported :

1. Level of awareness

2. Use and Misuse of the RTI Act

3. Reduction of 20-year period for keeping documents

4. Voluntary Disclosures

5. Changes in Section 8

6. Penalties

7. Use of the RTI Act and refusal of information

8. Grievance redressal

9. Application fee

10. Strengthening the RTI Act

Now 11th and final item is being reported :

Central Information Commission

The Central Information Commission has a huge backlog of cases, which seems to grow larger everyday. This is mainly due to the very poor support system and infrastructure provided by the government to the Information Commission. For the Commission to function effectively, they need to have access to a large number of qualified advisors who can do a preliminary analysis of each appeal and complaint, thereby making the task of the Commissioner easier.

Given the role the Commission has to play, especially in adjudicating on matters relating to the government, it is important that the Commission retains its intellectual and functional independence. This is difficult to do when departments and ministries of the government control their budgets. It is, therefore, important that the budgetary allocations for the Commission are voted directly by Parliament or, at the very least, are a separate plan head without being subsumed under any ministry.

It has been observed that various public authorities are not following many of the Commission’s orders and directions. Considering the role the Parliament envisaged for the Information Commission, this is essentially subverting the wishes of the Parliament.

Therefore, it is important that the Prime Minister’s office send out a strong letter directing all public authorities to strictly follow the orders and directions of the Information Commission, unless they have been able to obtain a stay from a competent court. The PMO should also set up a mechanism to review compliance on a monthly basis and the report of compliance should be discussed at the three monthly meeting of the earlier suggested RTI Council.

The manner in which Information Commissioners are selected is shrouded in secrecy and reeks of arbitrariness and patronage. Though the Act very clearly specifies that Information Commissioners must be ‘persons of eminence in public life’, for the government this has mostly meant retired civil servants. No effort has been made to open up the process of selection to public scrutiny, or even to share with the public the rationale for choosing the people who are chosen and not others. This is so even when there have been demands from the public to do so, as in the case of the recent appointment of four new information commissioners. It is ironic that while appointing the Central Information Commissioners under the RTI Act, the Government of India repeatedly violates both the spirit and the letter of the RTI Act, specifically Section 4(1)(c & d).

These sections specify that the government must, suo moto: “publish all relevant facts while formulating important policies or announcing the decisions which affect public; …. provide reasons for its administrative or quasi-judicial decisions to affected persons”. Surely the appointment of Information Commissioners is an administrative decision that affects all the people of India, and also an ‘important decision that affects the public’ !

Part C : Other News

Haj House in Mumbai

Replying to an RTI application filed by Mumbai-based social activist A. M. Attar in November 2008, the Haj Committee of India (HCI) has said that Haj House – the committee’s headquarters – does not belong to the Muslim community.

The popular notion that the massive Haj House near CST, built with donations from the community without any government funding, belongs to the Muslim community is wrong. The HCI, which falls under the ministry of external affairs (MEA), has clarified that Haj House is not a Muslim property and that it belongs to the MEA. Interestingly, The Haj Committee Act, 2002 does not clarify who owns Haj House.

“Muslims had contributed to the construction of the building. Apart from a couple of months when the Haj season is on, the building remains unused. This is gross under-utilisation of a prime property”, said city-based hotelier A. M. Khalid who, along with Attar, is fighting to get Haj House out of the MEA’s control.

CA Examination

Students who fail in chartered accountant exams can find out their mistakes by going through their answer sheets as the Delhi HC directed the Institute of Chartered Accountants of India (ICAI) to provide a certified copy of the paper of students under the Right to information Act. Dismissing an ICAl’s plea against a CIC order, the HC said the answersheet cannot be excluded from the purview of the RTI.

New Rules for RTI applications by NRI

In order to simplify the RTI application process from abroad, the CIC has framed new rules enabling NRIs to pay application fees and information costs at the Indian embassies and missions abroad. “The commission will meet officials from the external affairs ministry and DoPT to smoothen issues related to the mode of payment and acceptance of appeals. Embassies may accept only the fee and information cost and provide e-receipt to applicants”, CIC chief Wajahat Habibullah said.

Padma awards

In response to a Right to Information query filed by Subhash Chandra Agarwal, the Home Ministry has admitted that “no specific record of the deliberations of the meeting of the Padma awards committee is maintained.

Only the final recommendations of the awards committee are submitted for the approval of the Prime Minister and the President”.

In what appears to be an attempt to shrug off disclosure, the government said there were no ‘specific records’ created in terms of receipt of nominations when asked about the number of recommendations that were received by the Home ministry by the cut-off date of September 30.

Incidentally, the decision on the awards was taken over a period of three days in meetings held on December 19, 20 and 22, 2008. The non-official members of the committee nominated by PM Manmohan Singh included Prof. [yotindra Jain, Kapila Vatsyayan, R Chidambaram, Tarun Das and Sayeeda Hameed.

Assets of the Ministers from Rajya Sabha

Earlier PMO had ruled that information on MP’s assets as being furnished to the speakers of the Lok Sabha (LS) and Rajya Sabha (RS) are exempt.

On appeal to CIC, he referred the matter to the speakers of LS and RS. In response, the Rajya Sabha has agreed to provide asset details of the Union Ministers who are members of RS. In reply to RTI query, it provided the information details of assets and liabilities of 16 ministers out of 18 as available.

PM Manmohan Singh owns only Maruti 800, Mr. Praful Patel is the richest cabinet minister with combined wealth of Rs.46.8 crores, Mr. A. K. Antony has the least financial muscle with combined worth of Rs.17.9 lakhs.

Report of Maharashtra State Information Commission

Maharashtra SIC submitted the annual report of 2008 to Vidhan Sabha on 16.03.09. It is a document in Marathi. English translation is under preparation and hopefully will be available in early June. Meantime, some interesting statistics:

5 Commissioners together have imposed penalty in 256 cases, total amount of penalty levied Rs.34,01,432.

Total pendency of appeals as on 31.12.08 is 14,273 (In Mumbai 1574, in Konkan 1,339, Pune 3,863, Nashik 10, Aurangabad 3,584, Amravati 912, Nagpur 970).

Total pendency of complaints u/s.18 is 1207, (highest in Mumbai 560).

It is understood that Maharashtra is the first state in India to present annual report of 2008 as required under section 25 of the RTI Act.

BCAJ Admin

Right to Information

Part A : Decisions of CIC

S. 5(4) of the RTI Act :

Ss.4 of S. 5 of The RTI Act provides that the Public Information Officer may seek the assistance of any officer as he or she considers it necessary for the proper discharge of his or her duties.

Rakesh Agarwal of New Delhi applied for inspection of certain records of Tis Hazari Court, New Delhi.

In reply, the PIO stated that the appellant can inspect the records or take copies of the documents with the permission of Ld. Presiding Officer.

The appellant objected to the condition put for inspection in an appeal to CIC.

CIC, Shailesh Gandhi, in the Order noted as under :

“The onus lies on the PIO to approach any officer of the court as he considers necessary to procure the information that the appellant is seeking. If the appellant is exercising his right to information under the RTI Act, then he is within his statutory rights to only approach persons designated as PIO or APIO. He is not expected to seek permission from persons who are not designated under the RTI Act. The purpose of putting in place S. 5(4) is to ensure that applicants for information do not have to run from pillar to post to access information to which they are rightfully entitled to under the RTI Act. In present case, to ask the appellant to apply for permission from the Presiding Officer of the Court is in clear contradiction to the spirit and word of the law. The Commission considers the PIO’s reply as an instance of shirking responsibility and takes strong exception to such actions.”

S. 28 of the RTI Act :

S. 28 provides that the competent authority (the Chief Justice of all High Courts and Supreme Court are competent authorities u/s.2(e) of the RTI Act) may make rules to carry out the provisions of the RTI Act.

The Delhi High Court (Right to Information) Rules, 2006 as amended include :

The information specified in S. 8 of the Act shall not be disclosed and made available and in particular the following information shall not be disclosed :

(a) Such information which relates to judicial functions and duties of the Court and matters incidental and ancillary thereto.

CIC in his order noted as under for above rule :

The Delhi High Court RTI Rules have been framed u/s.28 of the RTI Act. This provision clearly states that the competent authority may make rules to carry out the provisions of the Act. Therefore, rules framed by the High Court u/s.28 cannot run contrary to the fundamental basis of the RTI Act which is to ensure that citizens can enjoy their fundamental as well as statutory right to information. Rule as above, in effect, appears to add another ground based on which disclosure of information can be exempted. No public body is permitted under the Act to take upon itself the role of the Legislature and import new exemptions hitherto not provided. The Act leaves no such liberty with the public authorities to read law beyond what it is stated explicitly. There is absolutely no ambiguity in the Act and creating new exemptions will go against the spirit of the Act.

Under this Act, providing information is the rule and denial an exception. Any attempt to constrict or deny information to the sovereign citizen of India without the explicit sanction of the law will be going against rule of law.

Right to information as part of the fundamental right of freedom of speech and expression is well established in our constitutional jurisprudence. Any restriction on the fundamental rights of the citizens in a democratic polity is always looked upon with suspicion. Even the Parliament, while constricting any fundamental rights of the citizens, is very wary. Therefore, the Commission is of the view that no competent authority has the sanction to import new exemptions and in the process curtail the fundamental right of information of citizens”.

Above two issues are part of the decision in Mr. Rakesh Agarwal v. Tis Hazari Court, New Delhi : CIC/SG/A/2009/000677/3392 of 22-5-2009.

PM’s surgery :

Mr. Jagdish Jetli made an RTI application to AIIMS, New Delhi seeking information on 7 points connected to the second heart by-pass surgery on the Prime Minister Dr. Manmohan Singh by a team drawn from Asian Heart Institute (AHI), Mumbai led by Dr. Rama Kant Panda. Information sought included :

Details of expertise of all members of the AHI team

Rules of the AIIMS under which a team from a private institute was asked to conduct this surgery.

The CPIO gave certain information which according to Mr. Jetli was vague and evasive.

The Bench of Mrs. Annapurna Dixit, CIC decided as under:

“The respondent submitted that the AIIMS has nothing on record regarding the qualifications of Dr. Panda who conducted the by-pass heart surgery, nor have reasons for his selection been recorded. He stated that the decision to invite Dr. Panda was taken jointly by the PMO and family members of the Prime Minister. The appellant’s contention was that the public has a right to know why a premier institute such as the AIIMS which is staffed by the best doctors in the country and with the best of medical facilities had to invite a “doctor from outside to conduct the operation in its premises. He added that this is a matter of great concern to the public and that inviting a doctor from another institute has eroded the reputation of AIIMS. Keeping the peculiar facts of the case in mind and in the light of the fact that Dr. Panda had used the facilities belonging to AIIMS, which is a public authority, the Commission directs the CPIO to obtain the relevant information from the Asian Heart Institute regarding particulars of Dr. Panda and to provide the same to the appellant. The appellant also to be informed about how the decision to invite Dr. Panda to conduct the surgery was arrived at and for what reasons and also be provided with minutes of any meetings in this connection, available with the AIIMS. All information to be provided by 20th June, 2009.”

[Mr. Jagdish Chander Jetli v. AIIMS, CIC/ AD/ A/ 09/00609 dated May 21, 2009]

Part B : The RTI Act

S. 25 of the RTI Act provides that the Central Information Commission and the Sta te Informa tion Commissions as soon as practicable after the end of each year, prepare a report on the implementation of the provisions of the RTI Act during the year and forward a copy thereof to the appropriate Government.

Annual Report 2006-07 of Central Information Commission is now submitted in April 2009. It is surprising that it has taken two years to prepare and publish the annual report. One does not know when Annual Reports of 2007-08 and 2008-09 would be prepared and published. Words ‘as soon as practicable’ are nebulous. One wishes that time limit was set in the Act as it stands in other Acts like the Companies Act. As reported in this feature in June, Maharashtra SIC submitted the annual report of 2008 to Vidhan Sabha on 16-3-2009, i.e., within less than 3 months, praiseworthy achievement. Hereunder, I reproduce salient features of the Annual Report of the Central Information Commission as appears in the executive summary printed in the said Report:

i) The number of requests made to each Public Authority [Vide S. 25(3)(a) of RTI Act] : the period under report witnessed exponential increase in the number of requests (1,71,404) received by Public Authorities. If all ministries are taken together the number of requests received in year 2006-07 are seven times over previous year. This increase will rise to more than 8 times if comparison is made for top ten ministries. The number of requests received by Public Authorities of top ten Ministries in year 2006-07 were 1,38,501 in comparison to 16,680 during 2005-06.

ii) Rejection of the requests [Vide S. 25(3)(b) of RTI Act] : out of 1,14,724 requests received by top 5 ministries only 8.9% requests are rejected during 2006-07 in comparison to rejection of 26.5% requests by top five ministries under different sections in the previous year. When all ministries are considered together, only 8.98% requests received are rejected in the year 2006-07 in comparison to 13.9% in the previous year. The major rejections were u/s.8 of RTI Act 2005 followed by u/s.11, u/s.24 and u/s.9. On an average, authorities under different ministries disposed 66% of the requests received in year 2006-07.

iii) Number of appeals/complaints decided by the Central Information Commission (Vide S. 25(3)(c) of RTI Act) : Total number of appeals or complaints received by CIC were 6839 during 2006-07 (1156 in Quarter-I, 1483 in Quarter-If, 1583 in Quarter-Ill, and 2617 in Quarter-Tv). The total number of appeals received by Public Authorities during 2006-07 was 15298. Out of these 8466 (74.93%) appeals were accepted by Public Authorities and 4888 (31.95%) were rejected.

iv) Disciplinary action taken [Vide S. 25(3)(d) of RTI Act] : The total number of show cause notices issued against various public information officers by Central Information Commission for not being able to comply with the provisions of the RTI Act during 2006-07 were 259. Out of these 259 cases, penalties are imposed in 24 cases u/s.20(1) of the RTI Act and also recovered in 12 cases. In addition, S. 20(2) was invoked in 8 cases. Further, compensation was awarded to 12 appellants by the Central Information Commission u/s.19(8) of RTI Act.

Part C : Other News

Amendments to the RTI Act :

In the address by the President of India, Shrimati Pratibha Devisingh Patil to the Parliament on 4th June 2009, in Para 32, she has covered number of measures on which her Government will initiate steps within the next hundred days. One of the items therein is :

Strengthening Right to Information by suitably amending the law to provide for disclosure by Government in all non-strategic areas.

However, it appears that amendments proposed are completely of different nature: The Times of India on June 19 reports:

In a body blow to claims of transparency, the UPA Government has proposed amendments to the RTI Act exempting all file notings except those dealing with social and development issues besides restricting access to pending policy decisions, cabinet documents and examrelated documents. The amendments also envisage increasing RTI fees substantially. The draft amendments proposed by the DoPT signal that the Government is keen to bring in changes in the law that it had been forced to drop in 2006 under pressure from Left parties and RTI activists. In a move aimed at discouraging ‘motivated information-seekers’ the DoPT Ministry has suggested that payment (at present Rs.10)should be hiked. There is a view in the Government that citizens should be made to pay for the pay of the officers working on RTI besides the amount for photocopying or accessing the information sought.

Objecting to the above proposal, Mr. Shailesh Gandhi, earlier RTI activist and presently erc has addressed a letter to the Prime Minis ter.

He states: It would be appropriate if the Government transparently accepts certain boundaries in the exercise of improving transparency.

The minimum requirements for this would be :

1) No reduction in the scope of S. 2(0, (h), (i) and (j).

2) No increase or addition in the exemptions u/s.8(1) of the RTI act.

The law has been spread by citizens across the coun-try and they value it very dearly. There are some worries in their minds about losing anything in the exercise of their fundamental right. It would be in the fitness of things if the Government declared the amendments they are proposing to the Act, and gave the reasons for the amendments publicly. I request you to clarify these matters soon so that citizens feel reassured.

• File notings :

Probably, as noted above, the proposed amendment for non-disclosure of file notings is caused by the serious battle going on between CIC and DoPT since years. CIC has often ruled (including under the Full Bench decision) that file notings are information as defined u/s.2(f). On the other hand, DoPT continues to hold the view that it is not an information. In FAQs as appearing on www.persmin.nic.in the Ministry, on interpretation of ‘what does information mean ?’ answers:

Information means any material in any form including records, documents, memos, emails, opinions, advices, press releases, circulars, orders, log books, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force but does not include file notings’.

In an unprecedented move, CIC chief Wajahat Habibullah in early June issued summons to Joint Secretary S. K. Sarkar and Deputy Secretary Anuradha Chagti to appear on June 17 to explain why they should not be prosecuted under the IPC and penalised under the RTI for their failure to correct the misleading claim made on the DoPT website about file notings.

The provocation was the DoPT’s refusal, despite repeated directions to correct the misleading claim made on its website, that file notings were not part of the information that could be disclosed under the RTI. While other public authorities, including the Law Ministry and the Sc, have long accepted the CIC’s ruling that file notings are not exempt from disclosure, the DOPT has maintained otherwise on its website, much to the CIC’s chagrin. Habibullah found it. ‘appalling’ that the nodal department of RTI had ‘sought to emasculate the mandate’ of S. 19(7) which stipulates that the CIC’s decisions are ‘binding’.

RTI rescues Chembur residents from illegal garages:

For over five years, around 20,000 families in Chembur, Mumbai faced cronic problems of noise and air pollution coming from nearby illegal commercial garages and workshops. Their repeated complaints to the civic authorities failed to bring any relief. Irked by the indifference from the authorities, the residents filed a Right to Information plea and have now got their way. The RTI application clearly stated that these establishments were operating without licences. Not only that, they had encroached upon the footpaths violating more rules.

The civic officials have admitted that the RTI information will help them to come strongly against the illegal garages. The residents have more than one reason to cheer now, as not only their action will ensure less pollution, but it will also stop water-logging during the monsoons.

• RTI and e-governance :

Citizens across the country can now exercise their Right to Information on the phone and Internet. Inspired by the success of [aankari, a Bihar State Government initiative to accept RTI applications through phone calls, the Centre is all set to replicate the model across the nation.

Listing his priorities after taking over as the Min-ister of State for Personnel and Public Grievances, Mr. Prithviraj Chavan said that the Government of India would soon facilitate RTI queries through the phone and Internet by adopting the Jaankari model, albeit with more refinements in technology.

The Bihar Government’s citizen-centric Jaankari project had earned it the national e-governance award last year. Using the effective tools of voice communication, thus enabling even the poor and uneducated to file RTI queries. The Jaankari initiative only involves making a phone call by dialing 155311 and communicating details of the desired information to a call-centre person. The call-centre executive then drafts an RTI application and sends it to the public authority concerned.

• Electricity Consumption bills (ECb) in Mumbai:

You may be shocked with these figures but they are as obtained under RTI application:

We pay taxes to meet above bills!

BCAJ Admin

Right To Information

Right to Information

Privacy &/v. Disclosure

One American writer has said:

“One man’s freedom of information is another man’s invasion
of privacy.”

The personal information of an individual need not be made
public in every case, as he has a right to be left alone, which now has been
recognised as a fundamental right the world over.

Article 21 of the Constitution of India:

21. Protection of life and personal liberty:

No person shall be deprived of his life or personal
liberty except according to procedure established by law.

The Supreme Court has ruled, modelled on the decisions of the
US Supreme Court, with regard to privacy. The Court observed in R. Rajagopal
alias R. R. Gopal v. State of Tamil Nadu (1994) 6 SCC 632:

The right to privacy is implicit in the right of life and
liberty guaranteed to the citizens of this country by Article 21. It is a
‘right to be left alone’. A citizen has a right to safeguard the privacy of
his own, his family, marriage, procreation, motherhood and education among
other matters. None can publish anything concerning the above matters without
his consent. If he does so, he would be violating the right to privacy of the
person concerned and would be liable in action for damages.

Article 19 of the Constitution of India reads:

“All citizens shall have the right to freedom of speech and
expression.”

That right, as per the Supreme Court of India, includes the
right to information. S. 8(1)(j) of the RTI Act:

8(1) Notwithstanding anything contained in this Act,
there shall be no obligation to give any citizen

(j) information which relates to:

§ personal information

§ the disclosure of which has no relationship to any public activity or
interest, or

§ which would cause unwarranted invasion of the privacy of the individual

§ unless the Central Public Information Officer or the State Public
Information Officer or the Appellate Authority, as the case may be, is
satisfied that the larger public interest justifies the disclosure of such
information:

Provided that the information which cannot be denied to the
Parliament or a State Legislature shall not be denied to any person.

Landmark judgment of Delhi High Court (F.B.) pronounced on
12-1-2010:

In Secretary General, Supreme Court of India v. Subhash
Chandra Agarwal: The Full Bench of the Delhi High Court concurred with the
view of the learned single Judge that the contents of asset declarations,
pursuant to the 1997 Resolution, are entitled to be treated as personal
information, and may be accessed in accordance with the procedure prescribed
u/s.8(1)(j); and that they are not otherwise subject to disclosure. Therefore,
as regards the contents of the declarations, whenever applicants approach the
authorities under the Act, they would have to satisfy themselves u/s.8(1)(j)
that such disclosure is warranted in ‘larger public interest’.

Privacy issues & RTI:

S. 8(1)(j) talks of personal information:

Dictionary defines:

§
‘person’ as human being, an individual

§
‘personal’ as relating to or affecting an individual

Hence, S. 8(1)(j) only covers natural persons, i.e.,
individuals, it covers privacy of the individuals only.

Hence, other entities like companies, HUF, trusts, etc. are
not covered under this clause and any information on them cannot be affected by
the exemption u/s.8(1)(j).

Similarly, no such entities can take protection under the
Right of Privacy, a fundamental right guaranteed under the Article 21 of the
Constitution.

Re. Individual’s personal information gets exemption under
this clause on the following three criteria:

1. ‘It must be
personal information’:

Personal information here has reference to the third party’s
information and not one’s own.

Extract from a Full Bench decision (five members of the
Central Information Commission) dated 23-4-2007, explaining the scope and ambit
of this clause: (Para 32)

In this case there were six applicants/complainants and 5
public authorities. Out of 5 Information Commissioners, three are presently in
chair, two have retired.

This Section has to be read as a whole. If that were done, it would be apparent that personal information does not mean information relating to the information seeker, but about third party. That is why, in the Section, it is stated “unwarranted invasion of the privacy of the individual”. If one were to seek information about oneself or one’s own case, the question of invasion of privacy of one’s own self does not arise. If one were to ask information about a third party and if it were to invade the privacy of the individual, the information seeker can be denied the information on the ground that disclosure would invade the privacy of a third party. Therefore, when a citizen seeks information about his own case and as long as the information sought is not exempt in terms of other provisions of S. 8 of RTI Act, this clause cannot be applied to deny the information. Thus, denial for inspection/verification of his own answer sheets by a citizen applying the provisions of S. 8(1)(j) is not sustainable.

2. It must not have been disclosed to the public authority as a part of public activity:

When a citizen provides information in discharge of a statutory obligation, it is a disclosure as a part of public activity. The same cannot be exempted under this clause. For example:

Income-tax return — Not exempt.

The Assessment Order — Exempt.

Names of persons who applied for arms licenses — Not exempt.

See:

Mr. Jagvesh Kumar Sharma, New Delhi v. PIO, Govt. of NCT of Delhi Decision No. CIC/WB/A/2008/00993 dated 16-3-2009

One para thereof:

Various public authorities in performing their functions routinely ask for ‘personal’ information from citizens, and this is clearly a public activity. When a person applies for a job, or gives information about himself to a public authority as an employee, or asks for permission, licence or authorisation, all these are public activities. Applying for an arms licence certainly falls in this category. As a matter of fact S. 4(1)(b)(xii) requires a suo moto publishing of ‘particulars of recipients of concessions, permits or authorisations granted by it’.

3. The disclosure of the information would cause unwarranted invasion of the privacy of the individual
What is unwarranted invasion of privacy of a person cannot be enlisted exhaustively. However cases have arisen before numerous adjudicative bodies on the issue of invasion of privacy arising out of the requests to furnish information under the RTI Act. To cite an example is the case before the Central Information Commission in Mr. Harish Lamba v. Indian Council of Medical Research, CIC/AD/A/20009/0010371 dated 2nd September, 2009. The Commission denied to provide information about expenses on educa-tion of the children of members of the Committee u/s.8(1)(j) as it was held to be personal information disclosure of which will cause unwarranted invasion of privacy of individuals constituting the Project Review Committee.

The right of privacy is an evolving right and the extent of its strength and reach is different in different countries.

Privacy is the ability of an individual or group to seclude themselves or information about themselves and thereby reveal themselves selectively. The boundaries and content of what is considered private differ among cultures and individuals, but share basic common themes. Privacy is sometimes related to anonymity, the wish to remain unnoticed or unidentified in the public realm. When something is private to a person , it usually means there is something within them that is considered inherently special or personally sensitive. The degree to which private information is exposed therefore depends on how the public will receive this information, which differs between places and over time.

Assuming that this clause is applicable after undergoing above three criteria, still it is overridden if larger public interest justifies the disclosure of such information.

Such matters could be of many types — e.g.,:

criminal activity of any individual

tax evasion matter

medical related information on the Prime Minister and the President of India.

Para from the decision in
Mr. Mahesh Kumar Sharma
v. PIO, Govt. of NCT of Delhi
Decision No. CIC/AT/A/2008/01262/SG/2109 dated 27-2-2009

The test of public interest is to be applied to give information only if any of the exemptions of S. 8 apply. Even if the exemptions apply, the Act enjoins that if there is a larger public interest, the information would still have to be given. There is no requirement in the Act of establishing any pub-lic interest for information to be obtained by the sovereign citizen; nor is there any requirement to establish larger public interest, unless an exemption is held to be valid.

Para from the Decision No. CIC/OK/A/2008/00860/ SG/0809, dated 31-12-2008.

The concept of public interest cannot be invoked for denial of information. The Section empowers the Public Information Officer to provide the exempted information if it is in the larger public interest; meaning thereby that access to the exempted information can be allowed if public interest is served in providing the information.

The term ‘privacy’ means things in different contexts. Different people, cultures, and nations have a wide variety of expectations about how much privacy a person is entitled to or what constitutes an invasion of privacy.

Almost all countries have laws which in some way limit privacy; an example of this would be law concerning taxation, which normally require the sharing of information about personal income or earnings.

Similarly, if one is in job with the Government or is politician contesting for seat in Parliament, etc. he is obliged to disclose certain information publicly. Transparency is inseparable from good governance and privacy has then to be sacrificed for such occupation/situation and disclosure of many personal information has to be accepted as essential for democracy to be meaningful.

There are many types of privacy e.g.,

Physical: In the USA, the right of the people to be secured in their houses, against unreasonable security and seizures is guaranteed. In India, our Income-tax Act provides for power to search and survey and over-rides privacy right, but reasonable restrictions also are built into the provisions like S. 133A(2) which provide that an income-tax authority may enter any place of business or profession referred to in Ss.(1) only during the hours at which such place is open for the conduct of business or profession and, in the case of any other place, only after sunrise and before sunset.

Informational: Various types of personal information come in public domain, specially financial e.g., many transactions reported through Annual Information Returns (AIR) being furnished by many bodies like MFs, property registration authorities (see ITR-2, instruction 9) are to be disclosed. However, one is allowed to keep :in privacy outlets of one’s wealth/income other than required to be disclosed under AIR.

Medical privacy allows a person to keep their medical records from being revealed to others. This may be because people have concern that it might affect their employment. Or it may be because they would not wish others to know about medical or psychological conditions or treatment which would be embarrassing. Revealing medical data could also reveal other details about one’s personal life (such as about one’s sexual activity for example).

The secret ballot is the simplest and most widespread measure to ensure that political views are not known to any one other than the original voter. It is nearly universal in modern democracy, and considered a basic right of citizenship. In fact even where other rights of privacy do not exist, this type of privacy very often does.

There is also concept of privacy in relation to spiritual and intellectual attributes of an individual, also many other types of privacy concepts prevail.

The concept of privacy is most often associated with western culture. Universal Declaration of Human Rights, Article 12 states:
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

In India, this right is not very deep. It would de-pend on each case to determine whether privacy is invaded in an unwarranted manner or not.

In fact, as regards the UID project, privacy right is extensively invaded and many civil society individuals are disturbed about it. Various representations have been made to the Authority through civil society meetings and discussions. In response, the Government has set up a group of officers under the Secretary, DOPT to develop frameworks for data protection, security and privacy.

It is difficult to balance between privacy and disclosure. An individual would say that he has the ‘right to be let alone’ yet he wants to live in the society and not alone, he wants to be part of the society. He has then to be open for disclosure. Hence, there is a right to privacy and the need for disclosure.

Dr. Alan Westin (He is a professor of Public Law & Government Emeritus, Columbia University, Department of Political Science and has conducted 30 privacy surveys and created privacy indexes) once wrote:

Each individual is continually engaged in a personal adjustment process in which he balances the de-sire for privacy with the desire for disclosure and communication of himself to others, in light of the environmental conditions and social norms set by the society in which he lives.

In India the subject of ‘privacy’ has hardly been in public debates. However as noted above, the UID project has opened up this subject, more now with ‘2G Scam tapes’. The Income-tax authorities have tapped the phones of Niira Radia, a powerful lobbyist. The same have been leaked and partly now are in public domain. Issue is raised by Mr. Ratan Tata whether his right to privacy is violated. Let me quote some opinions on the same?: one pro-disclosure, one against and the third balanced.

Advocate Prashant Bhushan:

I think it (tapes made public) is absolutely in public interest. The Income-tax Department taped all these conversations legally. If whoever leaked it did it in public interest, it could be argued that he or she is a whistle-blower. But there is no precise definition of public interest. If somebody asked for the tapes through the Right To Information Act, they could be denied only on the premise that it would compromise the investigation, or that it contains personal information that has no relevance to public interest at all. Whatever has come out in public domain is not personal information. It’s all purely official communication, which is of interest to the public. Tata was talking to Radia, only because she happened to be employed by the Tata group as its lobbyist.

Mr. Deepak Parekh on NDTV’S ‘Walk the talk program’ said: “the tapes and the leaked conversations were an invasion of privacy.”

Mr. Arun Jaitley writes on this issue of privacy related to these tapes:
“The intercepted materials are ordinarily not likely to be secrets of the State. Their disclosures are neither prohibited, nor can at present be penalised. It is expected that the same would be available with the relevant departments of the Government and a legitimate disclosure of the same could be made either through the RTI Act or through an investigative process if the same are utilised for that purpose. If the material intercepted deals with matters concerning the affairs of the State, unauthorised intervention in the functioning of a government or commission of an offence, it could be handed over to the competent authority dealing with the matter. However, if the conversations so taped are private in nature and have no bearing whatsoever on the functioning of the State, it would ordinarily be expected from the competent authority to direct that such conversations or intercepts be maintained in absolute secrecy and its disclosure and use is prohibited.

However, those who seek to interfere in the matters of the State and influence decisions concerning the State of play in the political arena are hardly expected to contend that a cloak of secrecy be maintained around their roles. They may have a right to privacy in relation to their private lives, but not in relation to activities which are wholly political or related to the public affairs of the State.”

On macro level on this issue of privacy &/v. information, let me quote Barack Obama:
Open government is, within limits, an ideal that we all share. US president Barack Obama endorsed it when he took office in January 2009. ‘Starting today,’ he told his cabinet secretaries and staff “every agency and department should know that this administration stands on the side not of those who seek to withhold information, but those who seek to make it known.” He then noted that there would have to be exceptions to this policy to protect privacy and national security.

An iconic industrialist, Mr. Ratan Tata feels violated, is outraged over the public disclosure of his private conversation with lobbyist, Niira Radia. Mr. Tata has filed a petition in the Supreme Court invoking Article 21 of the Constitution, arguing that what has happened is an invasion of his privacy.

I have always wondered whether the right of privacy is opposite to the right to information or these two fundamental rights make balance for human dignity and human values. I believe that there cannot be any general conclusion as to which right universally overrides the other; each case has to be decided on the issue involved.

Let us hope that the Supreme Court decision enlightens the citizens on this vital issue of human rights and restrictions therein. It shall be a land-mark decision. Citizens await the same, hopefully in February 2011.

(I was invited by the Institute of Secretarial Training and Management, Department of Personnel & Training, Ministry of Personnel, Public Governances & Pensions, GOI to make a presentation on the subject ‘Privacy Issues & RTI.’ This article is based on the said presentation and further developed by other information available on this subject on Wikipedia and other websites and the recent news items related to tapes of telephone conversion between Niira Radia and others in newspapers and magazines).

BCAJ Admin

Right to Information

Part A : Decisions of CIC

S. 2(h) of the RTI Act :

Many bodies operate primarily as service to the citizens of India, though some of them may be even commercial or business bodies. When RTI application is received by them, they take a view that RTI Act does not apply to them. They contend that they are not ‘Public Authority’ (PA) as defined u/s.2(h) the Act.

Basically, such bodies need to be transparent and accountable not only to those they deal with, but to the citizens at large. Such bodies include co-operative societies, NGOs, various educational and medical institutions and so on.

One may appreciate if the RTI application is mischievous in nature or is for harassment, and the body takes the view that it is not a PA, but not when citizen requests for information which leads the body to become more transparent and accountable.

Matter came before Central Information Commission in respect of (1) LIC Housing Finance Ltd. (LICHF) (2) LIC Mutual Fund Asset Management Co. Ltd. (LICMF) and (3) G.I. Housing Finance Ltd. (GIHF). Applications and complaints are filed by 10 individuals and the decision is given by 3-member bench of Chief IC and two other ICS.

All above 3 bodies took the view that they are not PA and refused to provide the information sought.

Facts of the above three bodies are as under :

    LICHF : It is a Public Ltd. Company. 45.918% of shares are owned by LIC (40.497 %) and three other PSUs.

    LICMF : It is a Public Ltd. Company. LICMF made detailed submissions and based on 16 submissions made, stated that it is not PA. The same included : It is purely a business/commercial entity, it is not a Government Company as defined u/s.617 of the Cos. Act and the shares held by LIC in it are not even 50%.

    GIHF : Government-owned companies hold 47.7% of total shares, directorship on its Board is linked to the tenure of the respective Director with a Government-owned or controlled organisation.

Decision :

CIC held that the above facts are sufficient enough to bring these three bodies within the definition of the term ‘substantially financed’ as in S. 2(h)(d)(ii).

CIC also noted that ‘Substantially financed’ does not mean more than fifty percent financed or majority shareholding by the Appropriate Government.

It also held that :

It can be inferred that the control of LIC over LICHFL is explicit and effective.

LICMF is administratively controlled by the LIC of India.

GICMF is controlled by six Public Authorities.

Hence, it held : “In view of the above observations and findings, we decide that all the three respondents, LIC Housing Finance Limited, LIC Mutual Fund Asset Management Co. Limited & GIC Housing Finance Limited are ‘Public Authorities’ under the RTI Act. All of them are, therefore, obliged to take all necessary steps to carry out their duties and responsibilities assigned by the Act. Insofar as these appeals/complaints are concerned, the Commission directs the respondents to provide the requested information to the concerned applicants within a period of three weeks from the date of receipt of this decision.

[10 Appellants & Complainants v. LIC Housing Finance Ltd., LIC Mutual Fund Asset Management Co. Ltd. and G.I. Housing Finance Ltd. decided on 28-10-2009]

Travel and medical expenses of the President of India : S. 7(9) of the RTI Act :

The appellant, Shri Chetan Kothari of Mumbai, in four different appeals sought information regarding travel and medical expenses of (a) the President of India (b) Vice-President of India, and (c) The Prime Minister of India.

Hereunder are covered two appeals re. (a) above. He had sought the above information not just for the incumbent but also for the earlier Presidents with break-up of each covering 11 Presidents starting with Dr. Rajendra Prasad and ending with Smt. Pratibha Patil. Also break-up for the period when they were not serving as President of India.

CPIO responded as under :

“The information asked for would have to be compiled and would disproportionately divert the resources of public authority and will be detrimental to the normal functioning of the office.”

CIC while deciding the matter read out the contents of S. 7(9) to CPIO of the President’s Secretariat and asked him to identify under what clause of the Act he was authorised to actually refuse information sought, since this clause deals only with the option of providing information in a form other than that asked for. CPIO Shri F. A. Kidwai submitted that according to his understanding this clause entitled the CPIO to refuse the information if it would disproportionately divert the resources of the public authority or would be detrimental to the safety or preservation of the record in question.

Decision Notice :

Ss.(9) of S. 7 does not authorise a CPIO to refuse information under the RTI Act, but only allows him to provide the information sought in a form other than that sought. The best way of doing this is to interact with the appellant and provide him the information in alternative form. The decision of the CPIO in both applications to the President’s Secretariat is, therefore, invalid and inasmuch as it is supported in the order of the Appellate Authority, both orders of the Appellate Authority Ms. Chaube are set aside.

In the normal course, the orders of the President’s Secretariat would have been set aside and it would have been directed to consider the appellant’s two RTI applications of 9-2-2008 and 29-5-2008 afresh. However, since the Ministries holding information sought are different to the President’s Secretariat as elaborated by Ms. Rasika Chaube in her order of 14-7-2008, the applications are now transferred to the CPIOs of Ministry of Health, Ministry of External Affairs and Ministry of Defence who will process these applications in response to the RTI applications made to them directly by Shri Chetan Kothari. Appeals concerning the President’s Secretariat are, therefore, allowed, but without cost.

(Note : The above reporting covers decision on two out of four appeals. Other two for the expenses on the VP of India and on the PM of India are not covered in this issue.)

Part B : The RTI Act

Continuing from October to December BCAJ, the summary of two reports :

One study by PricewaterhouseCoopers (PWC) as appointed by the Department of Personnel and Training (DOPT), titled ‘Understanding the key issues and constraints in implementing the RTI Act’. Its final report as Executive Summary is published in June 2009.

Second study by National Campaign for People’s Right to Information (NCPRI) and RTI Assessment & Analysis Group (RaaG) in collaboration with number of other social bodies including TISS, Mumbai under the title ‘Safeguarding the Right to Information’. Its interim findings are published in October 2008.

DOPT-PWC Report :

Improving efficiencies at Information Commission :

The appeal process is a key component of the RTI Act. It is one of the controls established to ensure that the information is provided to common citizens.

Key issues observed :

Any person who does not receive a decision within the time specified in Ss.(1) or clause (a) of Ss.(3) of S. 7, or is aggrieved by a decision of the Public Information Officer may, within thirty days from the receipt of decision, appeal to an officer who is senior in rank in each Public Authority — commonly referred as the First Appellate Authority [S. 19(1)]. A second appeal against the decision shall lie within ninety days from the date on which the decision should have been made or was actually received, by the Central/State Information Commission [S. 19(3)]. However, there are significant challenges observed at the Information Commission. The findings of the study were as follows :

Large pendency of cases with a wait time of 4-12 months existed in most of the States. This discouraged people from filing appeals.

Information seeker survey pointed out that 47% of the citizens did not receive replies to their RTI application with 30 days.

Appellants had to incur expenses to attend the hearing of second appeals at Information Commission. As per S. 19(8)(b), the Information Commission may require the Public Authority to compensate the complainant for any loss or other detriment suffered. However whether this clause can be invoked for compensating the travel expenses of the appellants is an area of contention and was not observed during the study.

The adjudicatory role of the Appellate Authority is critical in making this Act a success. As per the estimates, projected numbers of the secondary appeals would grow to 2.5-3.0 lakhs by the year 2011. This would require developing innovative ways to dispose of cases, without diluting the rights of either party.

Recommendations :

Improving the disposal rate of complaints/appeals by the Information Commission through the following recommendations :

Hearings through video conferencing : Since the Information Commissions are situated in State capitals (with exceptions like Maharashtra), it is inconvenient for applicants to be present during the scheduled hearing. This problem assumes significance in cases of matters pertaining to the Central Government, where the appellant has to travel to New Delhi. It is proposed that the Information Commissions use video conferencing (VC) as a mode of communication for such hearings. VC facility is available at each district headquarter which may be used for this purpose.

The CIC, as per S. 12(7) and SIC, as per S. 15(7), with the approval of the appropriate Government should open offices at other locations, so as to reach out to the masses.

Passing order on merit of the case without hearing. This would address issues of rescheduling the hearing, in case of absence of the appellant or the PIO.

Usage of software application for managing the processes at the Information Commission. This application should assist in improving productivity/efficiency in disposal of cases, drafting of orders, day-to-day office administration etc.

Further the recommendations on other important issues are as follows :

Composition of Information Commissions : As per the S. 12(5) and S. 15(5), the composition should be such that it should have people with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance. To implement these sections in spirit, it is recommended that the people who have worked in Government should be restricted to 50% (if not less) as recommended in the ARC report.

To facilitate the induction of the new Commissioner, where he/she does not have a back-ground of law/quasi-judicial role, he/she should go through an induction period before assuming full charge.

Usage of RTI-compliant standard templates should ensure quick and reasoned orders to the appellant. It may be noted that the templates have a strong linkage to the Act and leave little room for errors.

Raag & NCPRI Report :

Current status and preliminary findings :

4) RTI case studies :

RAAG has now collected some 5,000 case studies from across the country in a further effort to understand who is using the Act, to what end, and what the outcomes have been. While thus far, case studies have been culled primarily from the national Hindi and English press, and by looking at relevant websites, mailing lists and blogs, attention is now turning to collecting more stories from the vernacular press as well.

These case studies show myriads of citizens using the Act in previously unknown ways, disproving the misperception that only RTI activists use the Act. Since the Act was born from people’s needs, it has been branching out continually as more and more people use it. For example, while it may strengthen some people’s Right to Life by helping them answer ration-related questions; it also helps others close down a polluting factory. In some cases, applicants faced threats, not all of which were ‘paper tigers’. In others, a larger group came forward to support an individual’s application. There are even interesting cases of Internet users forming their own online RTI support groups to help each other fill applications.

Similarly, there are extremely encouraging stories of RTI success by individuals or groups that are generally stonewalled by the Government, such as women, SCs and STs, people coping with physical challenges. Examples include economically-weaker sections using it to get school admissions for their children, a visually-challenged person using it to question his village panchayat, a ninety-year-old woman to get her passport, and supposed beneficiaries of the Indira Awas Yojna to avail of this scheme.

Other stories are emanating directly from field groups throughout the country. Many people’s movements, citizens’ groups, and non-governmental organisations now rest their work heavily on the Right to Information Act, using it for broader societal purposes.

In other words, RTI activism does not stand in isolation, but is being used as a potent instrument to improve governance and transparency across a variety of issues, including the Public Distribution System, municipalities, elections, trade unions, genetically-modified foods, dams, and the National Rural Employment Guarantee Act.

Cases of particular interest are being culled out and sent for rewriting, to make them more readable from the human interest angle. These will then be compiled into a compendium to be released in January. The RAAG team is also hoping to commission an author to write a novel featuring the Right to Information Act. These case studies will also become the basis for a play on the Right to Information Act, to be performed in January.

5) Website survey of S. 4 compliance :

As mentioned earlier, the departmental websites of the 240 state and district-level Public Authorities covered in the urban survey are also being evaluated for S. 4 compliance. This is to ascertain whether Public Authorities have begun to ‘pro-actively’ report the detailed operational, financial, and service-related information the Act requires of them.

The website survey of all 240 state and district-level sample Public Authorities is now half-way done.

One of the major findings of this ‘work in progress’ is that most S. 4-related information is not found on the website of the Public Authority itself as would be most logical, but on the State or Central RTI portal. Many websites also have frequent connectivity problems, making it difficult for citizens to use them to find the information they are seeking. There are also significant differences in the quality and depth of websites across States, with some providing extremely detailed and insightful information to citizens, while others provide almost nothing. However, a general pattern is that State Government websites tend to contain more information than District Government websites.

6) Survey of RTI coverage by the media :

As mentioned earlier, the People’s RTI Assessment is analysing the role that the print media has played as a disseminator and user of the Act. Leading newspapers and magazines in over ten states (Bihar, Goa, Gujarat, Karnataka, Kerala, Madhya Pradesh, Maharashtra, Orissa, Rajasthan, Uttarakhand, Tamil Nadu), as also leading national English and Hindi publications are being analysed. Each state analysis is being undertaken by a partner organisation or individual.

This national analysis of the media is intended to answer the following questions :

How much coverage have different publications given to RTI-related issues and cases ?

What role have different publications played in raising public awareness about the RTI Act and its use ?

What tone and approach have different publications assumed vis-à-vis the RTI Act ?

Have newspapers, magazines and other publications used the RTI as a tool for investigative journalism, and have they found it useful ?

What does the Indian media establishment (i.e., owners, editors and journalists) think of the RTI Act ?

Has the Indian media establishment begun to internalise the RTI in letter and/or spirit by enhancing the transparency of their own functioning ?

Additionally, State partners are collecting clippings of all RTI coverage in their States, and RAAG intends to upload this entire collection onto a national People’s RTI Assessment portal.

Status — This analysis is now half-way done, and State partners are beginning to send in the first draft for their analysis reports. From a cursory review of these, it appears that RTI coverage of the media is not as intense as might be assumed, and that many journalists are still learning how to use the RTI for investigative purposes.

State media survey consultants will now begin the process of interviewing editors, journalists, and media house owners to determine their perceptions about the RTI and its potential impact in India. The final analysis report should be complete by late December 2008.

Part C : Other News

Important pronouncements by the Commission :

When Shailesh Gandhi, CIC was in BCAS office addressing RTI activists and journalists, he distributed compilation of 8 important profound pro-nouncements by the Central Information Commission.

In this part, the first is being covered, others to be followed in subsequent issues :

1. No imagined exemptions :

This Commission is conscious of the fact that it has been established under the Act and being an adjudication body under the Act, it cannot take upon itself the role of the Legislature and import new exemptions hitherto not provided. The Commission cannot of its own impose exemptions and substitute their own views for those of the Parliament. The Act leaves no such liberty with the adjudicating authorities to read law beyond what is stated explicitly. There is absolutely no ambiguity in the Act and tinkering with it in the name of larger public interest is beyond the scope of the adjudicating authorities. Creating new exemptions by the adjudicating authorities will go against the spirit of the Act.

Under this Act, providing information is the rule and denial an exception. Any attempt to constrict or deny information to the Sovereign Citizen of India without the explicit sanction of the law will be going against rule of law.

Right to Information as part of the fundamental right of freedom of speech and expression is well established in our constitutional jurisprudence. Any restriction on the Fundamental Rights of the Citizens in a democratic polity is always looked upon with suspicion and is invariably preceded by a great deal of thought and reasoning. Even the Parliament, while constricting any fundamental rights of the citizens, is very wary. Therefore, the Commission is of the view that the Commission — an adjudicating body which is a creation of the Act — has no authority to import new exemptions and in the process curtail the Fundamental Right of Information of citizens.

Undiplomatic disclosures :

Soli Sorabjee under ‘Soli LOQUIES’ writes in Sun-day Express of 25-10-2009 (extracts) :

Thanks to the freedom of Information Act in the UK, there have been startling revelations in the release of letters written by British ambassadors about foreign governments and the people of the country where they had been stationed.

The most devastating assessment was in a 1967 memo by Roger Pinsent, Britain’s ambassador to Nicaragua, stating that “the average Nicaraguan is one of the most dishonest, unreliable, violent and alcoholic of Latin Americans”. The letters are brutally frank but certainly not diplomatic. A successful application under our RTI Act for disclosure of assessments made by our diplomats about countries where they were posted would be very illuminating. The problem is that any disparaging criticism, even if true, would be withheld by timorous babus because of likely potential damage to foreign relations with other countries. Unfortunately, satyameva jayate has no place in these matters.

Unauthorised alterations in the flat :

One, Ms. Kanika Golder, was put in the dock by her housing society after she made unauthorised alterations in her flat purchased on the 20th floor of the storeyed Shivalaya Residency Co-operative Housing Society in Thakur Complex, Kandivli (E). She took the RTI route to find out that almost every neighbour of hers had also made such unauthorised constructions. But after follow-ups with the BMC failed to yield any result, she approached the Bombay High Court.

A report submitted by the BMC to the Court admit-ted that almost every flat holder had illegally encroached upon the corridor up to the lift door. There was an amalgamation of flats and major alteration inside the flats. The refuge area has also been encroached upon. Even though the BMC tried to argue that the illegalities cropped up at the time of construction, a Division Bench of Justices Ranjana Desai and Mridula Bhatkar ruled, “We are not concerned with the question as to whose instance the encroachment is done. If there is any encroachment, it should be removed immediately, because if the area outside the lift is encroached upon, in case of fire or other such calamity, it may prove hazardous. If the refuge area is occupied, it is also dangerous to the housing society,” the order said.

When the Court came down heavily on the civic body, the BMC begun action by demolishing certain portions in the tower.

RTI helps retired Government employees to get their dues :

RTI activist, Milind Mulay, was prompted to file the RTI query as his mother, Vijaya S. Mulay, who re-tired as a nurse from Marol Maternity Home, did not get her dues for over one and a half years. “I was made to run from pillar to post, but they found a new excuse every day,” Mulay said.

RTI replies had revealed that the leave encashment dues of many employees had remained unpaid.

In a Circular dated November 10, the State Finance Department ordered that full payment should be made to the retired government employees. The Circular also said that excuses like not having full details (like the revised pay) should not be used to delay payments.

The payment should be made in full and at one stroke. If there is any difference in the amount because of revised dues, even that should be given in the lump sum instead of in part payments, the Circular said.

In the Fire Brigade alone, 41 firemen had not been paid leave encashment dues for three years.

The RTI replies revealed that around Rs.6.81 crore have been pending in dues to the 787 employees. Fourteen municipal wards alone are sitting on the files of 308 employees.

A senior fire officer who won the President’s Gallantry Award for meritorious service said that “for around one and a half year he was curtly asked to call up later. Many Fire Officers and firemen like me did not take leave for months together, working seven days a week. But this is the way the department has rewarded us”.

RTI and emails at BMC :

BMC is trying to make it easier for citizens to file online complaints to officers. RTI reply showed that only 40% of BMC personnel used their official email IDs.

The Chief Minister has now in the Circular dated November 9, instructed personnel in all government departments, including the civic corporation, to use their official email IDs for departmental communication, especially in instances where files get stuck for months together.

The BMC now plans to make all official IDs according to the officer’s post (or office) and not his or her name. These way complaints from the public will reach the new officer even if the old one is transferred. BMC officials admitted that the civic corporation has done little to promote the use of online facilities among employees or citizens. There are now plans to bring out pamphlets with the details of all official email IDs. “We will also provide the email IDs in the civic guide,” an official said.

RTI replies on BMC employees Internet usage pat-terns had revealed that in a 20-day period only around 40% of personnel actually used their official e-mail IDs. Data provided by the BMC’s IT cell showed that while 2,897 official IDs were created by the department, an average of only 1,172 emails were sent daily. Further,

An average of 312 e-mails bounced back and 47 were rejected from official IDs every day;

A senior BMC official has said that only 1% of civic Public Information Officers have official e-mail IDs.

Rs.5, 000 demanded for reply in about 45 pages to RTI application :

The Delhi University (DU) seems to be taking sides when it comes to answering queries through the Right to Information Act. Months after Amitabh Amit, a civil servant and ex-DU student, alleged that two DU professors — including PM Manmohan Singh’s daughter Upinder — victimised him for objecting to an ‘anti-culture’ essay in the course, the varsity has sent him a bill of Rs.5, 000 to cover costs incurred to answer the question.

In reply to a fresh RTI application filed by Amit, District Information and Public Information Officer, DU said they spent the sum on typing and photo-copying information to answer his earlier query about Professor Singh, and only after receiving the amount due for the previous query, will it be pos-sible to entertain further questions.

DU’s late realisation has surprised Amit. “I am being victimised because I dared to question the PM’s daughter. Even if you consider all the answers sent to me, they will not be more than eight to nine replies of four to five pages each. I don’t know how they charged me Rs.5,000,” he said.

According to RTI activist, the usual charge for an RTI reply is Rs.2 per page. Therefore, Amit should not have been charged more than Rs.90.

Details on Judges’ appointment :

The Supreme Court on December 4 stayed an order of the Central Information Commission (CIC) to the Apex Court to make public details of discussions in the collegium relating to appointment of Judges and the correspondence between the Chief Justice of India and another Judge relating to alleged interference of a Union Minister in a pending case.

Accepting Attorney General G. E. Vahanvati’s suggestion that the matter was of grave importance and required threadbare scrutiny, a Bench issued notice to RTI applicant S. C. Agrawal and posted the matter for hearing after five weeks.

This marks the beginning of the SC’s maiden judicial journey to examine the impact of the RTI on the happenings in the inner sanctum of the highest echelon of judiciary relating to administration of justice, which had been traditionally kept away from public knowledge.

An important clarification came from the Bench before it embarked on the journey — “there is no backtracking on right to information”. Probably, it was hinting at the recent decision of Judges of the Apex Court to put their assets and liabilities on the official SC website.

Appearing for the RTI applicant, Counsel Prashant Bhushan said it was the SC which had got the ac-colades for pushing the right of a citizen to access information. But, a perception is gaining ground that when it came to enforcing the right to information on judiciary, the SC was backtracking.

A firm assurance came from the Bench that the judiciary was not against the citizen’s right to information. It said : “You can take it from us that there is no backtracking on the right to information. We will examine the issue threadbare”.

Assailing the direction to make public information which was available only with the CJI, the SC, in its two petitions, said the CJI held the information pertaining to the appointment of Judges in a fiduciary capacity. So it should be exempted from the public under the RTI Act.

Endorsement of food products of Pepsi :

A RTI battle by a doctor against his colleagues for endorsing two Pepsi products had made the Central Information Commission (CIC) sit up and direct the Medical Council of India (MCI), a statutory body to regulate standards of medical practice in the country, to take up the issue with their Ethics Committee.

The Indian Medical Association (IMA) had, under a cloud of controversy, gone ahead and given its seal of approval to Pepsi’s Tropicana fruit juices and Quaker cereals. Dr. K. V. Babu, a native of Kannur district in Kerala and a life member with the IMA, chose to stand back from his fellowmen to question how ethical is it for doctors to support Pepsi’s commercial products. He took his queries right up to the CIC after the MCI and later the Ministry of Health and Family Welfare passed the buck from one to the other. “IMA is endorsing food products of Pepsi and that such endorsement is unethical,” Information Commissioner Annapruna Dixit voiced Babu’s questions in a recent hearing, later recorded in her order.

“He requests clarification since he is an IMA member. He wants to know whether endorsement of a commercial product by a medical organisation is unethical or not,” the Commissioner explained.

She directed the Medical Council “to place the issue before the Ethics Committee at its next meeting and to inform Dr. Babu the decision taken by the committee” by December end 2009. The Commission ordered the Public Information Officer, IMA, to furnish necessary information to the doctor by December 15.

BCAJ Admin

Right to Information

Part A: Decision of CIC

Section 8(1)(b), (d), (e), (h) and (j)

Mr. Rakesh Kumar Gupta of Delhi has sought information regarding matters relating to the income tax of eight parties: (a) Three limited companies including Escorts Ltd (b) Three centers of Escorts Heart Institutes & Research, and (c) Mr. Rajan Nanda and Dr. Naresh Trehan.

Both the PIO and FAA refused to grant information, holding that the information related to third parties, and the third parties, in reply to the notice issued to them, had strongly objected the disclosure of information relating to their income tax records.

According to the PIO, the applicant was not able to substantiate as to what the overriding public interest in disclosing the information relating to third parties is, and that unless the case of public interest is established, the disclosure would lead to an invasion of privacy of the assessees.

It was easy for the Commission to take the decision that clauses (b)(d), (e) and (h) do not apply to this case. The said clauses cover (b) Information forbidden to be published by any court of law, etc. (d) Information which is in the nature of trade secrets, intellectual property, etc. (e) Information held in a fiduciary relationship, etc. (h) Information which would impede the process of investigation, etc.

However, as to applicability of clause (j), the ‘order’ discusses the issue in detail and takes a view contrary to the view taken by many earlier decisions of the Commission. The said clause 8 (1)(j) provides the following: Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen information, which relates to personal information, the disclosure of which has no relation to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information. Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.

As the subject matter of this case is of interest to the profession and as it is a landmark decision, I reproduce this part of the decision almost completely:

“The final exemption claimed by the Department as in the case of Dr. Naresh Trehan and three other third parties is under the Section 8(1)(j). The three other third parties are the Escorts Heart Institute and Research Centre, Delhi, Escorts Heart Institute and Research Centre, Chandigarh, and Escorts Heart Institute and Research Centre Ltd. Section 8(1)(j) is with regard to personal information and, therefore, it can only be claimed by natural persons and not by corporate entities. The three institutes cannot claim to have ‘personal’ information. There is a difference between having a personality, i.e., a legal personality, and owning ‘personal information’. Personal information is information relating to a natural person, not a legal person. Words in a law should normally be given, including the meanings, in common language. In common language, we would ascribe the adjective ‘personal’ to be an attribute, which applies to an individual and not to an institution or a corporate body. From this, it flows that ‘personal’ cannot be related to institutions, organisations or corporates. Hence Section 8(1)(j) cannot be applied when the information concerns institutions, organisations or corporates. Therefore, the Commission is of the opinion that Section 8(1)(j) cannot be relied on by these three third parties, as they are not natural persons.

With regard to the information relating to Dr. Naresh Trehan, it has been argued by his representative that the information sought is personal as it contains personal financial information of the assessee, including various assets, income and expenditure and the disclosure of this information has no relationship with any public activity or interest. It has been alleged that the information has been sought with ill will and malice, with the motive to harass and blackmail the assessee. Furthermore, the Appellant is likely to misuse the information and could endanger the life and property of the assessee if the information goes in the hands of unsocial elements. There is no larger public interest served in disclosing this information to the Appellant.

The Commission has considered the submissions made by the Appellant, the Department and the representative of Dr. Naresh Trehan. To qualify for this exemption, the information must satisfy the following criteria:

1. It must be personal information.

There is no doubt that information with regard to Dr. Naresh Trehan is personal information.

2. It must not have been disclosed to the public authority as part of a public activity

The phrase ‘disclosure of which has no relationship to any public activity or interest’ means that the information must have been given in the course of a public activity. Various public authorities, in performing their functions, routinely ask for ‘personal’ information from citizens, and this is clearly a public activity. When a person applies for a job, or gives information about himself to a public authority as an employee, or asks for permission, licence or authorisation, all these are public activities. Also when a citizen provides information in discharge of a statutory obligation, this too is a public activity. Therefore, information provided by an assessee to the department for purposes of income tax assessment is information disclosed in relation to a public activity and therefore this part of Section 8(1)(j) is inapplicable in the present case..

3. The disclosure of the information would lead to unwarranted invasion of the privacy of the individual.

Certain human rights such as liberty, freedom of expression or right to life are universal and therefore, would apply uniformly to all human beings worldwide. However, the concept of ‘privacy’ is a cultural notion, related to social norms, and different societies would look at these differently. Therefore referring to laws of other countries to define ‘privacy’ cannot be considered a valid exercise to constrain the citizen’s fundamental Right to Information in India.

Parliament has not codified the right to privacy so far, hence in balancing the Right to Information of Citizens and the individual’s Right to Privacy, the Citizen’s Right to Information would be given greater weightage.

The State has no right to invade the privacy of an individual. There are some extraordinary situations where the State may be allowed to invade the privacy of a citizen. In those circumstances, special provisions of the law apply; usually with certain safeguards.

Therefore, where the State routinely obtains information from citizens, this information is in relationship to a public activity and will not be an intrusion on privacy. As this information has been provided by the assessee to meet his legal obligations, there is no unwarranted invasion of his privacy by the state. Therefore the disclosure of the same information to another person cannot be construed as being an unwarranted invasion of the privacy of the individual.

Given our dismal record of misgovernance and rampant corruption which conspires to deny citizens their essential rights and dignity, it is in the fitness of things that the Citizen’s Right to Information is given greater primacy with regard to privacy.

Hence information provided by individuals in fulfillment of statutory requirements will not be covered by the exemption under Section 8 (1) (j).

It has come out during the hearing before the Commission, – and through the submissions made by the various parties, – that the Appellant is an informer for the Department. Escorts has also raised the matter in its written submissions of 17 September 2009, and asked the Commission to decide, ‘Whether an informer of the I.T. department can seek information in respect of the records of a third party for an ulterior motive?’ The ulterior motive being referred to appears to be the reward money, which the appellant might get.

The Appellant has given a list of additions made by various Tax evasion officers relating to the information being sought by him”

The Order then gives details of such additions (same are not reproduced here) running into crores of rupees.

Thus, the appellant has pointed out that Assessing officers have added hundreds of crores as additional income and CIT (A) has also confirmed some of them. He fears that a lot of alleged tax evasion will go unpunished, leading to a loss of revenue and perhaps his reward money. If citizens monitor this through RTI, it could be a major gain for public revenue and perhaps a good check on corrupt officials.

Based on above, Commission directed PIO to provide the inspection of the records and also the other information sought by the appellant before 15th January 2009.

[Mr. Rakesh Kumar Gupta vs. The PIO c/o CIT (Central)-2 New Delhi: No. CIC/ LS/A/2009/000647/SG/5887 of 14-12-2009]

Part B: The RTI Act

Continuing from October to January BCAJ, the summary of two reports:

One
study by PricewaterhouseCoopers (PWC) as appointed by the Department of
Personnel and Training (DOPT), titled “Understanding the key issues and
constraints in implementing the RTI Act.” Its final report as Executive
Summary is published in June 2009.

Second study by National Campaign for People’s Right to Information (NCPRI) and RTI Assessment

Analysis Group (RaaG), in collaboration with a number of other social
bodies including TISS, Mumbai under the title “Safeguarding the Right to
Information”.

DOPT-PWC Report:

Institutionalising third party audit

It
is strongly felt that in the absence of a strong review mechanism,
there is a high probability that the level of RTI implementation would
regress to lower levels.

Key issues observed

Some of the key facts observed during the study:

Limited infrastructure/processes with SIC to carry out
responsibilities under Sections 19(8) (a), 25(1), 25(2), 25(3f) 25(3g)
and 25(5), leading to non-compliance by PAs with regard to RTI
provisions.

No/inadequate mechanism for monitoring
proactive disclosure, resulting in low compliance to Section 4(1b) of
the RTI Act (65% of the PAs have not published their proactive
disclosure on the websites).

Non-adherence to service levels of 30 days causing delay in providing information to the RTI applicant.

Recommendations

To ensure better service delivery by authorities and officials, third
party audits should be institutionalized to support the Information
Commission in carrying out responsibilities under Sections 19(8)(a),
25(1), 25(2), 25(3f), 25(3g) and 25(5). Institutionalising regular
audits would facilitate the Public Authorities’ compliance with the RTI
Act (through the audit findings made available by Information
Commission). In this context, it is recommended to have a third party
audit (at least annually) to support the Information Commissions and RTI
Implementation Cell to monitor the performance of Public Authorities
and to take appropriate action in case of any deviation.

Moreover, it is also suggested that the SIC website should have a list
of all the Public Authorities within the jurisdiction of the Information
Commission. The website should have a feature for citizens to report
noncompliance (through tick-mark options) for a Public Authority. The
reports generated through this application, would be helpful for a
Public Authority and the Information Commission to take appropriate
actions.

Raag & NCPRI Report:

Current status and Preliminary Findings:

(7) RTI and the Courts

This
component is compiling data on court cases, in which appellants have
challenged State or Central Information Commissions. Analysis is being
driven by the following questions:

What types of CIC and SIC rejections are being taken to the High Court and to the Supreme Court?

What types of appellants are tending to do this?

How quickly is the higher judiciary resolving these cases?

Have judicial rulings, by and large, upheld the spirit of the RTI? In
which cases have judicial rulings tended to be in favour of appellants,
and in which against?

Has the referral of such cases to the
court influenced the offending public authority to provide requested
information, even if there is a judicial ruling?

Preliminary findings

Status
– This analysis has commenced with a review of RTI cases in the Delhi
High Court. Since many of the appeals heard by the Central Information
Commission are referred to the Delhi High Court, this makes it potential
representative of the RTI cases being heard by other High Courts as
well. Additionally, many Delhi Right to Information Act cases are
currently also lying before the Delhi High Court.

While 18
RTI cases have been located in the Delhi High Court records so far, only
15 of these have been selected for examination for analysis for the
Interim Report. These were filed before the Delhi High Court and Supreme
Court of India from 2006 to 2008.

In most of these cases,
the applicant—and not the Government—has taken the case to Court. Only
in four cases has the Union of India (UOI) approached the Courts. Even
though the sample size is small, a preliminary analysis reveals that the
Courts have shown sensitivity by admitting Writ petitions that
challenge the decisions of the Central Information Commission. However,
it must be pointed out that it is premature to comment upon the normal
outcome of such cases given that very few have as yet been decided.

But
given the way cases have been progressing, it can be inferred that many
RTI cases are pursued much like regular cases, in a “run of the mill”
manner. In one pending case, in which the applicant sought information
about the responsibilities of MCD officials charged with cleaning public
places of a certain village of Delhi, the judiciary has ignored the
public cause involved and MCD threats to the applicant and his family.
The case has lain before court for more than 1.5 years.

However,
in other cases, landmark judgments have been made, and that too
expeditiously, pointing to the beginning of systemic change in the
judiciary’s approach to RTI. One such is the Bhagat Singh vs. CIC &
Income Tax Department of Dec 2007, in which the judgement is liberal. It
interprets the exemption to information disclosure under Sec 8 (1) (h)
that disallows disclosure on the ground that “information which would
impede the process of investigation or apprehension or prosecution of
offenders”. The judgment is particularly important as it sets a
precedent and strongly supports the spirit and underlying principles of
the Right to Information Law. Further, the judgment was delivered within
8 months of its filing.

RTI and International Donors

Background:
While international donors fund social, infrastructural, and
institutional capacity -building activity, they have historically only
been required to report to the Indian Government. Resultantly, citizens
often have little information or say in how these programmes work or the
impact they have.

This component of the study is studying donor
disclosure policies to understand what kinds of information they require
donors to share directly with the Indian public, how these policies
compare with the requirements that the Right to Information Act places
upon Indian public authorities, and how the Right to Information Act is
shaping donor thinking on this issue. The analysis will also examine
donor disclosure policies in practice, and whether donors are sharing
the maximum information permissible or just their minimum requirement.
Also being studied is donor spending on RTI programmes in India, to
understand the manner in which they are attempting to influence the RTI
regime in the country.

Eleven international donors are being
studied, including nine of the largest multilateral and bilateral
government donors to India (World Bank, Asian Development Bank, Japanese
Bank for Inter-national Cooperation, GTZ, Russians, United Nations
Development Programme, European Union, DFID and USAID) and two of the
world’s largest private grant -giving foundations with operations in
India (Bill and Melissa Gates Foundation, Ford Foundation).

Research
comprises a desk review of the public information disclosure policies
and practices of the selected international donors, complemented by
face-to -face interviews with key stakeholders (including international
donors’ governance and accountability advisors in India, government
officials, beneficiaries, and members of the public).

Research is
still at a preliminary stage, although the desk review of information
disclosure policies and practices of all donors is now almost complete.

Early findings

UNDP, ADB and World Bank disclosure policies were easily available on
the Internet; other donors’ disclosure policies were not so easily found

While UNDP’s, ADB’s and the World Bank’s public disclosure policies
have undergone a series of revisions, ADB was the first to revise its
policy following stakeholder consultations.

With respect to information that is exempt from disclosure:

UNDP – Broad definition of exceptions

ADB – well defined list

WB – everything else apart from documents about WB strategies and programmes is denied / discretionary

UNDP,
ADB and the World Bank all provide a list of documents related to their
operations (strategies, programmes and projects), but only ADB’s policy
appears to have a presumption in favour of disclosure.

Part C : Others News

Important Pronouncements by the Commission :

When
Shailesh Gandhi, CIC, was in the BCAS office addressing RTI activists
and journalists, he distributed compilation of 8 important and pro-found
pronouncements by the Central Information Commission (Continuing from
January 2010)

2. Alternative routes to access information

No
Claim has been made by the PIO of any exemption under the RTI Act to
deny the information. If a public authority has a process by a Citizen
other than the route provided by the Right to Information Act, it is the
Citizens’ right to decide which route he wishes to use. The existence
of another method of accessing information cannot deny the Citizen his
freedom to use his fundamental right codified under the Right to
Information Act. If Parliament wanted to restrict his right, it would
have been stated in the law. Nobody else has the right to constrain the
rights of the Citizen.

There is no Provision in the Right to
Information Act, which restrains the Citizen’s right to use it, if
another route to access information has been of-fered or is available.
It is a Citizen’s right to use the most convenient and efficacious means
avail-able to him.

Section 2(h) of the RTI Act

In
the last issue of BCAJ, under Part A, was cov-ered the Order of CIC on
section 2(h). I had there mentioned that many bodies operate primarily
as service to the citizens of India but they take a negative view that
they are not covered under section 2(h) and hence RTI Act does not apply
to them.

It is reported that following bodies disputing
application of RTI to them are now held by Delhi H.C to be covered under
RTI Act.

Indian Olympic Association

The Commonwealth Games Organizing Committee

Sanskriti School

Justice Bhat stated:

The
RTI Act recognizes that non-state actors may have responsibilities of
disclosing information which would be useful and necessary for the
people they serve as it furthers the process of empowerment, assures
transparency and makes democracy respon-sive and meaningful.

CIC has ruled that the Bar Councils are covered under the RTI Act and
they have been directed to set-up a mechanized for operation of RTI.
CIC’s decision is based on the fact that Bar Councils are set-up under
the Advocate Act 1961, Passed by Parliament.

Against above rulings, it is interesting to note what happened in the Supreme Court early in January’10

The
Supreme Court stayed the Orissa high court order, which had upheld a
2006 order of Naveen Patnaik government bringing Reliance Power owned
two power distribution companies under the purview of RTI Act.

The
advocate of the power distribution companies argued before the Supreme
Court that the RTI Act was applicable only to “public authority”, the
meaning of which was erroneously expanded by the government and agreed
to by the HC to include the power distribution companies under the RTI
Act.

In this connection remarks of Hon. Justice Chandra-chud as
reported in BCAJ of Dec 09 (Page 117) are very relevant. He said:
“Definition of ‘Information’ given in the Act, covers information
relating to any private body which can be accessed by a Public Authority
under any other law for the time being in force”. Thus, what can be
accessed by Public Authority can be accessed by any individual citizen
also. Therefore, though the implementation is presently focused on
Public governance or Public officials, it has to be extended to private
governance in course of time.

Missing File

nine
applicants got jobs with various central government organisations,
1,993 applicants got placement in state government offices,
quasi-government and local bodies affiliated to the state and the
central government provided placement to 1,265 applicants and 1,115
placements came from private sector.

“The exchange does not give
jobs to lakhs of educated youngsters. Only a lucky few get placements.
They have become irrelevant in today’s privatised economy,” said RTI
economist Chetan Kothari who had filed a query.

The Judgement of the Courts

The
Supreme Court ruled that the judge cannot be asked under the RTI Act as
to why and how he came to a conclusion in a judgement.

Said the
bench of Chief Justice K G Balakrishnan and Justice B S Chauhan: ‘A
judge speaks through his judgments and he is not answerable to anyone as
to why he wrote the judgement in a particular manner’.

Renaming of High Courts

The
BMC has lost the file of a controversial South Mumbai building, which
was in the name of Dawood Ibrahim’s wife. This information was revealed
in a reply to the RTI application filed with the municipal
commissioner’s office. In his reply dated December 22, 2009, T M Bhatia,
assistant engineer-building and factories (C ward), said the file
papers pertaining to the building were not traceable/available.

Disclosure of assets held by Public servants

After
politicians and judges of the Supreme Court, now the assets of babus
have also been prised open to public scrutiny by RTI. In a landmark
order, the Central Information Commission (CIC) has said that disclosure
of information such as assets of public servant, routinely collected by
the public authority, should be made available to the public under the
Right To Information Act.

Employment Exchanges – how they operate!

In
reply to an RTI query, it is gathered that only 4,532 of the total
number of 30 lakh-plus job-seekers, who went through the Maharashtra
employment exchanges last year, got jobs. One hundred and fifty

In
reply to the RTI query, the ministry of law and justice has stated that
it has received the proposal to change names of four high courts.

The proposal to change the names of Bombay HC to Mumbai HC, Calcutta
HC to Kolkata HC, Gauhati HC to Guwahati HC and Madras HC to Chennai HC
is under consideration of the government.

RTI Act and Consumer Protection Act (CPA)

Very
interesting and a landmark judgement both for the RTI Act and the CP
Act has been delivered under the CP Act. Issue is whether failure to
furnish information without valid reason constitutes a deficiency in
service for which compensation can be sought by a consumer complaint.

The
applicant, Dr. Rao won the matter before the District Consumer Forum
but lost it before the Karnataka State Commission. The issue has now
been decided by the National Commission in a trend setting judgement.

The
National Commission observed that the settled law was that even if a
particular law barred the jurisdiction of courts, a complaint could
still be filed under the provision of the CPA as it provided an
additional remedy. The RTI Act did not bar the jurisdiction of the
consumer fora. Also, the provisions for appeal under the RTI Act were
restricted to the failure to furnish the information sought, but there
was no provision to claim compensation for deficiency in service. An
applicant under the RTI Act has to pay fees for getting the information,
and hence he acquires the status of a consumer. If there is any
deficiency in service in respect of providing such information, a
complaint could be filed under the CPA for claiming compensation.

BCAJ Admin

ORDERS OF CIC

Right to information

S. 2(f) :

S. 2(f) defines the word ‘Information’ :

Sunil Kumar had asked Department of Revenue a series of
questions aimed at eliciting from the Department of Revenue their interpretation
of the provisions of the Budget, the Finance Act and the notifications issued
thereof.

Citing certain decisions of the Commission and the definition
of information u/s.2 (f) of the RTI Act as well as on the basis of the
confidentiality of the Budget and its provisions including the Finance Act,
respondents declined to disclose the information through CPIO’s communication
dated 25-3-2010 and the decision of the Appellate Authority, dated 23-4-2010.

Central Information Commissioner (CIC), A. N. Tiwari, held
that ‘given the nature of the queries appellant had included in his RTI
application, it is obvious that he has been seeking from the respondents their
interpretation of various provisions of the Budget, the Finance Act and the
notifications thereof. This cannot qualify to be information u/s.2(f) and hence
has been rightly declined by the respondents.’

During the hearing, it was stated on behalf of the
respondents that on the basis of the feedback received from the citizens and
various trade and financial organisations, government, from time to time, issues
clarifications regarding specific points in various Acts, Rules, notifications,
etc. One such clarification has been issued by the Ministry of Finance covering
most of the grounds and the points mentioned in appellant’s RTI application.
Respondents were willing to provide a copy to the appellant for his reference
and use. They however reiterated their point that it was not open to any private
citizen to use the RTI Act to seek from the respondents their specific comments
about interpretation of laws, Acts, Rules and notifications. CIC held that
respondents’ contention is valid and was upheld.

[Sunil Kumar v. Department of Revenue, No. CIC/AT/A/2010/00342
dated 3-9-2010]

Co-operative
Bank

— whether Public Authority : S. 2(h) :

CIC Mr. M. L. Sharma has ruled that Co-operative Banks are
not Public Authority in the matter of two appeals by Preeti Goyal.

CIC stated that a bare reading of clause (h) of S. 2 of the
RTI Act would indicate that a private body or a co-operative society can be said
to fall in the domain of this clause, if it is substantially financed, directly
or indirectly, by the funds provided by the appropriate Government. Admittedly,
the society in question has not received any funds either from the Central
Government or the Government of Union Territory of Chandigarh. By this logic, it
cannot be said to be a public authority. Needless to say, once it is held that
the society in question is not a public authority, it has no liability to
provide any information under the RTI Act.

General Manager Mr. Dhillon of Chandigarh State Co-operative
Bank Ltd. appeared before the Commission and in a written representation relied
on certain decisions, the ratio whereof is that Co-operative Banks do not fall
in the ambit of S. 2(h) of the RTI Act.

The relevant para of the representation is extracted below :

“In the latest judgment reported as 2009 (5) RCR (Civil) 394
— Bidar District Central Co-operative Bank Ltd., Bidar v. The Karnataka
Information Commission, Bangalore and another and 2009 (5) RCR (Civil) 833;
Dattaprasad Co-operative Housing Society Ltd. v. The Karnataka Information
Commission, Bangalore and another, it has been held by the Karnataka High Court
that co-operative society does not fall within the purview of S. 2(h) of the RTI
Act. Similar view has been taken by the Bombay High Court in a judgment reported
as AIR 2009 Bombay 75, wherein it has been held that a Co-operative Bank
registered under the Maharashtra Co-operative Societies Act is not a public
authority.”

Based on above CIC held that the Chandigarh State
Co-operative Bank Ltd. is not a public authority.

[Preeti Goyal v. Chandigarh State Co-operative Bank Ltd.,
Appeals No. CIC/LS/A/2010/000657 & 658, decision dated 16-9-2010]

PART B : THE RTI ACT, 2005

In the last two issues of BCAJ, I had covered talks by Gopal
Krishna Gandhi and Nandan Nilekani at the inaugural and concluding sessions
respectively at CIC’s 5th annual convention held on 13th & 14th September 2010.
Hereunder is the brief summary of talks at the inaugural session by Mr. Veerappa
Moily and at four technical sessions in between :

Dr. Veerappa Moily agreed RTI has caught our imagination.

Right to Information has the key to strengthening
participatory democracy and ushering in people centred governance. For creation
of a global information society, it is essential to safeguard plurality of
opinions, and to promote ‘open access to networks for service and information
suppliers’ and ‘free expression of ideas’.

The 1st technical session ‘RTI and Public Private
Partnership Projects’ was chaired by A. N. Tiwari, CIC (now Chief Central
Information Commissioner).

He summarised the discussion and concluded that many
infrastructure projects on PPP mode satisfy the basic tenets of a Public
Authority as defined under the RTI Act. He also observed that in the years to
come the RTI may go a long way in operationalising the PPP more objectively. He
was of the opinion that the governments themselves should declare whether a
particular PPP project is a public authority under RTI Act or not.

The 2nd technical session : ‘Responsibility of Political
Leadership in Promoting RTI’ was chaired by V. Narayansamy, Hon’ble Minister
of State, Planning & Parliamentary Affairs.

Sri Narayansamy: Right to Information is a tool in the hands of citizens which keeps the bureaucracy on its toes. However, he stated that the citizens are suffering in getting the information, even though they fulfill all their obligations as required under the Act. They are given misleading, truncated and irrelevant information and some people misuse it as well. He commended the role of the Commissions and cited two decisions of CIC. In one of the cases the Commission directed the PMO to disclose the assets of the Ministers, which they complied and while in another case, the Commission, directed the DoPT to disclose file notings. The Hon’ble Minister expressed his grief over the killings/threats of RTI activists. He said that the Government is sensitive to the situation and is bringing about special legislation for whistle blowers protection and privacy Act. The role of the politicians, the law makers does not stop with the enactment, it includes efforts in ensuring implementation. Shri Narayansamy concluded that the Judiciary should be made accountable. All three wings of the government have to function under the provisions of the RTI Act.

The 3rd technical session : ‘RTI & Judiciary’ was chaired by Wajahat Habibullah. One of the panelists was Justice A. P. Shah. His conclusions were:

Conclusion : Demands for change to existing systems in the judiciary must be met rationally, bearing in mind the objectives sought to be achieved. Will the proposed changes promote public respect for the judiciary and the rule of law? Will they strengthen democratic principles ? How do they relate to the constitutional requirement of judicial independence? The guiding principle should always be accountability but let it always be commensurate with judicial independence and impartiality. The challenge is to develop mechanisms of accountability that do not undermine judicial independence.

The 4th Technical Session : ‘Challenges and Opportunities in RTI — Role and Responsibility of Media/CSO’ was chaired by Ms. Mrinal Pande, Chairperson, Prasar Bharti.

One of the panelists, Ms. Ravi Singh stated that RTI is as important as the right to food and right to education. Since constant vigilance is the price for freedom, the role of NGOs, the media, the courts and the civil society is important.

Another panelist, Shailesh Gandhi observed that all the stakeholders of the RTI have to work together to create a supportive environment for the Act to flourish.

Part C: Information On & Around

Ration offices in Mumbai and around:

Vigilance Committees play a crucial role in addressing the grievances of local residents against ration shops. But information obtained under the RTI has revealed that due to vacancies in these committees, several areas are under represented.

Anil Galgali, an RTI activist who procured this information, said, “A Vigilance Committee is supposed to meet once a month to redress the grievance of the residents. But the provision for a Vigilance Committee is meaningless if it does not have any members.”

The vigilance committee also ensures that commodities in rationing shops are sold as per the directives of the government. “An inefficient vigilance committee is a setback for below poverty line (BPL) ration card holders who rely heavily of essential items sold through ration shops. Absence of an efficient vigilance body means that there are no effective checks and balances on the public distribution system (PDS),” he added.

It has come to light that in five of the 53 rationing offices in Mumbai, Thane and Navi Mumbai, there is not a single member on the vigilance committee.

University of Mumbai flouting RTI Act:

PIO of the University of Mumbai and also AA never responded to the RTI Application/Appeal filed by S. K. Nangia, RTI activist even after repeated reminders. However, on the application dated 15-3-2010, finally, AA fixed the hearing on 30-10-2010.

Now, the activist has written to Rajan Welukar, vice-chancellor at the University of Mumbai, highlighting the problems faced by citizens in seeking information from the university. He has also asked for reasons for the delay of more than six months for an appeal hearing to be held.

Senior official at the university states that they were tied up with other routine work in the university and shall write a regret letter to the applicant for the delay.

Taxis in Mumbai:

According to the data provided by the RTO, from April 2009 to March 2010, 303 cases of refusals, 1,236 cases of meter tampering and over charging and 85 offences of rude behaviour were registered. In comparison, complaints launched between April and September shot up to 3,500, with the offence of drivers refusing multiplying eight times from 303 to 2,400 cases.

STOP PRESS

Information on selection of Judges:

A two-judge Bench of the Supreme Court wondered whether the time had come to make public the details of appointment of judges to the Supreme Court and High Courts. A Bench comprising Justices B. Sudershan Reddy and S. S. Nijjar referred to a constitution Bench, the crucial question on disclosing correspondence between the Chief Justice of India and the Law Minister on appointment of HC and SC judges under the RTI Act.

This is a significant development as 19 High Courts have opposed the order of the Delhi HC allowing disclosure of information on appointment of judges. Even the Delhi HC has opposed the pronouncement on administrative grounds. The sole exception is the Gauhati HC.

Echoing the views of the HCs, Attorney General G. E. Vahanvati told the Bench, “Information made available to the CJI in respect of appointment of judges of HCs as well as the SC is held by him in trust and in fiduciary capacity.”

Justice Reddy said, “The current debate is a sign of a healthy nation. This debate on the Constitution involves a great and fundamental issue.” Writing the judgment for the Bench, he said precedents relating to interpretation of the Constitution on this issue need not mean stagnancy. “The ultimate question must be, what do the words of the text (Constitution) mean in our time,” he said. The bench framed the following questions for the consideration of constitution Bench:

Whether the concept of independence of judiciary requires and demands prohibition of furnishing of the information sought?

Whether the information sought amounts to interference in the functioning of judiciary?

Whether the information sought cannot be furnished to avoid any erosion in the credibility of the decisions and to ensure a free and frank expression of honest opinion by all constitutional functionaries, which is essential for effective consultation and for taking the right decision ?

Whether the information sought is exempt u/s.8(1)(j) of the RTI Act?

Very sensitive and crucial issue for RTI to get wide spectrum of coverage now awaits fill this judgment gets pronounced.

BCAJ Admin

Right To Information

Part A: Decisions of the Court and CIC

S. 2(h), 2(f), 8(1)(e), 8(1)(j) of the RTI Act :

It is a very unusual court case when the Supreme Court of India (SCI) files writ petition to the Delhi High Court (DHC) ! The issue came up before the DHC whether the Chief Justice of India (CJI) is a Public Authority and whether CPIO of the SCI is different from the office of the CJI and if so, whether the RTI Act covers the office of CJI.

The writ petition covers a number of issues and the judgment runs into 70 printed pages (85 paras). Decisions on some of the issues are reported hereunder.

The CJI is a public authority u/s.2(h) of the RTI Act.

Asset declaration by the SC Judges, pursuant to the 1997 resolution is ‘Information’ within the meaning of the expression u/s.2(f) of the RTI Act. In Para 36 of the judgment, the DHC gave a very significant interpretation for this expression ‘Information’. It says :

As is evident, the definition is extremely wide; the crucial words are ‘any material in any form’. The other terms amplify these words, explaining the kind of forms in which information could be held by an authority. It also includes ‘information relating to any private body, which can be accessed by a public authority under any other law for the time being in force.’ Facially, the definition comprehends all matters which fall within the expression ‘material in any form’. There is no justification in cutting down their amplitude by importing notions of those materials which are mandatorily held by it. The emphasis is on the information available, having regard to the objectives of the Act; not the manner in which information is obtained or secured by the authority. Thus, inter se correspondence of public authorities may lead to exchange of information or file sharing; in the course of such consultative process, if the authority borrowing the information is possessed of it, even temporarily, it has to account for it, as it is ‘material’ held. As far as the later part of the definition, i.e., accessing of information by or under any law is concerned, it appears that this refers to what is with a private organisation, but can be accessed by the public authority, under law. The Court deduces this, because the theme is included by the conjunctive ‘and’; but for such inclusion, such private information would not have been subjected to the regime of the Act. Therefore, it is held that all ‘material in any form’ includes all manner of information; the absence of specific exclusion leads this Court to conclude that asset declarations by judges, held by the CJI are ‘information’, u/s.2(f).

CJI does not hold such declarations in a fiduciary capacity or relationship and hence not exempt under clause (e) of S. 8(1) of the RTI Act.

Contents of asset declarations pursuant to the 1997 and the 1999 Conference Resolution are entitled to be treated as personal information, and may be accessed in accordance with the procedure prescribed u/s.8(1)(j). Here, I also reproduce para 62 of the judgment which is very enlightening :

The right to access public information, that is, information in the possession of State agencies and governments in democracies, is an accountability measure empowering citizens to be aware of the action taken by such state ‘actors’. This transparency value, at the same time, has to be reconciled with the legal interests protected by law, such as other fundamental rights, particularly the fundamental right to privacy. Certain conflicts may underlie particular cases of access to information and the protection of personal data, arising from the fact that both rights cannot be exercised absolutely in all cases. The rights of all those affected must be respected, and no single right must prevail over others, except in clear and express circumstances. To achieve these objectives, and resolve the underlying tension between the two (sometimes) conflicting values, the Act reveals a well-defined list of 11 kinds of matters that cannot be made public, u/s.8(1). There are two types of information seen as exceptions to access; the first usually refers to those matters limited only to the State in protection of the general public good, such as national security, international relations, confidentiality in cabinet meetings, etc. The second class of information with State or its agencies, is personal data of individual citizens, investigative processes, or confidential information disclosed by artificial or juristic entities, like corporations, etc. Individuals’ personal data is protected by the laws of access to confidential data and by privacy rights. Often these guarantees — right to access information, and right to privacy, occur at the same regulatory level. The Universal Declaration of Human Rights, through Article 19 articulates the right to information; Article 12 at the same time, protects the right to privacy :

“no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference of attacks.”

[CPIO, Supreme Court of India v. Subhash Chandra Agarwal & Anr., W.P. (C) 288/2009 decided on 2-9-2009]

S. 8(1)(a), (e) and (j) of the RTI Act :

The applicant, Sh. Chetan Kothari (of Mumbai) filed an RTI application with the CPIO, Ministry of Health & Family Welfare seeking information about medical, surgical or such other health-related problems of the Prime Minister. Specific points as follows :

(a) Major and minor types of operations done on the Prime Ministers of India during their tenure as Prime Ministers during the last five years, giving yearwise break-up of major/minor surgeries separately;

(b) Medical-related expenses incurred during each such operation, giving yearwise break-up of last five years;

(c) For how many days were the patients hospitalised during such major/minor operations giving yearwise break-up with names of the hospitals for last five years;

(d) Who bore the medical expenditure, whether deducted from PM’s salary or paid by the Government of India in a yearwise break-up form;

Both CPIO and the first AA refused the information sought on the ground that the medical care scheme for the Prime Minister being a classified document, information pertaining to the same was exempt from disclosure.

The evasive response of the Respondent Public Authority compelled the appellant to file a second appeal before the ere. The appellant contended that denial of information by the respondent public authority without quoting the appropriate Section, under which exemption from disclosure was sought, indicated the deliberate attempt of the public authority of hiding the information and leading to wrongful denial of information.

Extracts from the decision:

The first query seeks information about the number of major and minor operations done on the Prime Minister / s during the last five years. This information is an indicator of the health and medical history of the present Prime Minister of the country and is classified as sensitive and ‘Secret’ information as per the Government Notification as also defined in the Office Memorandum of the Government of India, Ministry of Home Affairs, dated 6-2-2002 titled Guidelines on review of departmental security instructions wherein the Clause 2.1 of the Security Classifications clearly defined ‘Secret’ as “…. information and material, the unauthorised disclosure of which could be expected to cause serious damage to the national security or national interests or cause serious embarrassment to the Government in its functioning”. Thus this information is exempt u/s.8 (l)(a)’of the RTI Act since disclosure of information about the health and/ or medical problems of the Prime Minister could be misused and/or abused to the detriment of the national interest and security. Hence, such sensitive information, which could jeopardize national security and interest, need not be disclosed.

In so far as the information as sought by the appellant against the points (b), (c) and (d) is concerned, some information already exists in the public domain like the information pertaining to the present Prime Minister’s by-pass heart surgery, number of days spent in hospital, medical expenses incurred for the operation and as to who – paid for the operation.

The remaining information, if any, still unavailable in public domain, despite the wide coverage by the media, deals with information of personal nature and is exempt under the scope of S. 8(1)G) of the RTI Act. In fact, the appellant has not made out a case that the said information is sought to serve any cause of larger public interest.

The respondent in his oral submissions has further sought exemption from disclosure of information under provisions of S. 8(1)(e) of the RTI Act, on account of the said information being of fiduciary nature between the Prime Minister and his team of doctors and medical experts. At this juncture, ‘fiduciary relation’ needs to be analysed in the light of its various connotations. The word ‘fiduciary’ is derived from the Latin termfiducia meaning’trust’.

The fiduciary relationship can also be one of moral or personal responsibility due to the superior knowledge and training of the fiduciary as compared to the one whose affairs the fiduciary is handling. In short, it is a relationship wherein one person places complete confidence in another in regard to a particular transaction or one’s general affairs of business.

S. 16 of Indian Contract Act also clarifies ‘fiduciary relationship’ while defining ‘Undue Influence’.

In fiduciary relationship, a person with the legal duty to act primarily for another’s benefit enjoys a position of trust, good faith and responsibility.

Thus the word ‘Fiduciary’ is often used as an alternative term for ‘trustee’. The relationship between doctor-patient, lawyer-client or banker-customer are the various examples of fiduciary relationship. Thus, the Respondent Public Authority stands in fiduciary relation with the Prime Minister, holding the information in trust/ confidence.

In view of the above-mentioned facts and circumstances of the case, the Commission observes that the information, as sought by the appellant, and if not already available in the public domain, the respondent public authority holding the said information in fiduciary capacity on behalf of their patient (in this case, the Prime Minister), is exempt under provisions of S. 8(1)(e) of the RTI Act. So whether the patient is a Head of a State or a common person, the information nevertheless re-mains fiduciary and is exempt from disclosure to the public at large,since it is held in great confidence and trust.

Thus, it was held by the Commission that the information as sought by the appellant is exempt on the threefold grounds of national security, protection of individual’s right to privacy and also because the information is available with the DGHS in fiduciary capacity.

Therefore, among the information sought, the in-formation about the health and medical problems of the present and former Prime Ministers which already exists in the public domain, due to extensive media coverage or otherwise, like the recent cardiac surgery of the present Prime Minister, may be provided by the CPIO by 15 November, 2009 to the appellant.

[Sh. Chetan Kothari v. 1. Ministry of Health & Family Welfare 2. DGHS, CIC/ AD/C/2009/000620 decided on act. 15, 2009 by CIC Annapurna Dixit]

Part 2 : The RTI Act

Continuing from October & November BCAl, the summary of two reports :

One study by PriceWaterhouseCoopers (PWC), appointed by the Department of Personnel and Training (DOPT), is titled as ‘Understanding the key issues and constraints in implementing the RTI Act.’ Its final report as Executive Summary is published in June 2009.

DOPT-PWC report :

Common infrastructure & capacity building:

The study also focussed on the information provid-ers to understand how well-equipped the Government/PA machinery is to respond to the needs of the RTI. This was studied from various aspects – training/knowledge, usage of IT, availability of basic infrastructure (like availability of photocopier at Panchayat level), etc. and whether adequate bud-gets existed to address the limitation.

o Key issues:

Record management:

o More than 38% of PIOs stated ineffective record management system for delay in pro-cessing

o Approximately 43% of the PIOs were not aware of the record management guidelines

Training/Knowledge:

o Approximately 45% of PIOs mentioned that they had not been provided training in RTI

o Approximately 43% of PIOs were not aware of the proactive disclosure of their PAs

o Approximately 39% of the PIOs were not aware of key SIC (State Information Commission) judgments

o Training was limited to the provision of the RTIAct. Key aspects related to public dealing, motivation, technology, service levels, etc were not addressed.

Usage of information technology:

o Lack of software application capturing details mentioned in S. 25(3)

o Lack of software application to improve effi-ciency at the Information Commission

Low motivation of PIOs :

o Most of the PIOs have taken up the role un-willingly, leading to low motivation among them. Often, junior officers have been given the role of the PIOs and First Appellate Authority

o There was a perception among PIOs that lack of adequate budget and infrastructure ham-pers RTI implementation

o Approximately 89% PIOs said that there was no additional allocation of staff for RTI, while their work has increased.

The gaps highlighted above are partly due to lack of clear accountability established through appropriate Government rules and lack of controls to measure the level! effectiveness of implementation. This has been addressed in the report through detailing the roles and responsibilities of various entities and establishing a control mechanism through the use of IT and Third-Party Audits.

o Recommendations:

Re-organisation of record management system to promote information management. A separate study is recommended to improve the current record management guidelines and make them ‘RTI friendly’.

The following interventions in training to be taken:

o Knowledge Resource Centre should be the owner of developing and updating the training content.

o At the State level, the State Nodal Department Agency should design a training implementation plan with support from the State Administrative Training Institute and National Training Agency.

Head of the Public Authority should own the responsibility of training the officials in its Department through State Administrative Training Institute or State-empanelled agencies.

Preparation of RTI ready plan: It is suggested that each Public Authority should do a self evaluation and identify areas of improvements and budget requirements. This would help in meeting the infrastructural needs, thereby meeting the requirements of the Act.

In order to ensure good performance of PIOs in implementing the RTI Act :

Allocation of responsibility of PIOs and AAs ~ to senior level officials in a Public Authority
is required.

o A mandatory column on the PlO’s performance must be added into the forms of Annual Confidential Reports (ACRs)/even if the posting as PlO is only a part of the over-all responsibilities handled by him/her.

o A monetary incentive for the PIOs may be considered at PA level. Often, the PIOs are”‘ liable to pay penalty, for reasons beyond their control. So while a penalty has been man-dated by the Act, the PAs should also get rewarded for good performance. This is important at places where PIOs handle a high volume of RTI applications.

Specific software applications/’information request management’ for implementation at Pub-lic Authority level and at the Information Commission.

Usage of RTI-compliant standard template for quick and rational responses to the applicant.

The ARC report had suggested that as a one time measure, GoI should earmark 1% of the funds of all flagship programmes for a period of five years for updating records, improving infrastructure, creating manuals, etc. (an amount not exceeding 25% of this should be utilised for awareness generation). This was a good suggestion to address the above-mentioned issues. On the same lines, it is suggested that all Central and State Ministries/Departments should earmark 1% of their planned budgets for implementing the recommendations suggested in this report.

Raag & NCPRI Report:

Current status and preliminary findings:

3) Analysis of RTI Rules made by States and High Courts:

Background: The RTI empowers State Governments and Competent Authorities to frame rules to operationalise the Act, as also to educate both Government functionaries and citizens about the Act. These rules are critical, since they detail application fees, payment for information requested, and mode of payment. Moreover, the RTI Act [So 7(5)] states that the application fee shall be ‘reasonable’, so as to facilitate the use of the Act by ordinary citizens.

The People’s RTI Assessment 2008 is analysing the RTI rules made by the Central and State Governments (appropriate government) and the Supreme Court, High Courts, the Parliament and State Legislatures (competent authorities) to determine whether they keep with the Act in letter and in spirit, and how people and transparency friendly they are. The necessary data was collected through desk research and by filing RTI applications asking for the required information.

The analysis of High Court RTI rules is now almost complete, as is that of the variety of RTI-related payment modes required by individual states.

Preliminary findings:

High Court R1’I rules – Of India’s 21 High Courts (excepting in [ammu and Kashmir), RTI rules have been framed for at least 17 (Allahabad, Andhra

Pradesh, Assam, Chhattisgarh, Delhi, Gujarat, Himachal Pradesh, Jharkhand, Karnataka, Kerala, Kolkata, Madras, Mumbai, Orissa, Patna, Punjab, Haryana, and Rajasthan).

A detailed analysis of these rules suggests that many of these rules seem to be in violation of the RTI Act, and some go beyond the scope of the RTI Act, under which they have been framed.

For example, the High Courts of Karnataka, Chhattisgarh, Delhi, Gujarat, Punjab and Haryana have through the rules, sought to add exemptions over and above the exemptions specified in the RTI Act, specifically in S. 8(1) and S. 9. These High Courts have also sought to set up, through the rules, an appeals process which is at variance with that laid down in the RTI Act. The RTI rules of the High Courts of Delhi, Kolkata, and Gujarat also ignore the penalties specified in the RTI Act and specify their own penalties which are at variance with the ones specified in the RTI Act.

Similarly, the High Courts of Patna, Punjab & Haryana, Gujarat, Delhi, and Himachal Pradesh have framed rules that explicitly violate S. 6(3) of the RTI Act. Whereas the RTI Act says that where a PlO receives an application that in whole or part asks for information that is with some other public authority, the PIa must transfer that information to the concerned PIa within 5 days. However, the rules of the said High Courts state that all applications shall be rejected if the information they seek is outside the jurisdiction of the public information officer. These rules go on to declare that applications will also be rejected if the information they seek can be obtained under High Court rules or other general rules (Civil/Criminal) operational in a High Court. This is despite the fact that the RTI Act specifies that where there is an inconsistency with any other law, the RTI Act will prevail (S. 22).

All this is despite the fact that there are several rulings of the Supreme Court of India saying that rules cannot go beyond or modify the statute under which they are framed.

Modes of payment – In filing RTI applications in states other than the one you reside in, a major problem is the transmission of application fee and the additional fee that is to be paid for photocopying, etc. Different states prescribe different modes of payment (and different rates of payment). In some states they only accept treasury chalans, but making treasury chalans in Delhi for other states has proved to be nearly an impossible task and despite spending nearly a week running around, we have not yet been successful. Others demand court fee stamps or non-judicial paper of their state – which of course is not available in Delhi or in any other state!

Demand Drafts are also sometimes problematic, since these can only be accepted if made in the name of a specifically-designated official and the name of the designated officer is often not available, not even on the PA website or the State RTI portal. The RAAG team had to call up each department, and even then it was difficult to get this information. In many cases, we were thus compelled to request our teams in the concerned state to make payment on our behalf. But this is not possible for all citizens to do.

Part C : Other News

Blatant case of corruption exposed:

In a blatant case of corruption, a civic body spent Rs.2.5 lakh on fitting paver blocks on a particular road. But the road continues to be in as pathetic a state as ever.

On paper, the Kalyan-Dombivli Municipal Corporation (KDMC) is said to have got the work done from a contractor, even paid him the money. But the paver blocks are nowhere in sight.

As per papers available with Mumbai Mirror, paver blocks were to be installed on a 300 metre stretch of Gaushala Road in Kalyan (W). The task was sanctioned in March 2008 and work began in November 2008, the work was completed in January 2009. What’s more, a month later KDMC even paid the contractor Rs.2.5 lakh !

The seam was exposed after Narsinh Deshmukh, from Kalyan, obtained details under the RTI Act, and even filed multiple complaints. When nothing came of the complaints, he decided to go on a hunger strike.

“I just sat on the footpath with all the documents. I also initiated a signature campaign. However, hours after I began my hunger strike, it started raining heavily and my resolve was weakened,” he said.

But friends and locals who had seen the papers pertaining to the road, got him umbrellas and stood by him.

Finally, KDMC Commissioner Govind Rathod heard about Deshmukh’s hunger strike, and decided to check things out. “I went to the road and found that paver blocks were not in sight. Later, I found that our engineers had got the paver blocks fixed on another road, which was a private area,” confirmed Rathod. He added that it is nothing but a blatant case of corruption.

Rathod immediately ordered an inquiry, and even issued show-cause notices to a deputy engineer and junior engineer concerned. It was only after the inquiry committee was set up that Deshmukh called off his hunger strike.

Rs.28 lakh on decoration, mostly on flowers!

When Karnataka Government decided to hold cabinet meeting in Gulbarga, they spent Rs.28 lakh on decoration alone – most of it on flowers. Information was obtained by The Times of India by filing RTI query.

The decoration expenditure included putting up many buntings and welcome arches for 34 ministers, their secretaries and staff, who had taken the trouble of travelling 623 km from Bangalore to Gulbarga for the cabinet meeting.

The total expenditure for this one meeting was a shade lower than Rs.1 crore – Rs.92.39 lakh.

Speed-Post is now ‘snail’ post! !

An article sent through Speed-Post is supposed to reach its destination – be it any part of the country within 24 hours. However, Post Office data shows that 27,774 items sent even within Mumbai limits from Post Offices in the western suburbs overshot the deadline.

The 2006 postal directive to all Post Offices states that under the money-back guarantee scheme, the sender has the right to ask for refund in case the article does not reach within the stipulated time. “It is unfortunate that things sent to destination even within Mumbai do not reach on time,” said Dadar based RTI activist Milind Mulay. Articles, worth around Rs.5.90 lakh, were delivered late. Mulay claimed that all the senders should now demand for
a refund.

Political posters in Mumbai :

In 2008, political parties plastered the city with approximately 20 lakh posters and hoardings of candidates – birthdays, festival greetings, victories, welcomes, etc. Of these, just 1,590 were legal as they had taken permission from the BMC. This means 19,98,410posters, etc. were liable to pay a fine to the BMC – between Rs.1,000 and Rs.5,000 each.

RTI application has revealed that not a single political party paid the fine, a loss of Rs.30 lakh approxi-mately, to the BMC exchequer.

This year too, till September 19, of the 52,788 political posters, just 1,349 had BMC permission. Here again not a rupee was paid to the BMC – a loss of Rs.12 lakh. The same was true for 2007. There are no figures available for the pre-assembly and post-poll posters, etc., but the figures would be phenomenal.

In contrast, the BMC collected Rs.51,89,901 as fine from non-political hoardings, primarily of films, product advertisements, etc.

R. B. Bhosale, Deputy Municipal Commissioner (Special) said, “It is very difficult to nail an offender in the case of illegal posters/banners/hoardings. For instance, if it’s a banner celebrating Vilasrao Deshmukh’s birthday, we can’t go and ask him to pay the fine. Even if it has the signature of the party’s office bearer’s name, he washes his hands off, saying he hadn’t authorised it. For non-political hoardings there is always a mention of a store or a product and it is easier to nail the offender.”

Leader of Opposition in RTI ambit :

After ruling that the office of the Supreme Court of India comes under the ambit of the Right to Information (RTI) Act, the Central Information Commission has ruled that the office of the Leader of Opposition in the Lok Sabha was also covered under the RTI Act. It is a public authority as it is created by a notification of the government, but reserved his decision on whether the office was part of the Lok Sabha Secretariat or an independent office. Disregarding the orders of the ClC, the Lok Sabha Secretariat has not set up the information office for the leader of opposition as per the requirement of the RTI Act despite repeated letters from L. K. Advani’s office.

How much of snacks, etc. in 8 months!

An RTI query revealed that Puducherry Chief Minister V. Vaithilingam and his five colleagues had spent more than Rs.36 lakh on tea, snacks and beverages while hosting visitors in just eight months between Sept. 2008 and April this year. Welfare Minister topped the list by spending Rs.l0.5 lakh.

Do the Right Thing:

The limes of India in the Editional on November 3, 2009 covers some significant points on life in a democracy. I reproduce it fully hereunder:

It has been four years since the Right to Information (RTI)Act came into force, ushering in a new era of transparency and accountability, or so it was hoped. While RTI might not have been the unqualified success many expected it to be, it is an important tool that civil society can use to keep the government honest. That’s why we are watching the debate raging over the appointment of the next Chief Information Commissioner (ClC) with some apprehension.

Civil society groups have every right to suggest a name for a post as important as that of the ClC. RTI is an instrument that gives citizens some measure of control over information, and it is understandable that civil society would be wary that excessive intervention from: the bureaucracy would blunt the Act’s powers. But by asking that decorated police officer Kiran Bedi be appointed to the top post and demanding that the merits of a different choice be explained to them, information rights activists have polarised the debate to the point of blackmaiL

Lobbies are a fact of life in a democracy, but the kind of pressure tactics that those lobbying on behalf of Bedi have employed are likely to put the government on the defensive. In entering into a confrontation with the government over the post of ClC, the activists have failed to take into account that it is not only they who have a stake in RTI and its functioning, the State is also a stakeholder, and as with all disagreements where many actors are involved, all views must be taken on board and a consensus involved.

Since its inception, RTI has met with mixed success. The results of a recent study into the conduct of information commissioners across the country indicate that only 27% of RTI applicants receive the information they asked for, while a significant chunk of the population remains unaware of how to file an application for information. Another potential problem is that only two of every 100 RTI Act violations are penalised. Even when Information Commissioners direct officers to release information, a majority- as much a 61% – ignore the order. With so many questions over the implementation of the Act, it is important that the debate over RTI is not restricted to the appointment of the ClC. Information rights activists should work towards strengthening RTI by beginning a discussion on how best to expand its scope.

(Arvind Kejriwal retorted on above as published in The Times of India on November 6, 2009. Though not reproduced here, due to constraint of space, you may view it on timesofindia.indiatimes.com)

BCAJ Admin

ORDERS OF CIC

Right to information

Part A: ORDERS OF CIC

S. 8(1)(e) & (h), S. 11 and S. 22 :

The first time a multi–member Bench of the Central
Information Commission has not given a unanimous decision. It is a split
decision. Two Information Commissioners : Mr. A. N. Tiwari and Mr. Satyananda
Misra delivered one decision and Information Commissioner Mr. Shailesh Gandhi
delivered the counterdecision.

Mr. C. Seetharamaiah (Mr. CS) made an RTI application to the
Commissionerate of Customs and Central Excise (CCCE), in which he requested for
the correspondence, telephone conversations, etc. between the Central Bureau of
Investigation (CBI) and CCCE in connection with the prosecution under the
Prevention of Corruption Act launched
on his son who was working as an Inspector of Central Excise.

The CPIO and the AA denied the information stating that if
furnished, it would impede the process of prosecution, exemption being covered
u/s.8(1)(h).

Further, the AA stated that as the information sought for
includes the third party’s (CBI) investigation report, the matter was referred
to CBI and it had replied that the same may not be revealed as the case is under
trial and parting with these documents would impede the prosecution of
offenders.

Due to the fact that certain important points of law needed
to be decided, the matter was referred to a three-member Bench by Mr. A. N.
Tiwari.

In the proceedings of this matter, all 3 parties viz.,
Mr. CS, CCCE and CBI made extensive submissions: Mr. CS submitted that the very
purpose of the RTI Act would be defeated if such information is not furnished.
“The officers who are being prosecuted for matters pertaining to discharge of
their official duties, if innocent, have to go through the vexatious prosecution
for years together. Revealing of information, as provided under the Right to
Information Act, 2005, may hasten the judicial process and help the innocent. As
already held by the Central Information Commission, there cannot be misuse of
the truth and the information available to a prosecutor should be made available
to the alleged offender also. It would be appreciable for everyone if the pace
of the judicial process is increased with the help of information obtained under
spirit of democracy.”

The CCCE and CBI argued that an accused in an ongoing
prosecution should not be allowed to access any information which may be
evidence in that prosecution. An accused in ongoing prosecution is free to
demand such information from the Trial Court and it is a matter which is
entirely within the jurisdiction and the discretion of the Trial Court.

Two members stated that the word ‘impede’ used in
S. 8(1)(h) holds the key to whether information requested by the appellant
should be allowed to be disclosed.

It was also the two members’ view that information which is
evidence or is related to evidence in an ongoing prosecution comes under the
control of the Trial Court within the meaning of S. 2(j) of the RTI Act, which
states as follows :

‘ “right to information” means the right to information
accessible under this Act which is held by or under the control of any
public authority and includes the right to . . . . . .’

I now reproduce 3 paras (part or full) of the decision :

28. It is significant that this S. 2(j) uses two
expressions about the location of given information, i.e., ‘held’ and
‘under the control of’. In our view, expression ‘held’ implies that a public
authority has physical possession of given information. The word ‘under the
control of’ implies that the information, regardless of which public authority
holds it, is under the control of a specific public authority on whose orders
alone it can be produced in a given proceeding. In the present case, the
material sought by the appellant is undoubtedly related to an ongoing Court
proceeding and hence it can be rightly said to be under the control of the
Trial Court, who alone can decide how the information is to be dispensed. Any
action under the RTI Act or any other Act for disclosure of that information
to the very party who is arraigned before the Trial Court or to anyone
representing that party, would have the effect of interfering with the
discretion of the Court, thereby impeding an extant prosecution proceeding.

29. Since the Information requested by the appellant is
under the control of the Trial Court, it is open to the appellant to approach
that Court through an appropriate proceeding under the criminal laws or if he
so wishes, u/s.6(1) of the RTI Act. The Court can then take action u/s.2(f) of
the RTI Act in case it decides that the petitioner should be allowed access to
the information he had requested. The key point is that either of these two
actions has to be before the Trial Court and not the respondent-public
authority (viz. Office of Commissioner of Customs, Central Excise and
Service Tax) or the third party (viz. CBI) as in this case. We agree
with the respondents that the integrity of a criminal proceeding before a
Trial Court in matters of what to allow to be produced as evidence should be
taken by the Court itself and not otherwise. We also note the fact that under
criminal laws, a public authority is authorised not to produce a certain
information or record in the Trial Court unless so directed by the Court
itself. Forcing the public authority to part with any such information — which
it would otherwise not have disclosed before the Trial Court — through an RTI
— proceedings would amount to imposing on the prosecuting public authority,
obligations which it was not obliged to bear.

30. It is, therefore, important that all determinations
about disclosure of any information relating to an ongoing prosecution should
be through the agency of the Trial Court and not otherwise.

The two members further noted :

33. According to the preamble to the RTI Act, one of the
purposes the Act designed to sub-serve was to combat corruption. We look
askance at any effort to convert the RTI Act into a tool to weaken the edifice
of law which seeks to bring to book errant public servants, especially when
such public servants have all the means available to them to present their
case before the Trial Court and seek from it the very information they now
want them to be provided through the RTI Act.

34. The two members also noted that their
decision is also backed by the fact that the whole matter falls within the
ambit of S. 11(1) read with S. 7(7) of the Act since “it relates to or has been
supplied by a third party and has been treated as confidential by that third
party…..”

CBI had argued
that its objection to disclosure of information u/s.11 can be ignored only if
“public interest in disclosure outweighs in importance any possible harm or
injury to the interests of such third-party”.

CBI had argued
that there was no public interest. On the contrary, public interest is
positively harmed when interested parties are given the privilege of
interrogating a prosecuting agency about its actions vis-à-vis that party
through an RTI — proceeding when the prosecution before a Trial Court is
already extant.

Based on the
above, two members took the view: “Neither the provisions of the RTI Act, nor
the canons of justice, or equity commend disclosure of information as requested
by this appellant.”

Dissenting
decision:

IC Shailesh
Gandhi came to the conclusion that the information sought must be disclosed,
since there are no reasons in law to deny the information. IC writes thus:

“The
Commission’s decisions have been unanimous so far, and I am hesitant to break
this tradition. But I believe when there are different views on transparency,
it is worthwhile to voice them. I am inspired by Justice Mathew who had said in
the Supreme Court in State of UP v. Raj Narain (1975), ‘in a government of
responsibility like ours, where all the agents of the public must be
responsible for their conduct, there can be but few secrets. The people of this
country have a right to know every public act, everything that is done in a
public way, by their public functionaries. They are entitled to know the
particulars of every public transaction in all its bearing. The right to know,
which is derived from the concept of freedom of speech, though not absolute, is
a factor which should make one wary, when secrecy is claimed for transactions
which can, at any rate, have no re-percussion on public security. To cover with
veil of secrecy, the common routine business, is not in the interest of the
public. Such secrecy can seldom be legitimately desired. It is generally
desired for the purposes of parties and politics or personal self-interest or
bureaucratic routine. The responsibility of officials to explain and to justify
their acts is the chief safeguard against oppression and corruption.” I
sincerely believe that India could benefit immensely from RTI which is but a
search for the truth as it exists on the records of public authorities. Denial
of information must be an exception, since it is a denial of the fundamental
right of the sovereign citizen of India, and must rigorously meet the
requirements of the exemptions of S. 8(1) of the RTI Act. I cannot agree to
views which I feel do not reflect the law in letter and spirit.

He first dealt
with submissions of CBI that S. 8(1)(e) and S. 8(1)(h) and S.11 are applicable.

He held that for
S. 8(1)(e) to apply, there must be a fiduciary relationship and the holder of
information must hold the information in his fiduciary capacity. All
relationships usually have an element of trust, but all of them cannot be
classified as fiduciary. In these relationships, the lawyer and the doctor act
on behalf and in the interest of their client and patient. But in the present
case the Department would not be considering the report on behalf of CBI or in
the interest of any particular entity or individual. Therefore exemption
u/s.8(1)(e) claimed by the CBI is not tenable under the Right to Information
Act.

Mr. Shailesh
Gandhi then referred the provisions of S. 22.

“S. 22
provides:

The provisions
of this Act shall have effect not-withstanding anything inconsistent therewith
contained in the Official Secrets Act, 1923, and any other law for the time
being in force or in any instrument having effect by virtue of any law other
than this Act.”

He quotes
Justice Sanjeev Khanna of the High Court of Delhi in ‘Union of India v. CIC’:

“S. 22 of the
RTI Act gives supremacy to the said Act and stipulates that the provisions of
the RTI Act will override notwithstanding anything to the contrary contained in
the Official Secrets Act or any other enactment for the time being in force.
This nonobstante clause has to be given full effect to, in compliance with the
legislative intent.”

The two members
had taken the view that S. 8(1)(h) applies. Two reasons were given for it.

One: Disclosing
names of the officials involved in the report would impede the prosecution. Mr.
Gandhi argued?: “The officials may claim exemption u/s.8(1)(g), but this would
again be open to judicial scrutiny by the Commission and would not be
necessarily accepted. Even if this were accepted, the Commission u/s.10 could
direct severance of the names of the officers mentioned in the report.”

Two: According
to Mr. Gandhi, no reasons have been advanced showing how the prosecution would
be impeded by disclosing the information. When denying a right to the citizen,
it has to be established beyond doubt that prosecution or apprehension of an
offender would be impeded. This has not been done. If the Parliament wanted to
exempt all information which was the subject matter of a prosecution, it would
have said this. The Parliament has specifically exempted only the information
which would ‘impede’ the process of investigation or prosecution.

Further, he
writes:

“The argument
that the information can be made available to the appellant’s son in
accordance with the provisions of the Criminal Procedure Code is in itself
self-defeating. This is because it establishes that CBI and the prosecuting
agencies have no objection in the appellant’s son accessing the information per
se. Their objection is to the route adopted and to the fact that the Commission
may order the disclosure of information. The majority decision appears to subscribe
to this. With regard to the Right to Information Act, the Commission is the
final decision-making body. The Trial Court has jurisdiction over matters
coming before it, but not over appeals and complaints under the Right to
Information Act. The Commission cannot abdicate its re-sponsibility and
authority in deciding about disclosure of information under the RTI Act to any
Court. The existence of an alternative route to access information, does not in
itself provide an exemption to disclosure u/s.8(1) of the RTI Act. Unless the
information sought is proven to be exempt u/s.8(1) or 9 of the RTI Act, the
Commission cannot accept any other exemption external to either of these
provisions. The CBI has not advanced any spe-cific argument to show how the prosecution
would be impeded to claim exemption from disclosure u/s.8(1)(h).

Mr. Shailesh
Gandhi contradicts the interpretation of the majority decision on S. 2(j)
referred to in para 28 (supra). He states:

“The word used
in the provision is ‘or’ and not ‘and’. Thus information may be sought either
from the public authority holding the information or the public authority
having control over the information. The Parliament has deliberately drawn this
distinction as in some cases these two public authorities may be two entirely
different entities. Therefore, if a public authority holds the information, it
must provide the same to the RTI applicant in accordance with the provisions of
the RTI Act. It is not at all necessary for that public authority to control
that information as well. In the present case, the Trial Court may have control
over the record, but the CBI is the public authority holding the SP report.
Therefore, the SP report can be sought from the Commissioner of Customs &
Central Excise or from the Trial Court. Since the appellant has sought it from
the Commissionerate, the public authority holding the information must provide
the same.”

As to arguments
advanced for application of S. 11,

Mr. Shailesh
Gandhi writes:

“It is clearly
stated at S. 11(1) that ‘submission of third party shall be kept in view while
taking a decision about disclosure of information’. S. 11 does not give a third
party an unrestrained veto to refuse disclosing information. It only gives the
third party an opportunity to voice its objections to disclosing information.
The PIO will keep this in view and take a decision about disclosure of
information. If the PIO comes to the conclusion that the exemptions of S. 8(1)
apply, he may refuse to disclose the information.”

“S. 11 of the
RTI Act is a procedural provision which requires the PIO to approach a third
party if the information sought relates to such third party. S. 11 is not a
substantive provision and therefore is not an exemption in addition to those
provided in S. 8(1) and S. 9. Once the PIO receives the objections, raised by
the third party, he must keep these in view while deciding whether to disclose
the information or not. This decision has to be in consonance with the other
provisions of the RTI Act and therefore exemptions claimed by the third party
have to be justified by the PIO u/s.8(1) or S. 9. The provision of S. 11(4)
gives the right to the third party to appeal against the decision of the PIO.
This would not have been relevant if the mere denial by the third party of
disclosure of information were to be considered to be final.

Then disagreeing
with the contention raised in para 33 (supra), he writes?:

“I most
respectfully disagree with this contention since it appears to propound a
principle that an accused in a corruption case can be denied his fundamental
right. Right to Information is a fundamental right of the citizens codified by
the RTI Act, 2005. A fundamental right cannot be curtailed arbitrarily and
without the sanction of law. It does not matter if the person accessing the
information or the person in relation to whom information is sought is a
convict or an accused. He cannot be denied his fundamental right. The duty of
the Commission is to ensure that the RTI Act is implemented properly and to ensure
that it does not take into account extraneous considerations while deciding on
appeals and complaints before it.”

Finally, paras
51 and 52 of his decision:

51. To summarise:

(a) The information sought is not exempt
u/s.8(1)(e) or (h) for reasons explained above.

(b) The RTI Act clearly overrides all other
prior Acts in matters of disclosures of information as per S. 22.

(c) Refusal of information can only be based
on the RTI Act, when an application is made under this Act. The Commission is a
creation of the RTI Act and can only agree to denial of information which is
expressly exempted u/s.8(1) or u/s.9 of the RTI Act.

(d) If there are various routes by which a
citizen can access information, it is his prerogative to use one which he finds
convenient.

(e) S. 11 is not a provision which can be
used to justify exempting information from being disclosed, unless it is
covered by S. 8(1).

52. In view of the reasons stated above, I
find the arguments put forward for the denial of information to be untenable.
Hence I cannot agree with the majority decision, and it is my considered
opinion that the information sought by the appellant is not covered by the
exemptions of S. 8(1) of the RTI Act and hence should be disclosed.

Note?: Full
decision shall be posted on website of BCAS and PCGT for anyone interested in
reading these extremely well-reasoned two counter decisions.

[Mr. C.
Seetharamaiah v. Commissionerate of Customs & Central Excise (Third Party?:
Central Bureau of Investigation)?: Appeal No. CIC/ AT/A/2008/01238 dated
19-9-2008 — decision dated 7-6-2010]

PART B: THE
RTI ACT

Payment of
fee under the RTI Act, 2005:

S. 6(1), S. 7(1)
& S. 7(5) provide for fee payable for accessing information being
application fee and fee for information supplied in photocopies, print or in
any electronic format. Proviso to S. 7 states that the fee prescribed by the
rules shall be reasonable. DoPT of Persmin, Government of India vide office
Memorandum (No. 12/09/2009.IR) has issued some clarifications on this subject.
The same are summarised hereunder?:

The Rules or the Act do not give power to the
PIO to charge any fee other than prescribed in the Fee and Cost Rules.
Attention is drawn to the common order of the
CIC in one appeal and one complaint which reads as under:

“Thus, there is provision for
charging of fee only u/s.6(1) which is the application fee: S. 7(1) which is
the fee charged for photo-copying, etc. and S. 7(5) which is for getting
information in printed or electronic format. But there is no provision for any
further fee and if any further fee is being charged by the public authorities
in addition to what is already prescribed u/s. 6(1), u/s.7(1) and u/s.7(5) of
the Act, the same would be in contravention of the Right to Information Act.
The ‘further fee’ mentioned in S. 7(3) only refers to the procedure in availing
of the further fee already prescribed under 7(5) of the RTI Act, which is
‘further’ in terms of the basic fee of Rs.10. S. 7(3), therefore, provides for
procedure for realising the fees so prescribed.”

·
It is hereby clarified that where a Public
Information Officer takes a decision to provide information on payment of fee
in addition to the application fee, he should determine the quantum of such fee
in accordance with the fee prescribed under the Fee and Cost Rules and give the
details of such fee to the applicant together with the calculation made to
arrive at such fee. Since the Act or the Rules do not provide for charging of
fee towards postal expenses or cost involved in deployment of manpower for
supply of information, etc., he should not ask the applicant to pay fee on such
account.

Part 3 :
INFORMATION ON & AROUND

·
Appointments of Information Commissioners

The Government
will be appointing 22 commissioners this year. Of the 22 commissioners who are
retiring, six are with the Central Information Commission, including its chief
Wajahat Habibullah.

In August 2008,
DoPT recommended its Secretary S. N. Mishra, Annapura Dixit, Ashok K.
Mohapatra, R. B. Shreekumar, M. L. Sharma and Shailesh Gandhi for appointment
as information commissioners in the Central Information Commission.

Except Gandhi,
whose name was
proposed by several RTI
activists, names of the others were not recommended by anyone. But their
bio-data got included in the proposal for appointment of information
commissioners.

On the other
hand, three persons — Ravi Shankar Singh, Sudhanshu Ranjan and Dr. Krishna
Kabir Anthony — who applied and were also recommended by politicians did not
find a place in the agenda for the selection committee headed by the Prime
Minister. There were 12 others like them.

Arvind Kejriwal
who got the above info under RTI query says:

“it appears the
DoPT has become the de facto selection committee and the selection committee
provided under the law has been reduced to an endorsement committee.”

·
BMC employees not being transferred:

Months after
Bandra residents managed a landmark victory forcing the transfer of at least
eight engineers who had been tossed around in the H-West ward for 20 years, an
RTI query has revealed that a similar situation exists in Andheri as well. As
many as 50 employees, including peons, engineers and clerical staff, haven’t
been transferred, some since the 80s.

The RTI query
filed by activist Aziz Amreliwala revealed that despite the BMC Rules that make
rotation of officials mandatory every three years, at the K/East ward, 11
engineers, including sub, junior and assistant engineers, have enjoyed the same
post for several years. In fact, some of them have even been promoted. Experts
blame a nexus between officials and politicians that make the transfers of
employees impossible.

·
Maharashtra Chief IC

Dr. Suresh
Joshi, Chief Information Commissioner retires on 12-10-2010 (exactly on the 5th
anniversary of RTI).

Political
activist Chandrashekar Prabhu, additional chief secretaries M. Rameshkumar and
Bhupati Prasad Pandey, retired bureaucrats Leena Mehandale, S. S. Hussain and
state human rights commission member Subhash Lala are prominent among the
150-and-odd persons competing for the post of the State CIC.

Dr. Joshi has
gone on leave and entrusted his task to the junior-most IC, Ramanand Tiwari.
Other Information Commissioners who are senior to Mr. Tiwari have taken
objection to the decision of Dr. Joshi.

Ever since the
appointment of retired IAS officers as info commissioners, a cold war is on
between IAS and non-IAS commissioners. When the process of appointment of
Information Commissioners was in progress, activist Anna Hazare had personally
called on the then CM and President of India, saying that the Government should
not appoint retired babus for such sensitive posts. Currently out of the 7
commissioners, 3 are retired IAS and 4 are non-IAS officers.

Meanwhile, over
42 serving and retired IAS officials and 89 individuals have applied for the
post of info commissioners. The Nashik Information Commissioner’s post is lying
vacant. Aurangabad IC died in July 2010.

·
Panchayati Raj Ministry:

The Panchayati
Raj Ministry, responsible for decentralisation and local governance in states,
but more importantly, empowering the rural poor, has been spending crores every
year as rent on space acquired at a 5-star hotel in south Delhi being 5,500
sq.ft. space on the sixth floor of Samrat Hotel in Chanakyapuri.

This information
came to light in reply to an RTI application filed by a Delhi-based activist.
Rent per month was `190 per sq.ft., for a period of two years commencing from
September 1, 2006, to be extended further with an increase of 8% after expiry
of the tenure. After the period lapsed on August 30, 2008, the present rate of
rent became `210.60 per sq.ft., from September 1, 2008. The total adds up to
more than `5 crore spent as rent so far.

·
Corruption Eradication Committees:

Maharashtra
State Government’s commitment to combating corruption is facing its real test
in Thane, where a citizen activist has put a spotlight on the District
Collectorate for failing to comply with rules concerning the setting up of
Corruption Eradication Committees (CEC) at the taluka and district level.

The watch-dog
committees, comprising 10 citizens, selected after police verification, besides
a team of administrative and police officials, have been armed with the authority
to inquire into complaints of corruption. The anti-graft panels, initiated in
1996 during the Shiv Sena-BJP regime, raised hopes of finally getting justice
among aggrieved citizens as non-official members would ensure redressal of
public issues during monthly meetings.

The Thane
Collectorate, however, seems to be an exception to the rule aimed at equipping
people with the authority to question the corrupt. Of the 15 talukas, none has
a fully constituted CEC. In fact, the district CEC has just three non-official
representatives as against the mandatory ten.

·
Cost of getting the information:

Citizens and RTI
activists have a reason to cheer. Now, they can save thousands of rupees which
they pay fee to get ‘readily available’ information under the RTI Act,
According to the Information Commission, they will get the information for Rs 2
per page, as stipulated in the Act.

Several RTI
applicants had complained that they were made to pay through their nose,
particularly while seeking information from BMC’s property-related departments,
such as assessment. Also officers often did not sign or attest papers while
giving information. When they were asked to sign on the documents, they used to
ask applicants to pay as per the BMC rate card which existed before the RTI Act
came into existence. The practice continued despite the fact that the RTI Act
has a superseding effect on all prior rules.

For example,
certified copies were charged at `230 per property in the assessment
department. If the applicant had to ask property details or building details
for more than one property, they would pay in thousands. Apart from this, the
inspection of voluminous information that is free for the first hour and `5 for
every 15 minutes was being charged `150 per hour.

The order from
Information Commission comes after a sustained battle of over one and a half
year by NGO, Mahiti Adhikar Manch, and some active citizens. The State Chief
Information Commissioner, Dr. Suresh Joshi, who heard the matter in March 2009,
passed order dated July 9, 2010, after a series of meetings with additional
municipal commissioners.

BCAJ Admin

Right to Information

Part A : Decisions of CIC

l S. 2(f) and S. 7 :

Mr. Rakesh Agarwal sought the following information under RTI application to Mr. K. S. Rawat, PIO, Tis Hazari Courts, Delhi :

1. Whether intimations are sent by each traffic court of Delhi presided over by Spl. M.M.S. as required by S. 210 of the Motor Vehicles Act 1988 ?

2. If not, reasons for the same.

3. If yes, copies of all such intimations that pertain to convictions on 9 and 10 January 2008 across all Traffic Courts of Delhi.

The PIO held that information sought for was not held by or under the control of any public authority and therefore did not fall u/s.2(f) of the RTI Act, which defines ‘information’.

Further, the PIO stated that the appellant was representing his newspaper/magazine called ‘Nyay Bhumi’ and had filed 3 RTI applications in 15 days and the appellant was working for promotion of his business rather than serving social interest. Hence, it was a blatant misuse of the RTI Act.

The First Appellate Authority (FAA) directed the PIO to collect the information from the Courts dealing with traffic cases and send it to the appellant within 20 days. The order was passed by FAA beyond 45 days and no hearing was given.

The following two were grounds of appeal before CIC :

The PIO demanded payment for providing information thereby violating S. 7(6)

FAA did not afford a hearing to the appellant and received the FAA’s order on 25-2-2009 thereby exceeding the time limit set in the Act.

It may be noted that the PIO had first held that information sought was not covered u/s.2(f) and only when FAA directed to furnish information, he agreed to provide it but only on payment of prescribed fee (i.e., Rs.2 per page). While the appellant’s contention was that having not validly denied supply of information, the same has to be submitted free as provided u/s.7(6) which reads as under :

S. 7(6) : Notwithstanding anything contained in Ss.(5), the person making request for the information shall be provided the information free of charge where a public authority fails to comply with the time limits specified in Ss.(1).

CIC in the decision stated :

“It is a basic tenet of statutory interpretation that words of a statute should be interpreted keeping in mind the context in which they appear. Information is to be provided free of cost if S. 7(1) is not complied with. Rejection of a request for any of the reasons specified in S. 8 or S. 9 has to be valid rejection in law. If a ground for exemption from disclosure is wrongly relied upon, then it does not amount to ‘rejection of a request’ as started in S. 7(1). It is absurd to contend that the appellant must be made to pay the additional fees when the PIO wrongly denies information. The Commission finds the PIO’s deliberate misconstruction of the law unacceptable. This is an attempt to obstruct the implementation of the RTI Act and to delay the provision of information to the appellant without any reasonable cause.

CIC also observed that the PIO on several occasions, all of which are on record, has made unwarranted and irrelevant observations which give the impression that the PIO is malafidely denying information to the appellant. The Commission strongly advised the PIO to refrain from making such comments in future.

Based on the above, the Commission directed the PIO to provide the information to the appellant free of cost. He was also asked to show cause as to why penalty should not be imposed and disciplinary action be not recommended against him u/s.20(1) of the RTI Act.

[Mr. Rakesh Agarwal v. PIO, Tis Hazari Courts, Delhi, CIC/SG/A/2009/000675/3390, dated 22nd May 2009]

Ration card :

The appellant had applied for a ration card in 2006 and in spite of repeatedly being shunted to various places did not get any ration card. The PIO stated that the Government has subsequently declared as to how many BPL cards will be issued and time was set for applications to be made for BPL cards. The Delhi Government accepted applications for BPL cards in February-March 2009 and decided on a maximum number of cards which are to be given. He stated that the applications were received and sent to a Vigilance Committee headed by MLA of the area. He admited that these cards are supposed to be given in 45 days, but the time at the Vigilance Committee headed by MLAs takes indefinite time.

CIC Shailesh Gandhi in the decision stated :

The appellant has not been given any appropriate reply indicating what is happening to her ration card application. The approximate loss to her per month of free foodgrain and kerosene is about Rs.500 per month. The appellant should have got proper answer to her RTI application by 6-4-2009. The loss of free foodgrain due to her is already for three months by which she has suffered loss of Rs.1500. The Commission also feels that the loss of time and trauma which she suffered on account of not getting her due entitlement and pursuing this application and appeal should be compensated with another Rs.1000. Hence the Commission awarded a total compensation of Rs.2500 to the appellant for loss of entitlement and to compensate for the effort and the trauma suffered in pursuing this matter.

The PIO was directed to give the information to the appellant before 10th July 2009 about the status of her application giving names and designations of the officers who have dealt with the BPL card application and where the application is presently.

[Smt. Nagina Devi, Delhi v. PIO, Food Supplies & Consumer Affairs, GNCT of Delhi, CIC/SG/A/2009/001213+1214/3969, dated 2nd July 2009]

Part B : The RTI Act

Annual Report Maharashtra State Information Commission :

Please refer to RtoI of June, 2009. Under other news, I had reported some statistics as covered in the Annual Report of Maharashtra State Information Commission. Now the report in English is published and Dr. Suresh Joshi, CSIC has kindly sent me a copy.

It is Third Annual Report of the year 2008. Some interesting extracts from it:

1,23,000 applications in 2006, 3)6,000 in 2007 and 4,16,090 in 2008 have been received respectively. In bigger States of our country less than one lakh applications come in one year. In the international arena England receives about 60,000, Mexico about 94,000. Similarly the Central Government receives about two and a half lakh applications. Thus it is seen that the people of Maharashtra have given tremendous response to this Act.

Understanding the important issues touching the lives of the people by using this Act agitating them on proper platform, fighting injustices, checking corruption, increasing the commitment of government employees to work and increasing the overall transparency in government functioning – many such like issues have been addressed due to the use of this Act.

Many young people have thrown themselves in this movement of the Right to Information. Similarly, many people above 60 years have also participated in spreading awareness about right to information. It is heartening to see that associations of officers, employees of the Government of Maharashtra have declared their support for this Act and have appealed to their members to give maximum information to the people through this Act. All these factors have proved useful in obtaining people’s support for this Act.

Maharashtra is the only State in the country where Benches of the Information Commission have been set up at the Division, level. Greater Mumbai, Konkan, Pune, Aurangabad, Nagpur already have Benches. Towards the end of 2008 Amravati Bench was constituted and on 24 December 2008 the Information Commissioner was appointed there. Only Nashik Bench now remains to be established and I am hopeful that it would be done soon.

Due to the formation of Divisional Benches the Commission’s work has reached nearer to the people. Commissioners have not only heard appeals at the divisional headquarters, but have attempted to hear them at the District level. Therefore people realised that ‘the Commission has come to our doors’ and this was perhaps one of the reasons for increasing number of RTI applications.

In 2007 the Commission decided 3611 appeals and complaints. This number is 15026 for the year 2008. The Commission has also started arranging hearings through video conferencing.

Annual Report 2006-07 of Central Information Commission :

(continuing from July 2009)

v) Collection of Charges by Public Authority (Vide: S. 25(3)(e) of RTI Act) : All the Minis-tries/Departments/ Apex-level Offices taken together collected Rs.30,71,167 in the year 2006-07. In the year 2005-06, the amount collected was Rs.5,08,490. There is six times increase in the amount collected in year 2006-07 over the previous year. Top 10 Ministries collected a total of Rs.22, 82,984 (74.33% of the total) in the year 2006-07.

vi) Disposal of appeals (Vide: S. 25(3)(c) of RTI Act) : All the Ministries/Departments/ Apex-level Offices, on an average, disposed 75% of the appeals received during the year 2006-07. Out of 57 Ministries/Departments/ Apex-level Offices, 22 Ministries have disposed 100% appeals during the year and 65 Public Authorities have received more than 50 appeals.

vii) Implementation of the Act (Vide: S. 25(3)(f) of RTI Act) : Efforts taken by Public Authorities to administer and implement the spirit and intention of RTI Act include launching of website to disseminate information with respect to Act and developing Public Grievance Redressal and Monitoring System (PGRMS) by some Ministries. Suggestions were received from Public Authorities about increasing fee for seeking information, for filing first and second appeals, increase in time to respond for older records, and taking up more capacity building programmes.

viii) Recommendations for Reforms, etc. (Vide: S. 25(3)(g) of RTI Act) : The Central Information Commission has made valuable recommendations for reforms and with respect to specific Ministries with a view to make RTI Act more effective. The recommendations include (a) streamlining the procedure of dealing with RTI applications, (b) strengthening of the staff for efficient disposal of RTI applications, (c) implementation of homogeneous fee structure, (d) full conformance with spirit of RTI Act, (e) respect for dignity of citizens. In addition CIC made some observations with similar objectives. These observations are with respect to (a) promotion of employees of Public Authorities, invasion of the privacy, (c) interpretations of rules and Acts, (d) language issues, (e) communication issues, (f) adherence to record retention policies and process of weeding out information, (g) computerisation, (h) training of the staff, and status of governing body and strengthening of staff grievances redressal system.

Part C : Other News

• Unclaimed money in the banks:

Coming down heavily on banks that keep funds in ‘suspense accounts’, the Central Information Commission has asked RBI to disclose details regarding ICICI Bank. CIC also directed RBI to provide information in 10 days if other banks, including govt-run ones, were following this practice. In his order, Information Commissioner Satyananda Mishra asked RBI to give a “comprehensive reply stating categorically if the RBI had ever issued any instruction on the subject and if according to them such practice was being followed in other banks including public sector banks”. The decision could have far-reaching impact in bringing information on unclaimed money into the public demain.

• File notings :

[Further to file notings as appeared in July 2009 issue]

In a Circular issued in the third week of June, DoPT has stated, “It is hereby clarified that file notings can be disclosed except those containing information exempt from disclosure u/s.8 of the Act.” DoPT’s move comes after the CIC had issued notice to two Department officers seeking reason why they should not be prosecuted for disobeying its orders. The Commission had asked the Department to correct its website which said notings couldn’t be disclosed under the Act. DoPT Minister Prithviraj Chavan has said that notings were not part of the proposed amendments to the RTI Act.

• BSE and SEBI :

Yogesh Mehta, a former sharebroker, and whom BCAS foundation RTI clinic on ongoing basis provides assistance has again received an order from CIC in his favour. CIC in a landmark order has directed the SEBI to procure information from the BSE’s Investor Protection Fund (IPF) and provide it to Mr. Mehta whose shares worth lakhs of rupees are lying impounded with IPF since last 13 years.

While BSE did not have any objection in providing information to SEBI, it was of the view that SEBI cannot provide the same to the citizen under the RTI Act. It is learnt that now a big battle awaits between BSE, SEBI and the applicant.

• Mediclaim Policy refund:

The RTI Act has come to the help of thousands of Mediclaim policy holders who have been struggling to get refund for the excess premium they have paid. The Central information Commission (CIC) has directed New India Assurance Company Ltd. to make public the details of the total number of policy holders who are still to get a refund for the excess premium charged. The CIC has asked the company to provide the information on the company’s website and send a copy of information to the Insurance Regulatory Development Authority.

Is vacation an excuse to delay on RTI application?

CIC has ruled that there is no law that allows Courts to give up their obligation under the Right to Information Act even if many staff members are on vacation. CIC’s disapproval came on HC’s failure to furnish an RTI response to an applicant on the ground that staff is lean owing to vacation.

“The Commission finds it difficult to accept that any public authority can claim vacation from RTI for one month which is not provided for in law,” Information Commissioner Shailesh Gandhi noted in a recent decision.

BCAJ Admin

ORDERS OF CIC

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Part A : ORDER OF CIC

In the last (August 2010) issue, I reported on one full-bench
(split) decision of CIC. In this issue, I report two full-bench decisions
pronounced, one in June and the other in July.

An interesting matter came for decision in this case. The
appellants, Sri Manohar Parrikar of Goa and two other individuals, had made RTI
applications seeking all documents including correspondence, notings,
explanations between the office of AG (Audit) and certain bodies like Goa
Infrastructure Development Corporation, Government of Goa, etc.

The PIO furnished certain documents and denied some other
information sought, including the intermediary documents. FAA held that “the
intermediary documents are merely working papers and may not come within realm
of ‘information’ under the RTI Act and the same be furnished. The PIO did not
comply with the same.

The appellants then filed appeals before CIC. Before deciding
the matter, CIC sought the advice of the Secretary General of Lok Sabha and the
comptroller and the Auditor General of India. The Commission received the same.

In the view expressed by the C&AG, it held that “audit notes,
etc. are work papers and do not contain the final view of the Accountant
General. The information therein is based on the document obtained from the
auditee only. Such information would come within the scope of S. 8(1)(c)* of the
Act and disclosing such information may cause a breach of privilege of the
Parliament. This would be against the oath taken by the C&AG to uphold the
Constitution and the laws of the land.”

The C&AG also pointed out that based upon the Audit Report,
the CBI had launched a criminal proceeding against the appellant, Shri Manohar
Parrikar in Case No. RCO0015A/2007. It was, therefore, mentioned that any
disclosure at this stage would impede the process of ongoing
investigation/prosecution and thus bring the matter within the scope of S.
8(1)(h)** of the RTI Act.

The C&AG note also cited a passage from the U.K. Freedom of
Information Act, 2000, in which audit-related matters were exempt from
disclosure. It argued that the logic of the UK Act would also apply in the
Indian context as the United Kingdom and India were both parliamentary systems.

Appellant argued before the CIC that the C&AG’s
constitutional obligation to carry out specific mandate could not be treated as
a bar on the disclosure of the information, which undoubtedly is held in the
control either of itself or the office subordinate to it. Learned counsel for
appellant cited an order of the Delhi High Court, in which it was held that
authorities entrusted with constitutional obligations also carry a moral
responsibility of transparent conduct. He argued that the information given to
the Accountant General by the departments or the authorities under the
Government — Central or State — was neither fiduciary, nor was it confidential.
To call any information as immature, preliminary, intellectual input, unfinished
and so on, could not be a reason to withhold such information from disclosure
when S. 2(f) of the RTI Act defines all such items of information — and much
more as ‘information’ within the meaning of the Act. The stage of evolving
information was not a reason to bar its disclosure. The appellants’ counsel
further pointed out that this particular Accountant General’s Report was already
placed before the Legislative Assembly of Goa State and was thereby an open
document.

The C&AG’s representative also submitted that all reports
placed before the Parliament were in fact the property of the Parliament. As
such, all material connected with such a report should also be treated as the
property of the Parliament, which could be disclosed only if the Parliament so
authorised it. He pointed out that all Accountant General and C&AG Reports
placed before the Parliament are examined by the Public Accounts Committee,
whose deliberations are not open to public and thereby are confidential. All
material relating to the C&AG or the AG Reports are, therefore, inferentially
before the Public Accounts Committee and thereby become confidential as the
deliberations before the Committee are held to be confidential.

Decision Notice :

The Three-member bench held that provisions of S. 8(1)(c) of
the RTI Act are not attracted. The decision notes :

“As has been pointed out by the Secretary General of Lok
Sabha, the Constitution does not mention items such as draft reports, half
reports, half margins or draft audit notes and so on. If these are
information within the RTI Act, their disclosure liability has to be
determined in terms of the provisions of the Act. On the subject of whether
disclosure of this variety of information would constitute premature
revelation of matters before the Parliament or the State Legislature, the
Secretary General, Lok Sabha citing Kaul & Shakdher in ‘Practice and
Procedure of Parliament’, stated that premature publicity in the press to
notices of questions, adjournment motions, resolutions, answer to questions
and other similar matters connected with the business of the House did not
comprise breach of privilege, although it may be ‘improper’. It was no-doubt
breach of privilege to publish any part of the proceeding or evidence given
before a Parliamentary Committee before such proceedings or evidence or
documents had been reported before the House, unless the Committee itself
decides that either all or part of its proceedings may be publicised.
According to the Secretary General “it is doubtful whether the report of
C&AG qualifies to be treated as the report of a Parliamentary Committee or
evidence tendered before a Parliamentary Committee. Half margins, draft
audit notes, etc., as already stated, do not have any relevance insofar as
parliamentary papers are concerned.”

The Commission also went through clauses 1.4(XII) and
(XIV) of the parliamentary procedure. It then held :

“It is then obvious from a reading of the Secretary General’s note to the Commission as well as the extracts of the parliamentary procedure, that while all evidences and depositions before the Parliamentary Committees are no doubt held secret as well as proceedings before it, it cannot be stretched to mean that every single item of information, held anywhere, that may, now or in future, become part of the proceeding before the Parliamentary Committee, or may be required to be produced as evidence before it, should also come under the exemption from disclosure. While all evidence or material, which is part of a proceeding before a Committee of the Parliament, has to remain secret until the Committee wills otherwise, every other material, which does not answer that description, is beyond the bar. In other words, while the actual material in a proceeding before a Parliamentary Committee is prohibited from disclosure, such prohibition would not apply to such material, which is not yet part of an ongoing proceeding. The audit notes, marginal notes, etc. come decidedly in the latter category.”

The Commission was also not persuaded by the C&AG’s argument that these items of information were at a very preliminary stage and should not be allowed to be disclosed for that reason. According to the C&AG’s own averments, these are items of information within the meaning of S. 2(f) of the RTI Act. And if it were so, the only reason why it should be prohibited from disclosure, was that it attracted one of the exemption Sections of the RTI Act 2005. That is not the case in the present matter. Therefore, it held that these items of documents and records, being information in themselves, merit disclosure.

Based on above, the Commission directed the CPIO to disclose all information requested by the three applicants.

[(1) Shri Manohar Parrikar, (2) Shri Jayanta Kumar Routary, (3) Shri Gurbax Singh v. (1) Accountant General, Goa, (2) Accountant General (Civil Audit), Orissa, (3) Accountant General (Audit), Punjab : Appeal No. CIC/AT/A/2007/00274, CIC/AT/ A/2008/00726 and CIC/AT/A/2009/000732, decided on 10-6-2010]

S. 8(1)(j), S. 2(f), S. 2(j) and S. 2(n):

The three-member CIC decision in the application by Mrs. Bindu Khanna has significant implication. It is my view that media has wrongly interpreted this decision.

The appellant Ms. Bindu Khanna, a teacher in a private school, namely, Pinnacle School, wanted certain information relating to her employment, mainly her service records, leave and other statutory allowances, working hours, medical facilities, pension and gratuity benefits, etc. She made various oral as well as written requests to the school. When she did not get the said information, she approached the Directorate of Education by filing an RTI application dated 11-2-2008.

When in response to her RTI application, she did not get the information sought, she had made an appeal to the Commission, which directed the Directorate to secure the information from the school and provide to the applicant.

Pinnacle School which is third party in these proceedings approached the Delhi High Court by filing writ petition No. 6956/2008 and contended before the Court that the RTI Act was not applicable to the school, inter alia, for the following reasons :

i) Pinnacle school is a private school;

ii) The Delhi School Education Act and Rules framed thereunder do not provide for disclosure of information.

The School also contended before the H.C. that the Commission passed the impugned order without hearing them and without complying with the principle of natural justice. The High Court by order dated 15th September, 2009 set aside the impugned order dated 15th September, 2008 passed by the Commission on account of failure to comply with the provisions of S. 19(4) of the RTI Act and remanded the matter back to the Commission for fresh adjudication in accordance with law.

At the time of hearing before the full bench, the petitioner submitted that the Delhi School Education Act and Rules framed thereunder are a complete code governing all aspects of functioning of aided and unaided recognised schools. A combined reading of S. 2(f) of the RTI Act and the Delhi School Education Rules

[in particular Rules 50(xviii) and (xix)] shall conclusively establish that the respondent Directorate as the governing authority of the school, has the requisite powers vested in it to access the information sought by the appellant. The petitioner further submitted that the third party by denying the information u/s.8(1)(j) of the RTI Act has already conceded the applicability of the RTI Act and had not made any representation to the effect that the information sought could not be given as the provisions of the RTI Act were not applicable to them.

The third party submitted that the RTI Act is not applicable to the private schools and it is the Directorate of Education, which had to be approached in this connection. They further contended that the Delhi School Education Act and Rules framed thereunder do not provide for disclosure of information. This stand of the third party was in contradiction of the stand already taken before the PIO and the First Appellate Authority that the information sought by the appellant was exempted u/s.8(1)(j) of the RTI Act and cannot be disclosed.

The Commission came to the conclusion that the third party had conceded in all earlier proceedings that the RTI Act applies to it and now cannot contend that the RTI Act does not apply to it. Hence, that issue was not dealt with at all.

Hence the issue for determination was:

“Whether the third party, a private school performing public function, can refuse to furnish the information u/s.8(1)(j) of the Act, particularly when the FAA of the respondent has ordered to disclosure of information.”

The Commission analysed three items of definitions from S. 2, namely, ‘information’ (2f), ‘right to information’ (2j) and ‘third party’ (2n). The Commission also looked into The Delhi Education Act and the Rules, especially 2 clauses of Rule 50, reproduced hereunder :

“Rule 50 : Conditions for recognition — No private school shall be recognised, or continue to be recognised, by the appropriate authority unless the school fulfils the following conditions, namely :

xviii) the school furnishes such reports and information as may be required by the Director from time to time and complies with such instructions of the appropriate authority or the Director as may be issued to secure the continued fulfilment of the condition of recognition or the removal of deficiencies in the working of the school;

xix) all records of the school are open to inspection by any officer authorised by the Director or the appropriate authority at any time, and the school furnishes such information as may be necessary to enable the Central Government or the Administrator to discharge its or his obligations to the Parliament or to the Metropolitan Council of Delhi, as the case may be.”

Based on the above, the Commission held:

“The order passed by the First Appellate Authority directing the third party to provide complete information to the appellant and the decision of the Commission affirming the orders of the First Appellate Authority are perfectly in compliance with the provisions of the Act. The third party is hence obliged to comply with the said orders. The Commission, therefore, directs the respondent to seek compliance of the aforementioned order from the third party-Pinnacle School to provide information as sought by the appellant.”

The Commission also in the penultimate para stated as under:

“The issues relating to management and regulation of schools responsible for promotion of education are so important for development that it cannot be left at the whims and caprices of private bodies, whether funded or not by the Government.”

It is my view that the decision does not rule that the RTI Act ‘per se’ applies to the private unfunded schools. If the school concedes that the Act applies, then it cannot escape in furnishing information if under the combined definitions u/s. 2(f) and u/s.2(j) read with the rules of the relevant Education Act, the information is covered, then it is accessible and cannot be denied.

[Ms. Bindu Khanna v. Directorate of Education, Government of NCT of Delhi, (third party, Pinnacle School, New Delhi) : Decision No. 5607/IC(A)/2010 of 14-7-2010]

PART B : THE RTI ACT

Extracts from the Article of Antara Dev Sen, editor of the Little Magazine in the AGE of 24-7-2010.

Thinking allowed:

Earlier this week, Amit Jethwa was shot dead in front of the Gujarat High Court. He was in his thirties, a caring, law-abiding citizen, committed to the environment, humanity and animal life. And like most dedicated souls, he believed that he could stem the rot in the system and make a difference by diligently using democratic tools of empowerment.

He relied heavily on the Right to Information Act to plug the holes in the system. Till the holes got him.

Amit Jethwa was fighting against illegal mining in the Gir forests, which hosts the world’s last Asiatic lions. But he was up against the mining mafia, the Forest Department and politicians involved in the racket. Not an easy fight for a lone ranger. Besides, he had made enemies by campaigning against corruption.

But he was losing faith in civil society. Barely a week before he was gunned down he had told a reporter about his disenchantment. “I know how risky it is for me and my family to wage war against mining mafia”, he lamented. “Without the support of people nothing is possible.”

Which is precisely where the power of the RTI lies. In the hands of the masses, it is a potent tool to chisel democracy with. But in the hands of a lone passionate soul, it may be a dangerous weapon ready to explode in your face.

Information is power only when you are allowed to use it. It works wonders in a free society, where people have justiciable democratic rights, where governance has not failed as miserably as in our country. The right to information can be a human right only where there has been a certain level of development, where certain democratic freedoms are protected. If the state cannot protect your right to life, it’s best not to exercise your right to information too much.

Let’s look at some of the cases this year. In January 2010, Satish Shetty, 39, was hacked to death in Maharashtra. The activist had been battling land scams and government corruption, had received death threats and asked for police protection — which he didn’t get — and was killed while taking his morning walk.

In February, also in Maharashtra, RTI activist Arun Sawant was shot dead near the Badlapur Municipal Office in Thane for fighting administrative corruption.

Meanwhile in Bihar, RTI activist Shashidhar Mishra was gunned down in front of his home in Begusarai. A tireless crusader against corruption in welfare schemes and the local government, he was called ‘Khabri Lal’ for his dedication to information.

Meanwhile in Gujarat, Vishram Laxman Dodiya, who had filed an RTI petition regarding illegal electricity connections by Torrent Power, was murdered.

In April, RTI activist Vitthal Gite, 39, was killed in Maharashtra for exposing village education scams.

And in Andhra Pradesh, Sola Ranga Rao, 30, was murdered in front of his home for exposing corruption in the funding of the village drainage system.

In May, Dattatray Patil, 47, was murdered in Kolhapur, Maharashtra. A close associate of activist and RTI guru Anna Hazare. His fight against corruption had got some of the area’s top policemen removed and action initiated against local municipal corporators.

Besides murder, there are failed murder attempts, violent threats and fake police cases. Take Maharashtra:

In March, environmentalists Sumaira Abdulali and Naseer Jalal were ruthlessly attacked by a politically backed sand mafia in Raigad, and survived only because journalists accompanying them used their influence and mobile phones. None of the accused was arrested. In April, Abhay Patil, advocate and RTI activist, had a mob clamouring for blood at his door. Apparently, they wanted him to withdraw all complaints of corruption against MLA Dilip Wagh. When his wife, a police constable, called the cops for help, they asked her to come to the police station and lodge a complaint. Later she faced fake charges and was suspended, allegedly at the behest of Home Minister R. R. Patil. Then in July, Ashok Kumar Shinde was attacked for his RTI and Public Interest Litigation (PIL) against a corruption racket in the Public Works Department linked to the Bombay High Court.

Worse than physical assault is abusing the law to attack activists. Take the case of E. Rati Rao, senior scientist, activist and journalist, in Karnataka. In March she was charged with sedition and attempting to cause mutiny or communal discord for protesting against ‘encounters’ and atrocities on dalits, tribals, Muslims and other minorities. Meanwhile, in distant Orissa, another activist-journalist, Dandapani Mohapatra, was targeted by the police, his home raided and his books and magazines confiscated without a warrant. He was labelled as a suspected Maoist.

An activist fighting for our rights cannot win without our muscle. Once an RTI activist is killed, civil society must force the police to investigate not just the murder, but all that he was unearthing. Only then will we be able to stop this murderous silencing of the activists.

By not protecting the RTI activists, by allowing cases of harassment they file to be closed without punishing the perpetrators, the state is failing to uphold the spirit of the RTI Act. And weakening the spirit of democracy.

Part C : InformatIon on & around

Info on funds of political parties:

An analysis of the Income-tax Returns of political parties accessed by the ADR under the RTI Act has revealed that the BSP had a maximum growth rate of 59% in total asset from 2002-03 to 2009-10, followed by the NCP (51%) and SP (44%).

It appears that all political parties are in the pink of financial health :

Income

Aggregate income :

for 2009-10

2002-03 to 2009-10

Congress

497

1518

BJP

220

—

BSP 182

—

CPI

RJD 4

263

NCP 40

109

CPM 63

339

Emergency period in India’s history:

An RTI query was made to get certain documents pertaining to emergency period 1975-77. Request was for correspondence between the then president Fakhruddin Ali Ahmed and the Government. Both the Ministry of Home Affairs and National Archives of India replied that they have no such records.

15 questions listed in the RTI application pertain to the competent authority’s duly attested copy of all relevant records or documents, including the noting portion, on causes leading to the declaration of emergency and its nature, on the proceedings, recommendation and resolution adopted by the Union cabinet to declare the state of emergency and the names of those who attended the cabinet meeting, on how the recommendation was conveyed to the President and by whom, orders, directions, guidelines, wireless, telex and telegraphic messages issued by the Government to impose the state of emergency.

The presumption is that they (the officers) have either destroyed them or they don’t want to give them.

The complaint u/s 18 of the RTI Act is made to Chief CIC, but so far he has not responded to the same.

Assets disclosure by the Ministers of the Central Government:

All efforts under the RTI Act to get details of assets of the Ministers in the Central Government so far have brought no results.

When PMO was asked to furnish such information, it referred the matter to the Lok Sabha Secretariat (LSS) to get its nod to disclose the Ministers’ assets.

In reply LSS stated that there is no provision of such permission under the RTI Act and that the PMO itself has to take a call on such sensitive matter. Now PMO has to take a decision whether to disclose or deny.

Brihanmumbai Municipal Corporation (BMC):

If you wish to lodge a complaint with BMC, you no longer have to search for the name of the officer concerned. After an RTI query, the BMC has now decided to create 3,000 e-mail addresses based on officers’ designations instead of their names.

After pursuing the matter for a year, RTI activist Vihar Durve finally succeeded in getting general e-mail addresses created for the BMC officials.

“These days people are more comfortable writing e-mails than sending letters or going and meeting the officials personally. Though the BMC has a provision for mentioning e-mail addresses, it had not posted any e-mail address on website” said Durve.

The BMC has now created and posted e-mail addresses of top officials like the Commissioner and Additional Municipal Commissioners on its website. For the rest of the officers, the same are in the process of being created and posted on the website.

An interesting write-up in MIDDAY(30 July, 2010) by Hemal Ashar:

Once upon a time in Mumbai

Now that the movie ‘Once Upon a Time in Mumbai,’ about the city’s underworld has been released amidst much controversy, here is what actually happened Once Upon a Time in Mumbai.

We could go to the movies for Rs.20 a ticket and spend Rs.10 on samosas and Rs.10 on a popcorn packet while touts would murmur outside in a sinister, hush-hush manner, “70 rupees mein black.” Beggars would actually be happy with the Re.1 you gave them and not look like you are entitled to give them a blue-chip share instead.

Getting your children into school did not mean intense stress levels, high BP and cardiac conditions like blocked arteries resulting in an angioplasty as admission day neared.

A flat in the city’s toniest South Mumbai area would go for Rs.3 lakh and South Mumbai’s swish club like Willingdon offered the much-coveted life memberships at Rs.15,000, that too, payable in instalments. Page 3 was just another page in a book, newspaper or magazine and not a description of a person.

People thought that RTI always stood for Ratan Tata Institute on Hughes Road where you went to buy baby clothes and Parsi-style embroidered nightwear and not Right to Information to dig out dope on corrupt deals.

Your English teacher would scoff at this junk you are reading saying, “think of all the trees being chopped down to print the rubbish this columnist has written and here you are wasting time reading it” and you would hang your head in shame instead of laughing like you are doing now.

Court’s view on ‘information’ under the RTI Act:

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 Commission’s direction on the declaration of assets by judges, the SC, in its petition before the Delhi HC earlier this year, had claimed the RTI’s definition “shows that the information which is required to be given must be information in the public domain.” Accordingly it argued that the application regarding declarations of assets by judges under a 1997 resolution of SC 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 statute 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.

(Extracts from The Times of India of 14th August)

BCAJ Admin

Right to Information

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Part A : CIC’s decisions

Mr. D. E. Robinson of Goa requested for certain financial information from the
Commissioner of Income Tax, Panjim in respect of all the contesting candidates
for election in Goa in the year 2006.

The information sought was :

Whether in all the cases where the contesting candidates have
declared immovable property viz. ‘urban land’ as defined in S. 2(ea),
explanation 1(b) of the Wealth Tax Act, (including agricultural land situated
within the 8 km limit of notified towns), the values declared were verified in
the context of tax liability under the Wealth Tax Act.

Further he had asked in how many cases such lands were
declared in the tax records or not declared and in how many cases action was
taken to bring the said properties to tax under the Wealth Tax Act, etc.

The information was declined citing exemption u/s.8(1)(j) of
the RTI Act. Reply also stated that the matter was under verification and the
results could be disclosed only after the process was completed.

The Appellate Authority interestingly dealt the matter very
differently. He held that information requested by the appellant was general
statistical information and there was no question of referring it to a third
party — as was done by the CPIO — as the requisite information was not supplied
by that third party. He noted that this information was presented by private
persons/party in the affidavits filed before the Election Commission. The CPIO,
according to the AA, was responsible only to furnish information held by his
office and not which was held by other public authorities such as the Election
Commission. He noted that information requested covered information relating to
all candidates who contested election in Goa in the year 2006, which according
to the Appellate Authority was ‘general in nature’. He advised the appellant to
identify and specify the information required by him and to submit a fresh
application to the CPIO where the information was known to be held. The
Appellate Authority dismissed the first appeal of the appellant.

The appellant before CIC contested the conclusion of the
Appellate Authority with very detailed submissions in writing. In one of the
paras he also wrote : “It is evident from the facts that neither the field
officers, nor their superiors took any action to collect the revenue
legitimately due to the State by performing their bounden duty. In such
circumstances, the CPIO should have informed the appellant that no action had
been taken and the field officers and the Commissioner have failed to do their
duty. The reply given by the CPIO is evasive and seeks to cover up serious lapse
on the part of the Department.”

CIC gave interesting decision. He praised the appellant as a
public-spirited person who wishes to use the RTI Act to bring into open,
attempts by certain candidates in the elections to State Legislatures and the
Parliament to escape public scrutiny of the statements they make to the Election
Commission and to the Income-tax authorities as well as to other State agencies
about their personal wealth. The appellant believes — and rightly so — that if
declarations by these candidates were to be carefully analysed by public
authorities dealing in tax collection as well as those engaged in conducting
free and fair elections such as the Election Commission, a number of skeletons
will come tumbling out of cupboards. He bemoaned the fact that public
authorities failed to take coordinated action to prevent, what he believed to
be, manifest violation of the laws of the land by contesting candidates in
election.

However the issue is decided as under :

The response of the Appellate Authority (AA) has been to
examine the matter strictly within the four-corners of the RTI Act. Hence his
conclusion that the CPIO was required only to give that information which he
held and not what was in the control of other public authorities. AA did not go
into the subject of the obligation of the Income-tax Department to collect all
information from wherever it might be available in order to make a correct tax
assessment of an assessee and especially when such assessee happens to be a
candidate contesting in an election, which requires him to make a correct and
complete disclosure of his income and wealth.

The force of the logic employed by the appellant is
compelling. All he urges is that public authorities expand the focus of their
responsibilities and travel beyond the narrow limits of their assignments to
reach out to the information held at multiple points in order to make a correct
assessment which will have vast implications for tax collection as well as for
the sanctity of elections. One would be tempted to grant him the information he
has requested, but the difficulty is that the type of information he has asked
for is not maintained centrally by the public authority to which his RTI
petition is addressed.

In view of the above, it is not possible for the Commission
to go against the decision of the Appellate Authority. The type of information
which the appellant has requested is decidedly not maintained centrally in the
usual course of business. The RTI Act cannot be invoked to force a public
authority to collect information in a particular manner. In fact, it can only
direct disclosure of the information that is available. As such, in spite of
empathy with the spirit of the appellant’s RTI application, this Commission is
unable to order the public authority to provide him the requested information.

However, considering much of what this appellant has said in his RTI submissions – which from all accounts, appears to be an expression of the anguish of a public-spirited and a concerned Indian citizen about overt violations of law regarding various types of disclosures – the public authorities connected with the type of information he has requested, viz. the respective Income-tax Departments and the Election Commission, may take note of these submissions to consider putting in place systems and mechanisms which would create conditions for automatic cross-check and scrutiny of incomes and wealth statements filed, not only before the Income-tax authorities, but also before authorities such as the Election Commission by contesting candidates. The system, if devised, has the potentiality to help the long reach of law to force candidates in elections (who also happen to be tax assessees) to act truthfully and responsibly in matters of disclosure of incomes.

CIC then directed that a copy of his order may be sent to the Chief Election Commission as well as to the Revenue Secretary of the Government of India and the Chairman of the CBDT for such action as they may deem fit, given the objectives spelt out above.

[Mr. D. E. Robinson v. Income-tax Department, ENo. CIC/ AT/ A/2007 /01522 of 27-6-2008]

• What is the Third Party infonnation?

Shri R. K. Sarkar in his RTI application sought information pertaining to Shri Kalyan Chowdhury, who was the Commissioner of Income-tax, Burdwan. The queries were generally related to whether any enquiry was conducted against Shri Chowdhury by his superiors as, according to the appellant, Shri Chowdhury attended office only thrice a week on account of he residing in Kolkata although his posting was at Burdwan. Besides, the appellant wanted to know the details of reimbursement of his telephone bills and so on.

The information was denied on the ground that this was personal information and exempt u/s.8(1)(j) of the RTI Act.

CIC in his decision held that the reasoning of the respondents is flawed. The queries which the appellant has made were regarding Shri Kalyan Chowdhury’s functioning as a government employee and there is no reason why such information should be withheld from the appellant. The Commission in the past has authorised disclosure of information related to individual government servants, which concerned his function as such public servant.

In view of the above, the matter was remitted back to the Appellate Authority to examine the issue denovo with regard to the each query in the light of the observations made as above and to give his finding within 4 weeks from the date of receipt of the order.

[Shri R. K. Sarkar v. Income-tax Department, ENo. CIC/ AT/ A/2008/00232 of 30-6-2008]

Part B : The RTI Act

In the August issue, I had reported on some of the major recommendations on ‘Enforcement of S. 4 of the RTI Act’ of the conference of all ercs and SICs. In this issue, I report on some interesting recommendations of the said conference on other issues connected with the RTI Act.

1. There are instances of non-compliance of orders passed by the Commission. Specific provisions may be included in the RTI Act itself for dealing with contempt proceedings.

2. S. 20 of the RTI Act provides that subject to the contents and conditions of that Section, CIC/ SIC shall impose a penalty.

Issue is: What is the meaning of the word ‘shall’. Does it mean that it is mandatory on CIC/SIC to levy the penalty if the conditions of the Section are covered or is it discretionary?

To reduce uncertainty in this matter, the conference recommends: S. 20 should be amended so as to give discretion to the Commission to decide the quantum of penalty. The word ‘shall’ appearing in S. 20(1) may be substituted by the word ‘may’.

3. Today, only PIOs are made accountable under the Act, the conference recommends: Accountability of public authorities and First Appellate authorities should be ensured: Amendments may be made in S. 20 and S. 2l.

4. The conference also recommends that the Commission be given power to dismiss frivolous or vexatious complaints and the power to review its own decisions.

5. For furthering evolution of the RTI regime, the conference recommends:

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.

Part C : Other News

Good governance:

N. Vittal, the former CVC writes regularly in Mumbai Mirror. In one of his recent articles, what he has written is very relevant for all of us to read:

Non-governmental organisations represent a growing significant element in the dynamics of better governance in our country. In a backward State like Rajasthan, the activism shown by Aruna Roy and her Mazdoor Kisan Shakti Sangathan (MKSS)have made the Right to Information (RTI) Act a significant element in checking and monitoring programmes affecting the public. The national Rural Employment Scheme, perhaps, is best monitored in that State, thanks to the tradition of MKSS activism.

An interesting aspect was highlighted by a visiting American professor, Sussman, an expert on the Freedom of Information Act in the United States, who has been studying the implementation of the Right to Information Act in India. He found that in West Bengal, the bureaucracy was very defensive, making access to information as difficult as possible. All applications have to be made on a Rs.10 stamp paper, which most of the time is not available. On – the other hand, in Bihar, he found that the Government and the media were going out of the way to introduce jingles and advertisements to educate the public about the right available to them under the RTI Act. In Tamil Nadu, the Information Commissioner is optimistic that in due time, this Act may turn out to be effective in empowering the people by bringing greater transparency in the system.

Using the Right to Information Act, active NGOs can effectively monitor the performance of bureaucracies and ensure that there is greater transparency and less corruption. This is the formula needed for good governance.

Travel bills of the Ministers of Maharashtra Government:

Ministers of Maharashtra Government ran up travel bills worth over Rs.7 crore in the first three years of their tenure. The public exchequer had to shell out these funds to pay for Ministers’ trips to their constituencies as well as some foreign jaunts.

Chief Minister Vilasrao Deshmukh’s globe-trotting took him to the top of the list as he incurred expenses of Rs.63.96 lakh. The CM’s domestic travel expenses came to Rs.32.45 lakh, while his foreign jaunts cost Rs.31.51 lakh.

Next in line whose travel bills ran up to Rs.47.86 lakh is Anil Deshmukh, Public Works Department. Maharashtra’s Ministers incurred a total travel bill of Rs. 7.44.crore from April 1, 2004 to March 31,2007, according to figures provided by the Pay and Accounts Office of the State Government in reply to the RTI query.

• Do MPs/ MLAs constitute public authorities? :

UPA Chairperson Sonia Gandhi, who played a pivotal role in seeing the RTI Act through, is herself in the dock. As an MP, she faces the possibility of being penalised Rs.250 per day for not responding to an RTI plea, as a citizen has complained to the Central Information Commission (CIC).

Whether information sought by an applicant from public representative qualifies as information sought under the RTI is the issue. Whether an individual, as an MP or an MLA, constitutes a public authority is also an issue. The Lok Sabha Secretariat (LSS) has taken a stand implying that an MP is not a public authority as defined under the RTI Act.

An RTI. application is also made to MP Rahul Gandhi seeking information on recommendations made by him or his representatives to Ministries and Departments on assistance to NGOs.

The CIC has taken up hearing of five complaints under the RTI, two against Sonia Gandhi and one each against MP Rahul Gandhi, MLA Sahib Singh Chouhan, and Sunita Sharma, municipal councilor. As the issues were related, the complaints were grouped together.

The CIC, in its interim decision, held that an MP has been conferred a specific authority by the Constitution, in return of which he receives remuneration from public funds. But, before taking a decision in this regard, it felt that the interested parties be given an opportunity to be heard.

The CIC has asked the Central Public Information Officer of LSS to appear before it on September 15.

CAG wants to conduct ‘performance audit’ of the Central Information Commission:

In a clash between two apex bodies of accountability, the Central Information Commission (CIC) has reacted adversely to the ‘performance audit’ proposed by the Comptroller and Auditor General (CAG) on the implementation of the Right to Information Act.

CIC questions the very jurisdiction of CAG to hold it to account. It asked CAG to ‘specify the terms of the reference’ of the proposed performance audit before it takes a call on whether it should submit at all to the constitutional body’s jurisdiction.

In an attempt to give a legal cover to its jurisdictional objection, the CIC pointed out that it was “an autonomous entity and the orders passed by it are final and binding, subject to scrutiny only by way of a writ under the Constitution of India.”

Already, very sensitive issue, whether the RTI Act covers the Courts beyond their administrative matters is under controversy. Now this becomes another sensitive issue.

• Power bills:

In the July issue, report was made on power bills of the President of India. Now the RTI application has brought to light ‘light’ bills of the Maharashtra Ministers. The following table shows two interesting figures where the bills in 2007-08 cross Rs.I0 lakhs.

The elected representatives defended themselves stating that the power bills are’ quite normal’ as the residential area is huge and they also have servant quarters which have connection from the same meter. “We see to it that the power consumption is minimised in all ways. Strict instructions have been given to all those who are employed here to use the power judiciously”, Bhujabal said.

• Driving licence:

The RTI query reveals that the three RTOs in Mumbai issued 11.12 lakh duplicate licences in the last five years, while they issued 12.12 lakh new licences during the same period.

This effectively means that Mumbaikars lose 609 licences every day, which looks more like a Ripley’s believe-it-or-not factoid.

• PMO does not respect the spirit of RTI :

On taking the oath of office, every Minister is handed a copy of the code of conduct. It says, among other things, that Ministers should disclose to the PMO details of their assets, liabilities and business interests along with those of their family members.

On 6-11-2007, ‘India Today’ invoked the RTI, seeking information from the Prime Minister’s Office (PMO) whether Union Ministers had filed details of their assets and liabilities.

No information is provided on this application except replies that “the matter is under consideration of the competent authority and the information/reply will be sent in due course.”

Three reminders have been sent, but there is no action. Complaint has been made to CIC on 17-3-2008. Even that is yet not taken up for action.

• RTI fee may be scrapped:

A Parliamentary Committee has decided to recommend scrapping of fees at the time of filing applications seeking information from Government Departments under the Right to Information Act. The Parliamentary Committee, headed by Dr. E. M. Sudarasna Natchiappan, has said scrapping of fees at the initial stage would help in effective implementation of the two-year old law.

“The technicality of admitting an application only on receiving a fee of Rs.10 is undermining such a revolutionary law. We feel that there is an urgent need to do away ‘With this step which reflected a bureaucratic mindset,” Natchiappan told HT.

Study efficacy of RTI :
The Department of Personnel and Training has decided to get international accounting firm Pricewaterhouse Coopers to study the efficacy of the Right to Information Act as it marks its third year on October 12. The RTI Act has been showcased by the UPA Government as one of its key achievements.

Suspicious that this study could end up helping babus instead of citizens, leading RTI activists, including Aruna Roy and her Mazdoor Kisan Shakti Sangathan (MKSS) and Shekhar Singh and his National Campaign for People’s Right to Information (NCPRI) have launched their own alternative study.

They have formed RAAG (RTI Accountability and Assessment Group) which will examine what they call/the RTI regime.’ Significantly, Google Foundation has stepped in to make this study possible by offering $ 250,000 as an initial grant.

• PAN card:

In one appeal before ClC, the appellant wanted to know from the Income-tax Department as to what has happened to his application for cancellation of his PAN card. In reply, the Department has informed the appellant that the Income-tax Department was not empowered to cancel any PAN card once it was issued.

Readers may consider whether information furnished is correct. Ss.(7) of S. 139(A) provides:

7) No person who has already been allotted a permanent account number under the new series shall apply, obtain or possess another permanent account number.

All those who were issued two PAN cards were compelled to surrender one. Obviously the same must have been cancelled by the Income-tax Department. Further, what happens after the PAN holder dies, the firm which is allotted PAN gets dissolved, etc. Are PAN numbers not to be cancelled?

BCAJ Admin

Right To Information

r2i

Part A : Decision of the High Court of Delhi

This feature, divided into three parts, normally starts with
CIC’s decisions. In past, more than once a departure was made, instead of CIC’s
decisions, it covered Courts’ decisions. Since long, I have been making efforts
to procure RTI decisions of the Courts, High Courts and Supreme Court, when
CIC’s/SIC’s decision is challenged under the writ. Search has remained elusive.
However, one CA member requested me to give him citation of the Delhi High Court
Order reported under ‘Other News’ in BCAJ of April, 2008 under “Mere existence
of an investigation, no ground for refusal of information”. I had no citation
available. It gave me the motivation to really search hard — a challenge. With a
friend of mine, we went on serious search on Net and finally traced out the
order through Google search. It deals with the tax evasion petition submitted to
the investigation wing of the Income-tax Department, hence interesting to the
readers. The said order is briefly summarised hereunder :

Before I do so, let me record that CIC’s decision against
which the writ is filed was reported in this feature in September, 2006.

Mr. Bhagat Singh, the petitioner in this case, was married in
2000 to Smt. Saroj Nirmal. In November, 2000, she filed a criminal complaint
alleging that she had spent/paid as dowry, Rs.10 lakhs. Alleging that these
claims were false, the petitioner, with a view to defend the criminal
prosecution launched against him, approached the Income-tax Department with a
tax evasion petition (TEP) dated 24-9-2003. Thereafter, in 2004 the Income-tax
Department summoned the petitioner’s wife to present her case before them.
Meanwhile, the petitioner made repeated requests to the DIT (Investigation) to
know the status of the hearing and TEP proceedings. On failing to get a
response, he moved an application under the RTI Act in November 2005. He
requested for the following information :

(i) Fate of the petitioner’s complaint (tax evasion
petition) dated 24-9-2003.

(ii) What is the other source of income of the petitioner’s
wife Smt. Saroj Nirmal than from teaching as a primary teacher in a private
school.

(iii) What action the Department had taken against Smt.
Saroj Nirmal after issuing a notice u/s. 131 of the Income-tax Act, 1961,
pursuant to the said TEP.

The application was rejected by PIO of the Income-tax
Department u/s.8(1)(j) of the RTI Act, holding that information sought was
personal in nature and did not further public interest. The Appellate Authority
also dismissed the appeal citing provisions of S. 8(1)(j) and also 8(1)(h) under
which exemption is granted, if the information would impede the process of
investigation or apprehension or prosecution of offenders.

In the second appeal, CIC vide its order dated 8th May 2006,
set aside the rejection of information and held that “as the investigation on
TEP has been conducted by DIT (Inv), the relevant report is the outcome of
public action which needs to be disclosed. The same cannot be exempted
u/s.8(1)(j) as interpreted by the Appellate authority. Accordingly, DIT (Inv)
was directed to disclose the report as per the provision u/s.10(1) and (2),
after the entire process of investigation and tax recovery, if any, is complete
in every respect.

After the above Order also, the Income-tax Department did not
furnish the information, probably
holding that the entire process of investigation is not complete yet. Enquiry by
CIC’s office at the instance of the petitioner, to the Income-tax Department
(Investigation) for its comments with respect to non-compliance of the Order and
to show cause as to why a penalty should not be imposed u/s.20 of the RTI Act,
also brought no response.

The petitioner in this writ petition requested the Court to
partially quash CIC’s Order insofar as it directs disclosure after the entire
process of investigation and tax recovery is completed. “It was urged that CIC,
after appreciating that there was no merit in the plea regarding applicability
of S. 8(1)(h), and being satisfied, should not have imposed the condition
regarding completion of proceedings, which could take years. Such power to
restrict access to information did not exist under the Act.

Paragraphs 11 to 14 of the Order reflect the tenor of the RTI
Act and hence instead of paraphrasing them are reproduced in original :

11. The Universal Declaration of Human Rights, adopted by the United Nations in 1948, assures, by Article 19, everyone the right ‘to seek, receive and impart information and ideas through any media, regardless of frontiers’. In (the case of) Secretary, Ministry of Information and Broadcasting, Govt. of India and Ors v. Cricket Association of Bengal and Ors., [1995 (2) SCC 161], the Supreme Court remarked about this right in the following terms :

The right to freedom of speech and expression includes the right to receive and impart information. For ensuring the free speech right of the citizens of this country, it is necessary that the citizens have the benefit of plurality of views and a range of opinions on all public issues. A successful democracy posits an ‘aware’ citizenry. Diversity of opinions, views, ideas and ideologies is essential to enable the citizens to arrive at informed judgment on all issues touching them.

This right to information was explicitly held to be a fundamental right under Article 19(1)(a) of the Constitution of India for the first time by Justice K. K. Mathew in State of UP v. Raj Narain, (1975) 4 SCC 428. This view was followed by the Supreme Court in a number of decisions and after public demand, the Right to Information Act, 2005 was enacted and brought into force.

12. The Act is an effectuation of the right to freedom of speech and expression. In an increasingly knowledge-based society, information and access to information holds the key to resources, benefits and distribution of power. Information, more than any other element, is of critical importance in a participatory democracy. By one fell stroke, under the Act, the maze of procedures and official barriers that had previously impeded information has been swept aside. The citizen and information seekers have, subject to a few exceptions, an overriding right to be given information on matters in the possession of the state and public agencies that are covered by the Act. As is reflected in its preambular paragraphs, the enactment seeks to promote transparency, arrest corruption and to hold the Government and its instrumentalities accountable to the governed. This spirit of the Act must be borne in mind while construing the provisions conained therein.

13. Access to information u/s.3 of the Act is the rule and exemptions u/ s.8, the exception. S. 8 being a restriction on this fundamental right, must therefore be strictly construed. It should not be interpreted in a manner as to shadow the very right itself. U / s.8, exemption from releasing information is granted if it would impede the process of investigation or the prosecution of the offenders. It is apparent that the mere existence of an investigation process cannot be a ground for refusal of the information; the authority withholding information must show satisfactory reasons as to why the release of such information would hamper the investigation process. Such reasons should be germane, and the opinion of the process being hampered should be reasonable and based on some material. Sans this consideration, S. 8(1)(h) and other such provisions would become the haven for dodging demands for information.

14. A rights-based enactment, akin to a welfare measure, like the Act, should receive a liberal interpretation. The contextual background and history of the Act is such that the exemptions, outlined in S. 8, relieving the authorities from the obligation to provide information, constitute restrictions on the exercise of the rights provided by it. Therefore, such exemption provisions have to be construed in their terms; there is some authority supporting this view [See Nathi Devi v. Radha Devi Gupta, 2005 (2) SCC 201; B. R. Kapoor v. State of Tamil Nadu, 2001 (7) SCC 231 and V. Tulasamma v. Sesha Reddy, 1977 (3) SCC 99]. Adopting a different approach would result in narrowing the rights and approving a judicially mandated class of restriction on the rights under the Act, which is unwarranted.

Thus holding, the Court stated that Orders of PIO, and CIC do not reflect any reasons why the investigation process would be hampered. It further stated “S. 8(1)(j) relates only to investigation and prosecution and not to recovery. Recovery in tax matters, in the usual circumstances, is a time-consuming affair, and to withhold information till that eventuality, after the entire proceedings, despite the ruling that investigations are not hampered by information disclosure, is illogical.

As to the issue of whether the investigation has been complete or not, the Court held that the authorities have not applied their mind about the nature of information sought. As is submitted by the Petitioner, he merely seeks access to the preliminary reports of investigation pursuant to which notices u/s.131, u/s.143(2), u/s.148 of the Income-tax Act have been issued and not as to the outcome of the investigation and reassessment carried out by the Assessing Officer. As held in the preceding part of the judgment, without a disclosure as to how the investigation process would be hampered by sharing the materials collected till the notices were issued to the assessee, the respondents could not have rejected the request for granting information. The CIC, even after overruling the objection, should not have imposed the condition that information could be disclosed only after recovery was made.

The Court then ruled that “the order of the CIC dated 8th May 2006 insofar as it withholds information until tax recovery orders are made, is set aside”. PIO and AA were directed to release the information sought, on the basis of the materials available and collected with them, within two weeks.

The Court also made adverse comments on the Income-tax Department’s PIO and AA by stating that the materials on record clearly show the lacka-daisical approach by them in releasing the information sought.

Part B : The RTI Act

Chapter 5 of the Annual Report 2005-06 as published by the Central Information Commission is titled: Significant initiatives by Ministries/Departments/Public Authorities (hereinafter referred to as entities) and suggestions for reforms.

Some significant initiatives taken by the entities are summarised hereunder.

S. 25(3)(f) of the RTI Act mandates the public authorities to report:
“Any facts which indicate an effort by the public authorities to administer and implement the spirit and intention of the Act.”

Report presents efforts made by some entities to administer and implement the Act beyond mandatory requirements.

10 entities have set up Information Facilitation Centre/RTI Cell to accept information requests and payment of fees and/ or a separate RTI Section/Cell to implement the Act.

Some entities have drafted an internal procedure to implement the RTI Act, some have set up cash register for application and other information fees, so that the money received can be monitored and accounted for. Some reported that they have taken the initiative of designating alternate Public Information Officers and Assistant PIOs. Three of them viz. the Noida Special Economic Zone (Ministry of Commerce & Industry), the Office of the Registrar of Companies Tamil Nadu-Coimbatore (Ministry of Company Affairs) and the State Bank of India (Ministry of Finance) have reported that they have disseminated awareness about the Act amongst the public.

Several public authorities have also reported that they have undertaken training of their Public Information Officers and issued guidelines about implementing the Act.

The National Information Centre (NIC) is in the process of setting up a RTI Request Management Information System (RRMIS) to monitor requests received u/ s.6 of the Act. There are three modules. The concerned public authority, the Central Information Commission and the Assistant Public Information Officer at the Department of Posts can use these modules:

Request and First Appeal Module for Public Authority

Second Appeal Module for Central Information Commission (CIC)

Request and Appeal Module for Central Assistant Public Information Officer (CAPIO), Department of Posts.

There is also an updation system where the stage at which the application is, can be updated as and when required.

Suggestions received from public authorities for reforms shall be covered in the next issue.

Part C: Other News

RTI gives visually impaired great relief:
The RTI Act came to the rescue of 200 visually impaired and physically-challenged Thane residents. Their battle of five years came to an end when in response to RTI application, State Chief Information Commissioner (SCIC) directed Thane Municipal Corporation (TMC) to provide details of the allotment of telephone booths and also requested TMC to expedite the matter. It is understood that the applicant has received the details and also the allotments have been made. serc Mr. Joshi was very pleased and remarked:

“The Order went beyond the RTI Act’s ambit as the panel considered the anguish of the hundreds of physically-challenged people who were willing to put in hard labour, but denied employment opportunities”.

• CIC’s office has no information:
RTI application revealed the shocking state of affairs in the very office which is the last refuge under RTI regime. One RTI activist, Shruti Singh Chauhan sought details of cases heard by the erc, but where verdicts were still not announced. She was told that the Commission did not maintain records of cases with it. Information has shocked one and all including erc Chief, Mr. Habibullah. He has now cracked the whip and ordered an in-house upgrade of records. CIC advises public authorities to ensure transparency in maintaining records. The Act also so provides. It was a shame that CIC’s own office defaulted in it. Who will fine it! Now it is ordered that within one month it will get up-to-date in its record keeping.

The Times of India wrote an editorial in this context to say that it is unconscionable that the very body created to bring about greater transparency in the working of public bodies is itself unable to furnish information about its own operation. Further two paras read :

The Right to Information Act is perhaps the most powerful legislation that empowers citizens to check on the functioning of public establishments. It has the ability to curb corruption, which is one of the biggest evils facing the country. Lack of transparency and accountability on the part of Government officials increases the propensity for corruption.

Although the Right to Information Act is landmark legislation, it is just a stepping stone towards eradicating corruption and bringing about lucidity in the working of the Government. Right to information has to mature and translate into duty to inform. Just like businesses are accountable to investors, the Government too should be made accountable to citizens.

• Maharashtra MLAs – unjust allowance:
RTI has many dimensions. Recently unexpected dimension came to light: Action taken out of fear of exposure under RTI. It is understood that the Maharashtra State Government has approved a proposal to allow each legislator to claim Rs.25,000 per month as mileage allowance without any obligation to produce bills to avoid giving explanations to citizens under the Right to Information Act or in response to a Public Interest Litigation (PIL).

As per existing rules, a legislator can demand a vehicle from the district collector to tour his/her constituency. If the administration fails to. provide one, the legislator can make his own arrangements and produce the bills before legislature secretariat and claim a maximum of Rs.25,000 in a month (based on a rate of Rs.I0/km).

Being aware that RTI can expose the legislators, it is now suggested to remove the need to produce bills, the mileage allowance would be credited to the account of each legislator every month. The State Cabinet accepted the proposal.

• Our MPs don’t pay MTNL telephone bills!
The telephone line of an average Mahanagar Telephone Nigam Limited subscriber would be disconnected if he did not pay bills by the stipulated due date. But the telephone lines of several MPs and various State and Central Government establishments ate still operational even though bills amounting to crores are still pending.

RTI query revealed that outstanding from such leaders (?) who have to set example of discipline have outstanding dues of Rs.375 crores over the last 3 years.

• S. 8(1)(a), (d) and (e) of the RTI Act:
Can the details of a Memorandum of Understanding (MOU) signed between the State Government and a multinational chemical firm undermine the sovereignty and integrity of the nation? The Maharashtra State Industries Department thinks so.

RTI application had sought information on MOU signed between the Industries Secretary and Dow Chemicals International Pvt. Ltd. for starting a facility to manufacture some chemicals at Chakan near Pune. Dow is responsible for producing Agent Orange and napalm – used in the Vietnam War. It also produces ozone-depleting CFCs and the widely-used insecticide, Dursban.

In reply to RTI application, the PIO of the Indutries Department rejected the application by stating that it is exempt information under clauses (a), (d) and (e) of S. 8(1) of the RTI Act.

It is felt that denial is unjustified as it is difficult to appreciate how a commercial deal between private chemical firm and the State can harm the interests of the nation [clause (a)], or can be considered as disclosing trade secrets / intellectual property [clause (d)] or can be considered as information pertaining to private party held in a fiduciary relationship [clause (e)].

• Asset declaration by judges:
In response to RTI application, the Supreme Court’s CPIO has stated that the information relating to declaration of assets by Judges is “not held by or under the control of” its registry and therefore could not be furnished by him.

Reply has exposed the SC’s resistance to transparency. Though the CJI can easily say whether Judges have been filing declarations of their assets, the CPIO has claimed that the information is not in possession of the registry. The matter is now pending before the CIC.

• Mumbai City Police:
The details of the city police budget obtained under the RTIAct reveal that Rs.559 crore (i.e., more than 75%) is being spent only to keep 40000 personnel in service out of the budget of Rs.716 crore.

Experts feel that at a time when the city faces the threat of organised crime and terrorism, the police should not spend all its money on salaries, though conceding that maintaining a police force is expensive as unlike other Government departments, it does not earn revenue. Yet, it still does not justify the present scenario.

BCAJ Admin

Right To Information

r2i

Tax records of political parties :

Very interesting and significant decision is given by CIC Mr.
A. N. Tiwari under appeal decided on 29-4-2008.

One Ms. Anumeha C/o. Association for Democratic Reforms (ADR)
of New Delhi had sought information from the CPIO, Central Board of Direct
Taxes, New Delhi as noted hereunder. The said application was transferred to
appropriate 9 CPIOs i.e., the appropriate Commissioners of Income-tax
(including CIT of Mumbai, New Delhi, Chennai). The information sought was on the
following three points :

(i) Whether the political parties mentioned in the RTI
application have submitted their Income Tax Returns for the years 2002-03,
2003-04, 2004-05, 2005-06, 2006-07.

(ii) PAN allotted to these parties.

(iii) Copies of the Income-tax returns filed by the
political parties for the afore-mentioned years along with the corresponding
assessment orders, if any.

While CIT, Jammu & Kashmir and Guwahati provided the
information, all other CPIOs declined to divulge information citing various
reasons, some of which were :

Information is covered u/s.8(1)(d), (e), (g), (h) or (j) of the RTI Act.

Permanent Account Number (PAN) is a statutory number, which functions as a
unique identification of each taxpayer. Making PAN public can result in misuse
of this information by other persons and could compromise the privacy of the
financial transactions linked with PAN.

Information relates to third parties who have objected to the disclosure of
this information.

Information is subject to confidentiality u/s.138 of the Income-tax Act, 1961.

In the first appeal made to CCIT, Bhubaneswar, the matter was
remanded to the CPIO but in other cases, concerned CCITs dismissed the appeals.

Before the Commission in the second appeal, the appellant
made certain submissions including the following :

(i) The avowed objective of a political party in a
democracy is to represent people in Parliament and Legislature that are
law-making bodies through the process of elections and that their very
existence is indicative of their goal of representing the interests of the
people who elect them to power.

(ii) Each and every act of theirs should be open to public
scrutiny. Transparency in their working and financial operation is essential
in larger public interest and all sections of government, including the
Income-tax Department, are duty bound to hold the public interest above the
interests of political parties.

(iii) The disclosure of financial information relating to
political parties including I.T. returns and assessment orders to general
public would promote such transparency and reduce the role of black money and
other undesirable, even illegal activities in the operation of political
parties.

Since the information sought involved significant issues, the
Commission decided to issue notices of hearing to all the 20 political parties
in respect of which information was sought and also to the Election Commission
and the Ministry of Law and Justice asking them to file their written
submissions.

Both the Election Commission and the Ministry of Law &
Justice filed their comments. Also political parties submitted their comments.
While CPI & CPM submitted ‘no objection’ to the disclosure of information, other
political parties including (1) BSP (2) NCP (3) The Samajwadi Party (4) BJP (5)
DMK (6) AICC objected to the disclosure of information on various grounds.

The applicant in her rejoinder to the replies submitted by
the above-noted parties made written submissions, which included following
points :

That she herself and her organisation are completely non-political and non-partisan. The Association for Democratic Reforms (ADR), which she represents, works for improving the governance, democratic, political and electoral processes in the country. Earlier also they have filed Public Interest Litigations (PILs) in the Delhi High Court, which resulted in the landmark and historic judgment of the Supreme Court (March 13, 2003) making it mandatory for candidates contesting elections to State Assemblies and Parliament to disclose their criminal antecedents, if any; assets and liabilities; and educational qualifications, by way of a sworn affidavit to be filed as an essential part of the nomination form.

It is also pertinent to refer to the recommendations of the Law Commission of India contained in their 170th Report on ‘Reform of the Electoral Laws’. An extract from para 3.1.2.1 of which is reproduced below :

“It is therefore, necessary to introduce internal democracy, financial transparency and accountability in the working of the political parties. A political party which does not respect democratic principles in its internal working cannot be expected to respect those principles in the governance of the country. It cannot be dictatorship internally and democratic in its functioning outside.”

The appellant also submitted that where plural remedies occur under different enactments, even if inconsistent, they empower a person to choose one, (Bihar State Cooperative Marketing Unions Ltd. v. Uma Shankar Saran, AIR 1993 SC 1222). In the alternative, assuming without prejudice that there is no inconsistency or discordance between the provisions of the RTI Act and S. 138 of the Income-tax Act and both can be given effect to, then the existence of an alternative remedy u/s.138 of the Income-tax Act or any other Act would not bar a citizen from seeking information tinder the RTI Act, 2005 and to accept any other interpretation would mean to render the RTI to a nullity. The RTI Act is an encompassing piece of iegislation and S. 2(f) of the said Act specifically defines ‘information’ to include If information relating to a private body which can be assessed by a public authority under any other lawfor the time being in force. ” The Right to Information Act, 2005 (RTI Act) on the other hand is a specific and special piece of legislation directed towards providing for access to information under the control of public authorities.

The Commission framed the following issue for determination:

Whether income tax returns along with its assessment order and PAN of various political parties can be considered to be exempted u/s.8(1)(d), (e), (g), (h) and (j) of the RTI Act and as to whether such information can be disclosed in larger public interest?

In its decision covering 22 paras and running into nearly 8 pages, the Commission, ruled on the above issue. Some paras in full and others in part are reproduced hereunder:

Political parties are a unique institution of the modern Constitutional State. These are essentially civil society institutions and are, therefore, non-governmental. Their uniqueness lies in the fact that in spite of being non-governmental, political parties come to wield directly or indirectly influence exercise of governmental power. It is this link between State power and political parties that has assumed critical significance in the context of the Right of Information Act which has brought into focus the imperatives of transparency in the functioning of State institu-tions. It would be facetious to argue that transparency is good for all State organs, but not so good for the political parties, which control the most important of those organs. For example, it will be a fallacy to hold that transparency is good for the bureaucracy, but not good enough for the political parties, which control those bureauracies through political executives.

In modern day context, transparency and accountability are spoken of together as twins. Higher the levels of transparency, greater the accountability. This link between transparency and accountability is sharply highlighted in the Preamble to the RTI Act.

The RTI Act aims at expanding accountability through transparency at all levels of governance. It is difficult to be persuaded by the argument that though political parties control the political executives who are their appointees these parties should be allowed to be insulated from the demands of transparency.

The question that additionally needs to be asked is whether the avowed purpose of the RTI Act, as set out in its Preamble to combat corruption is being achieved by allowing the finances of the political parties to remain beyond public scrutiny or even public view. There is now widespread concern about a hyphenated relationship developing between party finance and political corruption. The lack of openness and transparency in party finance is matched by the lack of adequate State regulation of such finance.

The scheme of the Act makes it abundantly clear that disclosure of information to a citizen is the norm and non-disclosure by a public authority an exception and it necessitates justification for any decision not to disclose information.

Democratic States, the world over, are engaged in finding solutions to the problem of transparency in political funding. Several methodologies are being tried such as State subsidy for parties, regulation of funding, voluntary disclosure by donors at least large donors and so on. The German Basic Law contains very elaborate provisions regarding political funding. S. 21 of the Basic Law enjoins that political parties shall publicly account for the sources and the use of their funds and for their assets. The German Federal Constitutional Court has in its decisions strengthened the trend towards transparency in the functioning of political parties. It follows that transparency in funding of political parties in a democracy is the norm and, must be promoted in public interest. In the present case that promotion is being effected through the disclosure of the Income-tax returns of the political parties.

Based on the above, the Commission ruled as under:

The Commission directs that the public authorities holding such information shall, within a period of six weeks of this order, provide the following information to the appellant:

Income-tax returns of the political parties filed with the public authorities and the assessment orders for the period mentioned by the appellant in her RTI-application dated 28-2-2007.

The Commission also directs that the PAN of those political parties whose Income-tax returns are divulged to the applicant shall not be disclosed. It has been decided not to disclose PAN in view of the fact that there is a possibility that this disclosure could be subjected to fraudulent use, reports of which have lately been appearing. It is, therefore, considered practical that while Income-tax returns and the assessment orders pertaining to political parties be disclosed, there should be no disclosure of the PANs of such parties.

[Ms. Anumeha, Clo ADR, New Delhi v. CCITICIT of 9 jurisdictions in nine appeals bearing different numbers]

Part B : The RTI Act

Standing Committee of the Parliament on RTI Act, 2005:

In February 2009, the items were reported :

1. Level of awareness.

2. Use and misuse of the RTI Act.

Hereunder other 2 items:

Reduction of 20-year period for keeping documents:

A common misunderstanding is that the RTI Act only allows access to information that is less than 20 years old. In fact, the RTI Act does not exempt information on the basis of how old it is.

Currently the law [(So8(3)] only allows three categories of exemptions for information older than 20 years, namely, national security [8(1)(a)], Parliamentary privilege [8(1)(c)], and cabinet papers [8(1)(i)]. Therefore, the law does not restrict access to information, which is more than 20 years old, but actually makes it easier to access older information than current information, which is less then 20 years.

However, this does not mean that departments have to preserve records for perpetuity. Departments are free to destroy records or to transfer them to archives as per their rules and procedures related to the destruction or archiving of records. S. 19(8)(a)(iv) of the RTI Act empowers and obligates the Information Commissions to examine the rules and procedure relating to the destruction of records of any public authority and to give directions as necessary to bring these in tune with the intention of the RTI Act. Therefore, we do not think any change is required.

Impediments, including the Official Secrets Act : Our study suggest that the major impediment to the implementation of the RTI Act is the lack of awareness among the people on how to use the Act and what benefits it could have.

A close second is the mindset of the public authorities and the PIOs to find all possible reasons to deny information. The fact that Information Commissions are not imposing penalties, as mandated by the RTI Act, has made many PIOs think that there are no costs to be paid for denying information on the flimsiest of grounds.

Though the RTI Act specifically provides for the overriding of the Official Secrets Act, when there is a conflict between the two, the fact is that the continued existence of the Official Secrets Act (OSA) does cause a fair amount of confusion among both the applicants and the PIOs. Therefore, it might be the best to repeal the OSA and to put the few important provisions that are required, despite the RTI Act, either into an another existing Act like the National Security Act, or into a new Act.

Voluntary disclosures:

We believe that the suo motu voluntary disclosure of information is critical to the success of the RTI Act. As already mentioned, this is perhaps the most effective way in which the pressure of RTI applications on government departments can be minimised. Suo motu declarations not only save time, but also provide protection to applicants from the weaker segments of society, who are otherwise targeted by those who have a vested interest in keeping the information secret.

Suo motu declarations also ensure that government is not just reactive to those who seek information but treats all potential applicants equally. For example, our experience shows that where suo motu declarations are not insisted upon, ration shop owners make sure that those few people who file RTI applications are properly serviced and do not have a cause for complaint. However, this leaves out the very large majority, who for one reason or another either do not file applications or cannot file them. On the other hand, where the complete records of a ration shop are put into the public domain suo motu, the ration shop owner cannot anticipate who among the various customers would check the records and point out any discrepancies. Therefore, the ration shop owner is forced to ensure that everyone’s records are accurate.

Our experience is that most public authorities do not bother to be in compliance of S. 4, and certainly do not put out all the information that could be put out, suo motu. Partly this is because the law does not directly mandate any penalty for non-compliance with S. 4. In addition, there are also no incentives for public authorities to make the effort.

It would perhaps be best if an independent agency from within the government, like the National Informatics Centre (NIC) of the Government of India is given the responsibility of creating, maintaining and updating websites and printed material giving the required suo motu information for all ministries and departments of the government. Additionally, the concerned ministries and departments could also be given positive incentives -like perhaps trophies for those who perform best in terms of suo motu disclosures.

It is also important that suo motu disclosures are not just web-based, as many people in India do not have r access to the web. These should be in printed form, through sign-boards, radio, TV, and even by using voice mail in cell phones and innovatively communicating information through songs and theatre (like the MKSS songs that sing out all the provisions of the RTI Act, and explains them in verse !)

Part C : Other News

Justice D. Y. Chandrachud on the RTI Act:

The Right to Information Act has brought about an enormous change in the way we are governed, assured Justice D. Y. Chandrachud of the Bombay High Court at a recent talk on ‘Democracy, Governance and the Rule of Law’. It transpired that people don’t just seek details of case backlog or judges’ salaries, sometimes there are ‘wholly frivolous’ que-ries as well. Recently, an RTI application asked the High Court to reveal how much was spent on flower decoration at a recent function or at the banquet. The Judge, however, said people have a right to ask even irrelevant details. A Court officer is now tracking the floral budget. He might just come out smelling of roses.

BMC to punish the officer for RTI delay:

The Brihanmumbai Municipal Corporation’s city engineer has issued a show-cause notice to a Public Information Officer – in this case, the Deputy Chief Engineer (Planning and Development) – asking why his increment for next year should not be withheld. The order comes after State Information Commissioner Suresh [oshi levied a fine Rs.25,000 on the officer for not dispatching a Right to Information (RTI) application to the department concerned in time. The State Information Commissioner had also said in his order that the Municipal Commissioner should investigate the delay and take action as necessary.

Answer sheet on examination paper:

The Calcutta High Court allowing transparency in the evaluation system ruled that students had the right to see their answer sheet and educational institutions should allow it. The verdict came on an appeal by Calcutta University against a Single Bench’s order directing it to show a maths answer sheet to Presidency College student Pritam Rooj after he had sought a re-evaluation. Under the current system, students who doubt the marking can seek a revaluation of their answer sheets. But that is done by the examiner and students have to take the examiner’s word for it. Giving its ruling, a Division Bench comprising Chief Justice S. S. Nijjar and Justice Dipankar Datta directed those concerned to act on all such pending applications and show the answer sheets to aggrieved students within a month. The Bench, however, also set a time limit for students to see their answer sheets.

Performance of Information Commissioners of Maharashtra :

Project expedited on RTI application:

Today the villagers of Rangpar (a tiny village of 750 people, 25 km from Wankaner in Rajkot district) were happy to see that there is a 2 km road connecting their village to highway. The Gando Baval (babool) shrubs along the roadside have been cleared by the grampanchayat authorities. It took a visually challenged Ratna Ala, 26, to open the eyes of the authorities through the right to information (RTI)Act. At last some development work has been started by grampanchayat in Rajkot. For the last two years Ala has been using RTI to get information on how many schemes the panchayat implemented and how much money they spent. Though he did not get accurate information, it helped the panchayat realise that its inefficiency would be exposed. Ala’s struggle is on, but he is happy that the road has been constructed and the dense shrubs, which were a hindrance to passers-by, are cleared.

Discloser of the assets of Commissioners of Information:

Information Commissioners have chosen not to disclose their own assets on the ClC’s website in a development which may cause many to wonder whether the transparency watchdog has trouble following what it preaches to others.

In a candid admission, Chief Information Commissioner Wajahat Habibullah said “All Information Commissioners have declared their assets, but they felt that this information should not be put on the Commission’s website. They did not want it on the ClC website.”

Queried further on why the transparency watchdog was not keen on disclosure of its assets, Habibullah said, “The Commissioners felt that they could put up the information on their personal websites”. Crucially, none of the eight Commissioners have their own website.

BCAJ Admin

Right To Information

r2iPart A : CIC’s decisions

Guidelines on scrutiny
of income-tax returns by CBDT :

A very interesting and important issue regarding scrutiny
policy for non-corporate assessees and disclosure of instructions, directions
and clarifications issued by the CBDT on the scrutiny policy came up before CIC.
The same is decided by a Bench of 3 Commissioners.

Shri Kamal Anand of People for Transparency of Sangrur was
the appellant. He had sought for a number of information, some were furnished by
PIO and AA, and some were denied by holding that the same are exempt u/s.8(1)(a)
of the RTI Act. Hence, the matter came up before CIC. The issue for
determination before CIC was :

Whether supply of instructions, directions, clarifications
relating to scrutiny policy for non-corporate sector could be held to be
prejudicial to economic interest of the State and hence could be denied
u/s.8(1)(a) of the Right to Information Act, particularly when broad
parameters of the scrutiny guidelines have already been provided to the
appellant ?

It may be noted that initially this appeal was heard by a
Single Member of the Commission and he had directed the Department of Revenue to
have the matter considered by the highest level in the public authority and come
up to the Commission with the Department’s viewpoints.

The Department made detailed submissions
after having been duly considered by the Union Finance Minister and as approved
by him. In the submissions, the Department stated that it is of the view that
disclosure of scrutiny guidelines adversely affects the economic interest of the
State and facilitates committing the offence of tax evasion. Therefore, these
should not be disclosed to the public.

Three Members’ Bench after considering the submissions
received, held as under :

It is certainly within the domain of the concerned public
authority to decide and determine as to whether disclosure would adversely
affect the economic interest of the State or not. The Commission can only look
into as to whether the determination by the Department about the probable effect
of a particular policy disclosure is based on objective criteria or not, or as
to whether the Department has arrived at a particular conclusion in a reasoned,
or in a mechanical or arbitrary manner. Here is a case where a public authority
at the highest level has analysed the whole issue at our behest and has given
its considered opinion to this Commission about the possible effect of the
disclosure on economic interest of the State. We must conclude that the
implications of disclosure have been put to the closest scrutiny.

The Commission cannot, therefore, enter into the adequacy or
otherwise of the criteria taken into account by the concerned public authority.
It cannot surpass an objective consideration and place its own subjective
consideration thereon. When a denial is covered by an exemption clause u/s.8 of
the Right to Information Act, so long as such application of exemption is based
on objective criteria and is not arrived at in a mechanical or arbitrary manner,
this Commission does not intend to interfere in such issues.

Based on the above, the Commission held that denial of
information is justified u/s.8(1)(a) of the RTI Act.

[No. CIC/AT/A/2007/00617 : Shri Kamal Anand v. Central
Board of Direct Taxes, 11-2-2008]

For the information of the readers, S. 8(1)(a) reads as
under :

8. Exemption from disclosure of information —

(1) Notwithstanding anything contained in this Act, there
shall be no obligation to give any citizen, —

(a) information, disclosure of which would
prejudicially affect the sovereignty and integrity of India, the security,
strategic, scientific or economic interests of the State, relation with
foreign State or lead to incitement of an offence.

RTI Act v.
S. 138 of the Income-tax Act :

Three issues for determination before the Bench of 3 Members
of the Central Information Commission were :

1. Whether certain information can be provided to the
appellant under the RTI Act when S. 138 of the Income-tax Act prohibits
disclosure of such information ?

2. Whether in such a situation the overriding provision as
contained in S. 22 of the RTI Act comes into play ?

3. Whether S. 8(1)(j) of the RTI Act is applicable to the
case of the appellant ?

The application was made by Shri G. A. Rawal of Ahmedabad,
who is an informant to get information on ‘Tax payable as per the decision of
Settlement Commission in the case of Winprolene Plastics and tax paid by the
said company.’ Information sought was denied by holding that the same is
prohibited u/s.8(1)(j) of the RTI Act.

Decision and reasons :

l
Both the Right to Information Act, 2005 and S. 138 of the Income-tax Act, 1961
deal with disclosure of information. While the Right to Information Act is a
general law concerning the disclosure of information by public authorities, S.
138 of the Income-tax Act is a special legislation dealing with disclosure of
information concerning assessees. This Commission in Rakesh Kumar Gupta v.
ITAT, of 18th September, 2007 decided by a Full Bench, has dealt with the
issue of applicability of special law to the exclusion of the general law. (Note
: This decision was extensively covered in this feature in the BCAJ of November
2007.)

• Crucial two terms u/s.8(1)(j) are ‘personal information’ and ‘invasion of the
privacy’. In the decision, the Commission has analysed the ambit and scope of
both the terms.

• The interpretation of S. 8(1)(j) has been the subject of some dispute. The Section deals with excluding from the purview of the RTI Act (a) in-formation of a personal nature which has no relationship to a public activity or interest, and (b) whose disclosure would lead to unwarranted invasion of privacy.

• Insofar as (b) is concerned, there is very little doubt that there could be a set of information which may be said to belong to the exclusive private domain and hence not be liable to be disclosed. This variety of information can also be included as ‘sensitive and personal’ information as in the U.K. Data Protection Act, 1998. Broadly speaking, these may include religious and ideological ideas, personal preferences, tastes, political beliefs, physical and mental health, family details and so on.

• But when the matter is about personal information unrelated to public activity, laying down absolute normative standards as touchstones will be difficult. This is also so because the personal domain of an individual or a group of individuals is never absolute and can be widely divergent given the circumstances. It is not possible to define ‘personal information’ as a category, which could be positively delineated; nevertheless it should be possible to define this category of information negatively by describing all information relating to or originating in a person as ‘personal’ when such information has no public interface. That is to say, in case the information relates to a person which in ordinary circumstances would never be disclosed to anyone else; such information may acquire a pub-lie face due to circumstances specific to that information and thereby cease to be personal. It is safer that what is personal information should be determined by testing such information against the touchstones of public purpose. All information which is unrelated to a public activity or interest and if that information be related to or originated in person, such information should qualify to be personal information u/s.8(1)(j).

• Insofar as the assessment details are concerned, they are definitely personal information concerning some individual or legal entity. The assessment details if disclosed may result in an undue invasion to the privacy of an individual. Disclosure of such details, therefore, cannot be permitted unless there is an overriding public interest justifying disclosure. But in the instant case, what has been asked for by the appellant in his RTI application is as follows:

“Tax payable as per the decision of the Settlement Commission in the case of Winprolene Plastics and tax paid by said company.”

• Based on above, the Commission directed the CPIO to provide the information within a period of two weeks from the date of the order.

[No. CIC/ AT/ A/2007 /00490, dated 5-3-2008 in the matter of Shri G. R. Rawal v. Director General of Income Tax (investigation), Ahmedabad]

Note: S. 24 of the RTI Act provides that the Act shall not apply to certain organisations. The Second Schedule lists such organisations. Ss.(2) of S. 24 empowers the Central Government to amend the Schedule by including therein any further organisation. It is understood that on 28-3-2008, (may be to undo such decision in future) the Notification is issued, under which the Directorate General of Income-tax (Investigation) is included in the Second Schedule.

Part B : The RTI Act

Chapter 6 of the Annual Report 2005-06 as published by the Central Information Commission (CIq deals with suggestions to reform by the CIC.

• All stakeholders – citizens, civil society organisations, public authorities and the Information Commissions – have felt that the implementation of the RTI Act has been a mixed experience.

• CIC is of the view that though S. 4, requiring the Government to publish all information except that which the law permits to be kept a secret, is the key to the RTI Act, unfortunately, public authorities neglected it the most in 2005-06. Public authorities find themselves too overwhelmed by information seekers to focus their energies on furnishing or even expanding the scope of suo moto disclosures of information. For this exercise to be fruitful, there has to be an attitudinal change.

Based on the above, CIC suggests that Citizen’s Charters adopted by most public authorities should be made an integral part of S. 4(1)(b) disclosures, so that the public is aware of the commitments of a public authority towards it.

• There has been a lot of demand to expand the modes of depositing the fee of making an RTI application. In an effort to do so, the Government recently decided to accept Indian Postal Orders as a mode of payment. The Commission would recom-mend that even a Rs.lO postal stamp affixed to the application should be considered as valid payment of fee for registration of an RTI application. There is also a case for ensuring that rates of fees across the country are made uniform.

• One complaint has been that the beneficiaries of the Act have largely been public officials and the educated urban people, and the benefits have not percolated to the poor and the people from the rural areas. This indicates that there is a need on the part of Government to fulfil its obligations u/ s.26 of the Act. Public authorities must set aside a specific budget for dissemination of knowledge amongst citizens, so that the provisions of the Act can be utilised at all levels of society, through heightened public awareness.

• The Commission feels handicapped about not being able to hold Central PIOs and public authorities accountable for non-implementation of its orders/ decisions. To give teeth to its powers, it is essential that the Commission be given powers of contempt of Court.

• Provision will need to be made to apply the CIC’s decisions to States with all attendant penalty provisions; to allow State Commissions to refer a matter to the CIC; and to empower the CIC to withdraw a case, which may be before it or a State Commission for appeal.

• The Commission should be empowered, financially and administratively, to allocate funds and undertake suitable research and development activities for the promotion of relevant programmes that are critical for strengthening the information regime, as envisaged in the Act. The Government may set up a Centre for Accountability and Transparency for undertaking activities relating to research in best practices in creating an open access regime and other such related activities that would effectively strengthen the Commission in pursuing its mandate.

Part C : Other News

• BCAS appreciated in Loksatta:

CA Prof. Suresh Mehta has sent a cutting of an article in the Marathi daily ‘Loksatta’ in which appreciation is made of the contribution of BCAS in spreading of RTI movement.

• No provisions for flats for differently abled citizens:

Vijaya Kalan (37) is partially paralysed and she is a heart patient. But what makes her situation worse is the fact that she has to drag herself up and down seven floors from her apartment, whenever there is load shedding in her complex at Kharghar.

From the reply received in response to RTI application, it is gathered that CIDCO, that developed the housing complex, has blatantly over-looked the rights of handicapped people. They have not reserved any apartments for them in the housing societies developed since 1995.

• Is the RTI effective in curtailing corruption?

Ms. Aruna Roy, the mother of the RTI movement in India, is of the view that response of the people has been better than expected. The existing statistics on RTI are based on appeals made to Commissioners and do not reflect the real picture. Actually, a much larger number of people ask for information and get it. Media coverage has focussed on the use of RTI by urban activists or the controversies that have arisen by denial of information in some cases. On the other hand, in rural areas, in a more routine manner, a lot of information is being sought and obtained regularly to serve very useful purposes such as improving the public distribution system.

• Suppression of information:

Justice Chandrachud, talking about his experience as a Judge, said that each time he heard a matter he asked himself “Do I make a difference ?” because he did not see the orders being implemented. “We must contemplate the need to incorporate citizens as stakeholders and increase the participation of citizens in governance as well as allow experimentation”. One of the greatest problems faced by the judiciary was access to information. There is a deliberate act of suppression of information and the Right to Information.Act is performing a valuable function.

• PIO seeking bribe!

In the first case of its kind after the Right to Information Act was enacted nearly three years ago, the Anti-Corruption Bureau (ACB) has trapped an Ulhasnagar Information Officer and his assistant while they were accepting a bribe.

Ulhasnagar resident Gulshan Anand Sachdeo had submitted an RTI application for information on certain plots of land. While the Public Information Officer (PIO) gave him the documents, they were not attested. The PIO and his assistant told Sachdeo that he would have to first pay Rs. 12,000 for things to move.

Sachdeo went straight to the Thane ACB Deputy Commissioner Kishore Jadhav. He named the officer, Raosaheb Govind Bhalerao, and senior clerk Ramchandra Gavit. The ACB told Sachdeo to go back and pretend to hand over the money, which he did. Bhalerao and Gavit were caught in the act.

This is the first time an Information Officer has been caught for asking for a bribe to provide certified documents.

• Power bills of the President of India:

The whole country suffers from power shortage. However, Rashtrapati Bhavan is always kept brightly lit ! Rashtrapati Bhavan has incurred power bills of Rs.16.71 crore over the past five years, almost doubling from Rs.2.4 crore in 2003 to Rs.4.39 crore in 2007.

The information on electricity usage in the President of India’s official residence was revealed in a recent RTI reply. In the five-year period from January 2003 to December 2007, Rashtrapati Bhavan consumed 2.69 crore units of electricity. Its usage rose from 37 lakh units of power in 2003 to 68 lakh in 2007. Last year’s bill of Rs.4.39 crore was higher than the Rs.4.02 crore spent in 2006.

• UNDP report, just released, has found that corruption continues to be a crippling problem in countries in the Asia-Pacific region:

The report has published three sets of ranking produced by Transparency International, the World Bank and the International Country Risk Guide. While India has improved slightly on Transparency International’s corruption index for 2007, it has done worse or remained static in the other two rankings. This is a worrying trend which shows that India’s rapid growth over the past few years hasn’t contributed to a decline in corruption.

Under’ A Thought for Today’ (june 16) “It is difficult, though not impossible, to stop government officials from hiding their corrupt take.” Editorial in The Times of India writes:

“However, the picture is not entirely gloomy. There are encouraging signs of success in tack-ling corruption. Right to Information (RTI) laws have had the effect of making governments more accountable. In 1990, there were only 13 countries in the Asia-Pacific with RTI laws. By 2007, the number had risen to 70. In India, RTI, which is considered to be one of the most progressive such legislations in the developing world, has forced government officials to become more transparent.”

• Fight for your Rights:

A new programme on Right to Information is being telecast every Saturday at 9 p.m. on NDTV Metro Nation (not NDTV India or Profit or Imagine or other associated channels). It is a one-hour long programme called ‘Fight for your Rights’. Arvind Kejriwal is the anchor. The first episode was telecast on Saturday, May 17th. Repeat telecasts can be viewed on Sundays (it is available on the regular cable channel and on Tata Sky DTH, you can access it on NDTV 24 x 7 channel).

BCAJ Admin

Right To Information

r2i

Part A : Decisions of CIC and SIC

S. 8(1)(g) of the RTI Act :

S. 8(1) of the RTI Act provides exemption from disclosure of
information, clause (g) thereof says : “Information the disclosure of which
would endanger the life or physical safety of any person or identify the source
of information or assistance given in confidence for law enforcement or security
purposes.”

The issue in the case of Brij Lal v. Deputy Commissioner
of Police was whether a copy of the enquiry report which was conducted by
vigilance branch of the police can be supplied. PIO held the view that the same
cannot be provided due to exemption u/s.8(1)(g). The first AA ordered that
copies shall be provided after deleting the name and identity of the witnesses.
In the appeal before CIC, Mr. Brij Lal asked : “It is appealed that a full and
clean copy of the Inquiry Report indicating clearly the names of the persons
concerned be provided.”

The restriction mentioned in S. 8(1)(g) would seem to clearly
apply to this case as the witness gives assistance in confidence for law
enforcement. Therefore, the names and identity of witnesses are generally not
disclosed, as it may endanger their life or physical safety.

On examination of the report however CIC found that it also
deletes the names of complainant, accused and enquiry officer. The definition
above equally and clearly does not cover names of complainant, accused or
enquiry officer. This will be particularly so when the RTI applicant himself is
either the complainant or the accused. To this extent, therefore, CIC directed
that a fresh copy of the enquiry report be provided to the appellant restoring
the names of the complainant, the accused and the enquiry officer wherever
deleted.

[Brij Lal v. DCP, North West, Appeal No. CIC/WB/A/2007/00516,
decided on 15-5-2007]

S. 6(3) of the RTI Act :

In the last month, one decision of SIC of Maharashtra was
reported. Herewith is one other decision of Dr. S. V. Joshi (CSIC, Maharashtra)

Shri S. K. Nangia had sought from Jt. Chief Registrar,
Directorate of Industries, Government of Maharashtra, information regarding
Notification/ order issued by the Government designating co-operative industrial
estates in Mumbai as public authority.

PIO replied that this information be obtained from the
Government. Citing the provisions of S. 6(3) (which requires PIO to transfer the
RTI application to the appropriate public authority if the information sought is
held by that another public authority, etc.) Shri Nangia insisted that PIO so
do. There was no response. He then filed another RTI application. Again, this
application and the first appeal also remained unattended to. Hence, he filed
the complaint before SCIC. Dr. Joshi made the following order :

In his submission before the Commission, PIO admitted that
as per his knowledge there is no system of publishing the names of the
institution to whom RTI Act is applicable in the Gazette. In fact, this fact
ought to have been made clear by the PIO to the applicant instead of asking
applicant to go to the Government.

PIO has however given instance of his commitment to RTI.
According to him, taking advantage of difference of opinion about
applicability or RTI to co-operative institutions, when Kandivali Co-operative
Industrial Estate was avoiding appointment of PIO, he doggedly pursued the
matter and saw to it that they appoint PIO.

His lapses were basically because of lack of knowledge.

“This Commission feels that all the replies to the
application should have been given by the PIO without him making reference to
the Government or asking applicant to go the Government which he should do
within 5 days of receipt of this order.” Taking into consideration the fact
that he has tried to reply within the time limit and also his commitment to
RTI, Commission decided to give him a chance to work better and discharge his
responsibility under RTI properly by merely reprimanding and not by imposing
any fine.

[Shri S. K. Nangia v. PIO and Joint Chief Registrar,
Directorate of Industries, Mumbai, Complaint No. 2008/621/02, decided on
10-11-2008]

Part B : The High Court decision

The petitioner is PIO, Dr. Celsa Pinto. She has challenged
the order dated 27-7-2007 passed by the Goa Information Commission, holding her
responsible for furnishing incorrect, incomplete or misleading information.

The complainant had sought information on various letters
from GPSC for filling up certain posts, seniority list, etc. She also had asked
the following information :

(i) Copy of the seniority list of the common cadre of the
Librarian post from the Directorate of Education, Technical Education and
Higher Education.

(ii) Why the post of curator was not filled up by promotion
after retirement of V. B. Hubli, and the post filled by direct recruitment
through GPSC ?

(iii) Why the Librarian from the Engineering College was
not considered for promotion for the post of Curator in the Central Library
when it was fallen vacant due to retirement of Shri V. B. Hubli ?

Initially, Dr. Pinto replied to all items of information sought including two questions above as ‘Not available’.

The matter came up before the Goa Information Commission in appeal.

The Goa Information Commission has held the petitioner guilty of furnishing incomplete, misleading and false information and has imposed a penalty of Rs.5,000 which is liable to be deducted from the petitioner’s salary.

Before the High Court, it was submitted that SIC has wrongly held that the petitioner provided incomplete and misleading information, etc.

The High Court passed the following order:

The Commission has with reference to question No. 1 held that the petitioner has provided incomplete and misleading information. As regards point No. 1, it has also come to the conclusion that the petitioner has provided false information in stating that the seniority list is not available. It is not possible to comprehend how the Commission has come to this conclusion. This could have been a valid conclusion if some party would have produced a copy of the seniority list and proved that it was in the file to which the petitioner, Information Officer, had access and yet she said ‘Not Available’. In such circumstances it would have been possible to uphold the observation of the Commission that the petitioner provided false information in stating initially that the seniority list is not available.

As regards the requisition Nos. 2 and 3 by which the petitioner was called upon to give information as to why the post of Curator was not filled up by promotion and why the Librarian from the Engineering College was not considered for promotion, the petitioner had initially answered by stating that the information was “N.A.” (Not Available). Thereafter, she had clarified by stating that it means “I don’t know”. The Commission has initially observed in para No. 13 that it does not see anything wrong in the petitioner’s reply that she does not know the information because “P.LO. cannot manufacture the information.”

It can be recalled that the petitioner corrected the information by explaining that “Not Available” meant “she does not know.” It is not possible to accept the reasoning of the Commission. There is no substance in the observation that merely because the petitioner initially said “Not Available” and later on corrected her statement and said she does not know, the petitioner provided incomplete and incorrect information. In the first place, the Commission ought to have noticed that the Act confers on the citizen the right to information. Information has been defined by S. 2(f) as follows:

“S. 2(f) – Information means any material in any form, including records, documents, memos e-mails, opinions, advices, press release, circulars, orders, logbook, contracts, reports, papers, samples, models, data materials held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force.”

The definition cannot include within its fold answers to the question ‘why’, which would be the same thing as asking the reason for a justification for a particular thing. The Public Information Authorities cannot expect to communicate to the citizen the reason why a certain thing was done or not done in the sense of a justification, because the citizen makes a requisition about information. Justifications are matter within the domain of adjudicating authorities and cannot properly be classified as information.

In this view of the matter, the order of the Commission appears to suffer from a serious error of law apparent on record and results in the miscarriage of justice. In the result, the impugned order is hereby set aside.

[Dr. Celsa Pinto v. Goa SIC & Anr., W.P. No. 419 of 2007, decided on 3-4-2008]

Part C : Other News

• RTI information provided with condition:

In an ingenious attempt to have its cake and eat it too, AIIMS has made a disclosure under the RTI with the condition that it was meant only for the applicant’s ‘personal consumption’ and he should not share it with the media without the ‘written permission’ of its director.

Such conditional disclosure is contrary to the scheme of RTI as it allows the applicant to use the law for any purpose. This is evident from S. 6(2), which exempts the applicant from giving “any reason for requesting the information”.

• SIC, Maharashtra needs police protection:

Chief Information Commissioner Suresh [oshi was among those stuck in office till late in the night on 26/11 though he was nowhere near CST, Hotel Taj, Hotel Oberoi-Trident or Nariman House where terrorists struck. He had been besieged by a group of six RTI activists who allegedly made him sit back well past midnight demanding that he pass an order on an RTI appeal that very day.

Joshi has now written to Police Chief Hasan Gafoor seeking police protection, pointing out that many of the people who visit his office are accused in bomb blasts or named in criminal cases.

Speaking to Mumbai Mirror, Joshi said: “The RTI activists are good people, but they were adamant and were unwilling to leave. Their desire was that I pass an order the same day, but I was firm (on not doing their bidding). They cannot dictate to us. Earlier, we did not feel the need for protection, but now we can’t predict the nature of people visiting our office.”

• RTI and Stamp Duty refunds:

If you are still waiting to get your refund from the stamp duty office even after months of filing your application for the same, the Right to Information (RTI) Act can come to your rescue.

The information law can not only help you get the refund, but also penalise the errant bureaucrat who hasn’t responded to your queries.

Tarun Ghia, a chartered accountant, had sought information on the number of applications that had come for stamp duty refund and the total amount of refund that had been disbursed in the last two years. Mr. Ghia also said that the unreasonable delay may instigate corruption and will be the cause for misery for the common man.

A person is eligible for refund when he has paid the stamp duty, but the document remains unexecuted. Such cases are common, especially in real estate transactions, and the stamp duty office is flooded with applications for refund.

The State Information Commission (SIC) has imposed a penalty of Rs.25,OOOon the Deputy Super-intendent of Stamps, Mumbai, for not providing information to an applicant on stamp duty refunds.

BCAJ Admin

Right To Information

Right to Information

S. 8(1)(h) :

S. 8(1)(h) reads as under :

8(1) Notwithstanding anything contained in this Act,
there shall be no obligation to give any citizen,

(h) information which would impede the process of
investigation or apprehension or prosecution of offenders;

The petitioner, Bhagat Singh in the writ proceedings
approached High Court of Delhi seeking partial quashing of the Order of CIC and
also petition to direct PIO to supply the information sought by him immediately.

The facts of the case are as follows :

The petitioner was married in 2000 to Smt. Saroj Nirmal. In
November 2000 she filed a criminal complaint alleging that she had spent/paid as
dowry an amount of Rs.10 lakh. Alleging that these claims were false, the
petitioner, with a view to defend the criminal prosecution launched against him,
approached the Income-tax Department with a tax evasion petition (TEP) dated
24-9-2003. Thereafter, in 2004 the Income-tax Department summoned the
petitioner’s wife to present her case before them. Meanwhile, the petitioner
made repeated request to the Director of Income-tax (investigation) to know the
status of the hearing and TEP proceeding. On failing to get a response he moved
an application under the Act in November, 2005. He requested for the following
information :

“(i) Fate of petitioner’s complaint (tax evasion
petition) dated 24-9-2003.

(ii) What is the source of income of petitioner’s wife
Smt. Saroj Nirmal other than from teaching as a primary teacher in a private
school ?

(iii) What action the Department had taken against Smt.
Saroj Nirmal after issuing a notice u/s.131 of the Income-tax Act,
1961/pursuant to the said Tax Evasion petition.”

The application was rejected by PIO u/s.8(1)(j). The first AA
also rejected it not only u/s.8(1)(j) but also u/s.8(1)(h).

In the second appeal before CIC, it rejected the contention,
of PIO & AA that clause (j) applies. As to clause (h), it ruled :

“as the investigation on TEP has been conducted by DIT
(Inv), the relevant report is the outcome of public action which needs to be
disclosed. This, therefore, cannot be exempted u/s.8(1)(j) as interpreted by
the Appellate Authority. Accordingly, DIT (Inv) is directed to disclose the
report as per the provision u/s.10(1) & (2), after the entire process of
investigation and tax recovery, if any, is complete in every respect’’

Before the Court, petitioner submitted that disclosure of the
information sought could not in any way impede the investigation process nor CIC
has given any reason as to how such disclosure would hamper investigation.

The Court in para 12 analysed the Right provided under the
RTI Act, 2005 and in paras 13 & 14 analysed the right of information vs. denial
thereof :

12. The Act is an effectuation of the right to freedom of
speech and expression. In an increasingly knowledge-based society,
information, and access to information holds the key to resources, benefits
and distribution of power. Information, more than any other element, is of
critical importance in a participatory democracy. By one fell stroke, under
the Act, the maze of procedures and officials barriers that had previously
impeded information, has been swept aside. The citizen and information seekers
have, subject to a few exceptions, an overriding right to be given information
on matters in the possession of the state and public agencies that are covered
by the Act. As is reflected in its preamble paragraphs, the enactment seeks to
promote transparency, arrest corruption and to hold the Government and its
instrumentalities accountable to the governed. This spirit of the Act must be
borne in mind while constructing the provisions contained therein.

13. Access to information, u/s.3 of the Act, is the rule
and exemption u/s.8, the exceptions. S. 8 being a restriction on this
fundamental right, must therefore be strictly construed. It should not be
interpreted in manner as to shadow the very right itself. U/s.8, exemption
from releasing information is granted if it would impede the process of
investigation or the prosecution of the offenders. It is apparent that the
mere existence of an investigation process cannot be a ground for refusal of
the offenders; the authority withholding information must show satisfactory
reasons as to why the release of such information would hamper the
investigation process. Such reasons should be germane, and the opinion of the
process being hampered should be reasonable and based on some material. Sans
this consideration, S. 8(1)(h) and other such provisions would become the
heaven for dodging demands for information.

14. A right based enactment is akin to a welfare measure
and like the Act, should receive a liberal interpretation. The contextual
background and history of the Act is such that the exemptions outlined in S.
8, relieving the authorities from the obligation to provide information,
constitute restrictions on the exercise of the rights provided by it.
Therefore such exemption provisions have to be constructed in their terms;
there is some authority supporting this view [see Nathan Devi v. Radha Devi
Gupta, 2005 I AD (SC) 357; VII (2004) SLT 615; 2005 (2) SCC 201; B. R.
Kapoor v. State of Tamil Nadu, VI (2001) SLT 659; 2001 (7) SCC 231 and
V. Tulasamma v. Sesha Reddy, 1977 (3) SCC 99]. Adopting a different
approach would result in narrowing the rights and approving a judicially
mandated class of restriction on the rights under the Act, which is
unwarranted.

The Court then held as under:

“As to the issue of whether the investigation has been complete or not, I think that the authorities have not applied their mind about the nature of information sought. As is submit-ted by the Petitioner, he merely seeks access to the preliminary reports investigation pursuant to which notices u/s.131, u/s.143(2), u/s.148 of the Income -tax Act have been issued and not as to the outcome of the investigation and reassessment carried on by the Assessing Officer. As held in the preceding part of the judgment, without a disclosure as to how the investigation process would be hampered by sharing the materials collected till the notices were issued to the assessee, the respondents could not have rejected the request for granting information. The CIC, even after overruling the objection, should not have imposed the condition that information could be disclosed only after recovery was made.”

The Court then set aside the order of CIC in so for as it withholds information until tax recovery orders are made. It also directed PIO and AA to release the information sought on the basis of the materials available and collected by them within two weeks.

[Bhagat Singh v. CIC and others, WP(C) No. 3114 of 2007 dated 3-12-2007] [RTI R IV (2010) 223 (Delhi)]

PART B?: The RTI Act, 2005

S. 19(8)(a) and implementation of S. 4 of the RTI Act:

S. 19 deals with “Appeal. Ss.(8) grants certain powers to the Information Commission (both central

& state). Ss.(8) reads as under:

(8) In its decision, the Central Information Com-mission or State Information Commission, as the case may be, has the power to:

(a)   require the public authority to take any such steps as may be necessary to secure compliance with the provisions of this Act, including:
(i)   by providing access to information, if so requested, in a particular form;
(ii)   by appointing a Central Public Information Officer or State Public Information Officer, as the case may be;
(iii)   by publishing certain information or categories of information;
(iv)   by making necessary changes to its practices in relation to the maintenance, management and destruction of records;
(v)   by enhancing the provision of training on the right to information for its officials;
(vi)   by providing it with an annual report in compliance with clause (b) of Ss.(i) of S. 4;
(b)   require the public authority to compensate the complainant for any loss or other detriment suffered;
(c)   impose any of the penalties provided under this Act;
(d)   reject the application.

It appears for the first time Commission has is-sued directions to Public Authorities u/s.19(8)(a) of the RTI Act as above jointly signed by 7 Central Information Commissioners. Document is dated 15-11-2010. Brief contents of the said directions are as under:

Commission has been nothing in its decisions that although the RTI Act has now been in place for five years, a key element of the law- voluntary disclosure by public authorities, enshrined in S. 4 of the Act has not been fully implemented in letter and spirit. There are, no-doubt departments and public authorities, which are more transparent and open than the others, but most do not conform to the matrix of disclosure set out in S. 4.

Secrecy in the functioning of the public authority should be the exception and not the norm, since as stated in the preamble to the RTI Act, transparency of information is vital to a functioning democracy.

The first step towards promotion of transparency in the functioning of the public authority should be an improvement in the record-management practices. S. 4 lists out the ingredients of record management in some detail.

The time has now come when the public authorities must start a sustained drive to inform their governance practices with transparency and to take the series of small steps required to put in place a system which promotes it. S. 4 provides only a window to possible actions and much more will need to be done in order to achieve the type of goals which are envisaged.

Based on above introductory write up, the Commission by powers invested

U/s.19(8)(a) of the RTI Act has directed that obligations set out in S. 4 of the RTI Act be discharged by the public authorities as per the time limits set out by it. Its directions pertain to two items:
(1) Record Management Obligation and (2) Personnel related details and functions of public authorities.

S. 4 requires public authority to publish certain information covering above two subjects. Commission notes that action in this regards has been tardy and that it is time that these requirements of S. 4 be fully implemented in a systematic manner and directs

That these actions as ordained above shall be completed by all public authorities within a period of 120 days from the date of this order.

Commission further directed that,

(i) The information in compliance with S. 4 obligation by Public authorities shall be uploaded on a portal to be set up exclusively for this purpose by the CIC.

(ii) Within 30 days of this order, each public authority shall designate one of their senior officers as ‘Transparency Officer’ (with all necessary supporting personnel), whose task it will be
(a) to oversee the implementation of the S. 4 obligation by public authorities, and to apprise the top management of its progress.

(b) to be the interface for the CIC regarding the progress of (a).
(c) help promote congenial condition for positive and timely response to RTI-requests by CPIOS, deemed-CPIOs.

(d) to be a contact point for the public in all RTI-related matters.
(iii) Names of the transparency officers shall be communicated to throw Commission by public authorities.

Each ministry or department of the Government has been directed to forward these directions to public authorities u/s.25(2) of the RTI Act, 2005.

The Commission has written to all secretaries in each ministry or department of the Government of India and has requested them to forward the directions to Public Authority under their jurisdiction exercisable u/s.25(2) of the RTI Act.

In such communication, the Commission writes;

(a) The ultimate aim of the RTI Act is that public should have access to most information held by public authorities without the use of the RTI laws. S. 4 of the RTI Act is an initial, but necessary, prelude to achievement of that objective. Hence the importance of this Section.

The Commission is to set up portal for uploading all S. 4 compliance-related information. The idea is that an average citizen should be able to see for himself as to how public authorities have progressed in complying with the transparency obligations cast on them by S. 4 of the RTI Act.

It is now learnt as reported in media that DiPT has challenged the demand made by the Commission for Pro-active disclosure and appointment of transparency officers by public authorities. DoPT itself has refused to follow CIC’s directions as noted above CIC has now sought legal advice on the objections raised by DoPT.

Citizens and RTI Activists are perplexed at this attitude of DoPT. Now, Chief Information Commissioner, Satyananda Mishra has reacted & stated; “I do feel that the ministry should rise above the technicality and look at the objectives of the CIC order which was to ensure that Government implement the provisions of the Act”.

Let us hope that other ministries. Departments do not flout these directions so boldly and proactively demanded by the Central Information Commission.

INFORMATION ON & AROUND

RTO’s (Regional Transport Office) working in Mumbai:

If you have to wait for days to get a new license or renew an existing one, do not get surprised. Frustrated by delays in issuing licences/duplicate permits and also in the ‘annual passing (clearance)’ of autos/taxis, an auto union led by Thampy Kurlan recently sought data under RTI, which showed a sharp contrast between vehicular population and the RTO staff strength in Mumbai.

In March 1999, the total number of registered vehicles in all three Mumbai RTOs was 9.10 lakh. This rose to 16.74 lakh by March 2009. Similarly, the number of driving licences issued till March 1999 was 33.5 lakh, which increased to 56.77 lakh in March 2009. In comparisons, the staff strength (of RTO) declined from 913 officers and men (in 1999) to just 738 employees in 2009.

Working in MANTRALAYA, Mumbai:

IT pays to be a government servant?! For, where else would you not be sackled if you did not report to duty for even one day in almost two years?

That, unfortunately, is the state of affairs in Mantralaya where action is still pending against such employees, as was revealed in the Law and Judiciary department’s reply to an RTI by MID Day. However, despite filing the RTI application on absenteeism in Mantralaya almost a month back, the 34 other departments have not replied to it at all.

The RTI was sent to the Public Information Officer, General Administration Department (GAD), on November 25, 2010, it sought information on Mantralaya staffers who remained away from duty and the action that was taken against them by the government. On December 6, S. B Dalvi, information officer from the Law and Judiciary department, replied to the RTI and stated that 5 out of the 300-plus employees in the department have been irregular at work and have not been reporting for more than 18 months.

SEBI challenges CIC’s order in Court:

SEBI has moved Bombay High Court against an order of the Central Information Commission (CIC) to make public action by it on a complaint against RIL in 2000 on the sale of 12 crore shares for the benefit of its promoters. The CIC, on an RTI application by Arun Agrawal, had directed SEBI to provide details of action taken on the complaint of S. Gurumurthy of Swadeshi Jagran Manch

Right of service after RTI:

Times of India under ‘YOUR RIGHT TO KNOW’ writes: Without the right to service, the RTI will be rendered meaningless as mere knowledge of what the babu has noted in the files is not enough. It must be supplemented by giving people the right to demand service from civil servants. This alone can make files get dusted out and translate decisions to actual work on the ground.

Youngest Indian to file an RTI query:

At CNN/IBN Citizen Journalist awards ceremony this month an award is given to Aishwarya Sharma, from Lucknow, young girl of 9 years who filed a Right to Information (RTI) query for removal of a garbage disposal site in front of her School.

Her initiative was a success and a Public Library has now been constructed in that place.

BCAJ Admin

Right To Information

r2iRight to Information
is a fundamental right :

One Mr. Mangla Ram Jat of Jaipur had sought the following
information from the PIO of Banaras Hindu University (BHU).

“Kindly make available to me the complete text of the
‘question paper’, provided by the university to the examinees of the pre-P.G.
Medical (M.D/M.S) Examination 2008 held on 17-2-2008 by the Institute of
Medical Sciences, along with standard answer key adopted by the university.”

He received the following reply :

“With reference to the information/document sought by you
under the RTI Act, this is to inform you that the question paper along with
the key answer to M.D/M.S Exam-2008, conducted by the Institute of Medical
Sciences, BHU cannot be given to you as the disclosure of the same is not
favourable in larger public interest.”

First AA also rejected the appeal. Second appeal then was
filed on 31-5-2008, which came for hearing before the Central Information
Commissioner Mr. Shailesh Gandhi. In his order, he has dealt with some basic
issues and the high power of RTI. The order is considered as landmark and hence
many paras thereof are reproduced hereunder :

The Right to Information is one of the most fundamental human
rights recognised by the world community and stands incorporated in the
Universal Declaration of Human Rights and International Covenant on Civil and
Political Rights (Art. 19). This has always been a fundamental right of the
citizens under Article 19 (1)(a) of the Constitution of India, and stands
codified as the Right to Information Act, 2005.

Before going further, it is desirable to look into the
Preamble of the Act and some of its provisions. The Preamble reads as :

“And whereas democracy requires an informed
citizenry and transparency of information which are vital to its functioning
and also to contain corruption and to hold governments and their
instrumentalities accountable to the governed;

“And whereas revelation of information in actual
practice is likely to conflict with other public interests including efficient
operations of the governments, optimum use of limited fiscal resources and the
preservation of confidentiality of sensitive information;

“And whereas it is necessary to harmonise this conflicting
interest while preserving the paramountcy of the democratic ideal;

“Now therefore, it is expedient to provide for furnishing
certain information to citizens who desire to have it.”

The preamble is the soul of the Act and gives an insight into
the minds of the framers of the Act. It clearly spells out the aims and
objectives of the Act. Accountability and transparency are the paramount
objectives of the Act. Right to Information is not only a legal right, but also
a fundamental right as enunciated by the Supreme Court in plethora of judgments.

S. 3 of the Act states : “Subject to the provisions of this
Act, all citizens shall have the right to information.”

As per S. 3 of the Act, citizen’s right to access information
under the Act is absolute, subject only to limitations prescribed under the Act.
This Section forms the core of the Act and is a crisp, unambiguous declaration
of the aims and objectives of the Act. To make this right meaningful and
effective, citizens are not required to give any justification for seeking
information as laid down in S. 6(2) which reads as follows :

“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.”

The obligation on the public authority to give information to
the sovereign citizens is absolute and is limited only by S. 8 and S. 9. (the
said Sections not reproduced here).

Any refusal of information has to be only under one or more
grounds mentioned in S. 8 (1) or S. 9. The Act gives no scope to the
adjudicating authorities to import new exemptions other than those that have
been provided under the Act and thereby deny the information. In a democracy the
government belongs to the people and therefore the rights of the owner to access
this information has to be respected very carefully. Since in S. 3 it has been
stated that ‘subject to the provisions of this Act, all citizens shall have the
right to information’, it follows that denial of information can only be on the
basis of the exemptions in the Act and no other grounds for denial are valid.

A similar question relating to revealing information
regarding exam details came up for consideration under the Act before the High
Court of Calcutta in the matter of Pritam Rooj v. University of Calcutta and
Ors., (AIR 2008 Cal. 118). This judgment which was pronounced on 28-3-2008,
after the orders of the Commission which have been relied upon by the
respondent, states :

“The umbra of exemptions must be kept confined to the
specific provisions in that regard and no penumbra of a further body of
exceptions may be conjured up by any strained devise of construction”.

Going through the decision in Appeal No. 845/ICPB/2007 titled
as B. L. Goel v. AIIMS relied upon by the respondent, the Commission
finds that none of the exemptions as required under the Act to deny information
have been relied upon by the Commission while deciding the said appeal. The
Commission is of the view that the aforesaid appeal was decided citing argument
of ‘public interest’, which is not an exemption under the Act. While deciding
the said appeal, the Commission came to the conclusion that ‘by disclosing this
information we will not be able to protect any larger public interest’. However,
this Commission, after going through the above quoted Sections of the Act is of
the view that nothing in the Act envisages denial of information on the ground
that the information will not be able to protect any larger public interest.

The test of public interest is to be applied to give information, only if any of the exemptions of S. 8 apply. Even if the exemptions apply, the Act enjoins that if there is a larger public interest, the information would still have to be given. There is no requirement in the Act of establishing any public interest for information to be obtained by the sovereign citizen; nor is there any requirement to establish ‘protecting of any larger public interest’. Therefore, in view of the above provisions of the Act, the denial of information in the Commission’s orders is ‘per incuriam’. I therefore, respectfully differ with the view taken by the Commission in B. L. Goel v. AIIMS.

This Commission is conscious of the fact that it has been established under the Act and being an adjudicating body under the Act, it cannot take upon itself the role of the legislature and import new exemptions hitherto not provided. The Commission cannot of its own impose exemptions and substitute their own views for those of the Parliament. The Act leaves no such liberty with the adjudicating authorities to read law beyond what it is stated explicitly. There is absolutely no ambiguity in the Act and tinkering with it in the name of larger public inter-est is beyond the scope of the adjudicating authorities. Creating new exemptions by the adjudicating authorities will go against the spirit of the Act.

Right to Information as part of the fundamental right of freedom of speech and expression is well established in our constitutional jurisprudence. Any restriction on the fundamental rights of the citizens in a democratic polity is always looked upon with suspicion and is invariably preceded by a great deal of thought and reasoning. Even the Parliament, while constricting any fundamental rights of the citizens, is very wary. Therefore, the Commission is of the view that the Commission, an adjudicating body which is a creation of the Act, has no authority to import new exemptions and in the process curtail the fundamental right of information of citizens.

Even the exemptions u/s.8(1) are not absolute, and are subject to larger public interest as mentioned in S. 8(2) which reads,

“Notwithstanding any of the exemptions permissible in accordance with sub S. (1), a public authority may allow access to information if public interest in disclosure outweighs the harm to protected interest.”

Therefore, for the reasons stated above, the Commission comes to a conclusion that there can be no sanction of law for denying the information to the appellant.

The appeal is allowed.

The PIO will give the information sought by the appellant in his RTI application before 15 January, 2009.

[Mr. Mangla Ram fat v. CPIO, Banaras Hindu University, Appeal No. CIC/OK/ A/2008/00860 decided on 31-12-2008]

CIC v. SC:

A very interesting, delicate and significant issue has surfaced in the context of jurisdiction of Central Information Commission v. that of Supreme Court of India.

Chief Justice of India (CJI) Balakrishnan had taken the view:

“The Chief Justice is not a public servant. He is constitutional authority. RTI does not govern constitutional authorities”.

While the Chief Central Information Commissioner, Wajahat Habibullah held the view:

“The office of the CJI comes under the purview of the RTI”.

Facts of the appeal which came before the Central Information Commission are:

Shri Subhash Chandra Agrawal submitted an application under the RTI Act in November 2007 requesting the tPIO of Supreme Court of India (SC) to provide him a copy of the resolution dated 7-5-2007 passed by all the Judges of the SC which required every Judge to make a declaration of assets in form of real estate or investments held in their names or in the name of their spouses and any person dependent on them to the CJl. The appellant also requested the CPIO to provide him information on any such declaration of assets, etc. ever filed by the Hon’ble Judges of the Se. The RTI application also covered a request for information concerning any declarations filed by the High Court Judges about their assets to the respective Chief Justices in the various High Courts. While the CPIO of the SC provided a copy of the resolution dated 7-5-1997, as referred to above, he declined to provide the remaining part of the information concerning the declaration of assets by the Hon’ble Judges of the SC and High Courts on the ground that the said information is not held by or under the control of the Registry of the SC of India.

The First AA after hearing the appellant in person and after perusal of the records decided to remand back the matter to the CPIO to consider the question as to whether S. 6(3) of the RTI Act is liable to be invoked by the CPIO. The CPIO heard the appellant again in respect of the applicability of S. 6(3) of RTI Act to the facts and circumstances of the case and after considering the matter decided as follows:

“In the case at hand, you yourself knew that the information sought by you is related to various High Courts in the country and instead of applying to those Public Authorities you have taken a short circuit procedure by approaching the CPIO, SC of India remitting the fee of Rs.lO payable to one authority and getting it referred to all the Public Authorities at the expense of one CPIO. In view of this, the relief sought by you cannot be appreciated and is against the spirit of S. 6(3) of the RTI Act, 2005.

You may, if so advised, approach the concerned Public Authorities for desired information.”

When the second appeal came before the Central Information Commission, it decided to constitute full bench of the Commission and heard the matter. Both the parties were represented by senior advocates, the appellant by Shri Prashant Bhushan and another and the SC by Shri Amarendra Sharan, additional Solicitor General and another. Arguments of both the sides are as under:

Learned counsel appearing on behalf of the Supreme Court of India submitted that the RTI application had two parts, the first part related to copy of Resolution, which has already been provided to the appellant, and the 2nd part relates to declaration of assets by the Supreme Court Judges. CPIO submitted that the Registrar of the Supreme Court does not hold the information. The learned counsel submitted that the Resolution passed by the Judges is an inhouse mechanism. The declaration regarding assets of the Judges is only voluntary. The resolution itself describes submission of such declarations as ‘confidential’. It was also submitted that any disclosure of these declarations would be breach of fiduciary relationship. The learned counsel also submitted that the declarations are submitted to the Chief Justice of India not in his official capacity but in his personal capacity and that any disclosure will be violative of the Resolution of the Hon’ble Judges which seeks to make these declarations ‘confidential’. It was also contended that the disclosure will also be contrary to the provisions of S. 8(1)(e) of the Right to Information Act.

Learned counsel appearing for the appellant submitted that the declaration of assets by the Judges is ‘information’ within the meaning of S. 2(f) of the RTI Act and the same is held by the Supreme Court, which is therefore accessible within the meaning of S. 2(h) of the Act. If the Registrar of the Supreme Court states that the information is not held by them but held by Chief Justice of India, then the Chief Justice of India is a separate Public Authority independent and distinct from the Supreme Court of India. The Commission, therefore, has to decide as to whether the Supreme Court of India and the Chief Justice of India are part of the same Public Authority or the CJI constituted a separate and independent Public Authority. If the two are different and distinct Public Authorities then the CPIO should have transferred the RTI application to the Chief Justice of India under S. 6(3) of the Right to Information Act. He also argued that the information held either by the Supreme Court or by the Chief Justice of India cannot be denied to a citizen seeking the same under the provisions of the Right to Information Act.

Based on the above, the Full Bench consisting of IC A. N. Tiwari, IC Prof. M. M. Ansari and Chief IC-Wajahat Habibullah decided as under:

The Supreme Court of India is an institution created by the Constitution and is, therefore, a Public Authority within the meaning of S. 2(h) of the Right to Information Act.

The status and position of the Chief Justice of India is unique under the RTI Act. The Chief Justice of India is also designated as ‘Competent Authority’ u/s.2(e) of the Right to Information Act.

The Chief Justice of India in case of Supreme Court of India and the Chief Justice of High Court in case of High Court are also thus designated as ‘Competent Authority’ within the meaning of S. 2(e) of the RTI Act and S. 28 of the Right to Information Act empowers them to frame Rules to carry out provisions of Right to Information Act.

It may further be mentioned that while the Rules ” made by the Central Government u/ s.27 are required to be laid before each House of Parliament and the Rules made by the State Governments are required to be laid before each House of Legislature, there is no such requirement in respect of the Rules framed by the Chief Justice of India in case of Supreme Court and Chief Justice of a High Court in case of a High Court u/ s.28 of Right to Information Act.

The rule-making power has been explicitly given for the purpose of carrying out the provisions of the RTI Act. The Act, therefore, empowers the Supreme Court and the other competent authorities under the Act and entrusts upon them an additional responsibility of ensuring that the RTIAct is implemented in letter and spirit. In view of this, the contention of the respondent Public Authority that the provisions of Right to Information Act are not applicable in case of Supreme Court cannot be accepted.

After deciding the above, the Commission went on to decide whether the Chief Justice of India and the Supreme Court of India are two distinct Public Authorities or one Public Authority.

In the order, it records as under:

If the provisions of Article 124 of the Constitution are read in view of the above perspective, it would be clear that the Supreme Court of India, consisting of the Chief Justice of India and such number of Judges as the Parliament may by law prescribe, is an institution or authority of which the Hon’ble Chief Justice of India is the Head. The institution and its Head cannot be two distinct Public Authorities. They are one and the same. Information, therefore, available with the Chief Justice of India must be deemed to be available with the Supreme Court of India. The Registrar of the Supreme Court of India, which is only a part of the Supreme Court, cannot be categorised as a Public Authority, independent and distinct from the Supreme Court itself.

In view of this, the question of transferring an application u/ s.6(3)of the Right to Information Act by the CPIO of the Supreme Court cannot arise. It is the duty of the CPIO to obtain the information that is held by or available with the Public Authority. Each of the sections or department of a Public Authority cannot be treated as a separate or distinct Public Authority. If any information is available with one section or the department, it shall be deemed to be available with the Public Authority as one single entity. The CPIO cannot take a view contrary to this.

It may be noted that the information sought in this case was very limited, the applicant was not seeking a copy of the declarations or the contents therein or even the names, etc. of the judges filing the declaration, nor is he requesting inspection of any such declaration already filed. He is seeking simple information as to whether any such declaration of assets, etc. has ever been filed by the Judges of the Supreme Court or High Courts. The Commission held that what he was seeking cannot be held to attract exemption under clauses (e) or G) of S. 8(1).

Finally, the Commission held as under:

In view of what has been observed above, the CPIO of the Supreme Court is directed to provide the information asked for by the appellant in his RTI application as to whether such declaration of assets, etc. has been filed by the Hon’ble Judges of the Supreme Court or not within ten working days from the date of receipt of this Decision Notice.

[Shri Subhash Chandra Agrawal v. Supreme Court of India, Appeal No. CIC/WB/ A/2008/00426 de-cided on 6-1-2009]

It is reported that SC has moved the High Court over the above order. It is the unusual situation when the Apex Court approaches a lower Court. However, as the decision of CICs can be challenged only in a High Court, such unusual situation is created. It is also reported that the Delhi High Court has stayed an order of Central Information Commission. It is also interesting to note that Justice S. Ravindra Bhat has appointed noted jurist FaH Nariman as the amicus curiae to assist the Court and has fixed February 12 as the date of hearing.

It is further reported in the media:

In his communication to the HC, Nariman said, “1 must regretfullydecline the honour since I have very decided views on the matter”.

Nariman made it clear to the HC that he would not be able to maintain neutrality expected of amicus curiae in the matter.

Interestingly, in his letter to the newspaper titled ‘Chuck it, My Lords’. Nariman recalled his visit to the US when he had come across a US law that mandated each SC Judge not only to make public his assets each year but also about each gift which was worth more than $ 50.

(Full copy of this very interesting and landmark order of the Commission is being posted on www.bcasonline.org for those interested to read the full order.)

Part B : The RTI Act

Standing Committee of the Parliament on RTI Act, 2005 :

National Campaign for People’s Right to Information (NCPRI) has made a presentation before the above committee. Some of the items of the said presentation are worth noting to understand present deficiencies of the RTI Act. I shall reproduce them in this column in 3 parts, starting from this issue:

Level of awareness:

Our study suggests that the level of awareness about the RTI Act is very poor, especially in the rural areas. The Department of Personnel and Training, Government of India seems to have done very little to raise awareness about the Act. Much more needs to be done, especially by roping in the television channels, the print media, the All India Radio, and various NGOs.

Spreading awareness amongst the illiterate radio and television programmes are particularly important for this, as are awareness programmes run by NGOs. Workers of political parties can also spread awareness and facilitate use. In any case, there should be one or two nodal people in each village, perhaps the schoolteacher or the health worker,who have received some training, have some material, and are willing and able to help the rural people, especially the illiterate, to access information.

Another mechanism for spreading awareness of RTI among illiterate segments of the population is through social audits Social audits areincreasingly happening in various states around the NREGA, and attracting a large number of rural people, many of whom are illiterate wage-labourers wanting to get their rights under NREGA. In fact, the NREGA guidelines go beyond the RTI Act by stipulating provision of information to applicants within 7 days, rather than the 30 days stipulated under the RTI. RTI principles can therefore be incorporated as mandatory requirements in various other schemes and this would help even the illiterate to understand and exercise their right to information. The Planning Commission could be requested to mandate this in all central and centrally-sponsored schemes and to provide the resources for training and other requirements to make this implementable.

Use and misuse of the RTI Act:

Our study suggests, by extrapolation, that from October 2005 until October 2008, nearly five lakh RTI applications have been filed in rural areas. The number in urban areas is perhaps double this. Delhi itself has nearly eighty thousand applications filed in the last three years.

Despite an extensive survey, no evidence has emerged on the misuse of the RTI Act. There are instances where RTI applications are vague or requisition vast amounts of information; however, these are adequately covered under the law. In fact, it is not clear how the RTI Act can be misused for it only gives access to the truth and how can the truth be misused?

There are two types of apprehensions, one that officers will be blackmailed and the other that they will be harassed because of too many applications. As far as the first apprehension goes, you can only be blackmailed if you have done something wrong. Therefore, rather than demanding that information should not be shared because wrong acts have been committed, it would be better to stop doing wrong things because information will be shared.

Besides, one way of preventing the use of information accessed through the RTI Act to blackmail officials is to put up copy of the application and of the response on the website (except in those few cases where privacy is involved). Once this information is in the public domain, there would be no scope of blackmail.

Few departments receive a large number of applications. Our survey looked at over three hundred departments across the country and at differing levels. The data that emerges suggests that in almost all these departments, a public information officer does not spend more than one or two hours a week (average of between 12 and 24 minutes per working day) on RTI related work.

In any case, even those few public authorities where there is greater pressure, the department can make things much easier for itself if it periodically assesses the type of information the citizens want, and put this suo moto in the public domain, as required u/ s.4 of the RTI Act.

Part C : Other News

Delay in disposal of appeals in Maharashtra State Information Commission:
Dr. Suresh Joshi has replied 3 questions asked by DNA Journalist after some of us RTI activists met him on 30-12-2008.

Q. Activists feel the RTI Act is losing its relevance they say there are pending cases as old as 2006. What is the value of getting information three years after it was asked for ?

Ans. : That is not the case. Hearings are on and Maharashtra is one of the States that get maximum applications. The problem is of shortage of staff. There was a backlog earlier when we started, as I was the only Commissioner. Last year, people had to wait a year and a’ half for the hearing; now, Commissioners are clearing around 1,400 cases each month.

Q. Does a sympathetic approach towards PIOs mean citizens are cited as flaws, negating the relevance of the RTI Act?

Ans. : That’s not true. There are 300 cases of penalties on PIOs till November 2008, with Rs.21 lakhs collected in fines. This average comes to Rs.6,000 to 7,000. If the case is genuine, we fine up to Rs.25,000, or we give them a chance to give information. We fine people when we see an obvious case where they are violating the Act.

Q. Activists say your argument of less staff is a false, deviating attention from the slow processing of cases. They say that in order to shield erring officials who should be fined, offers of help are not taken up.

Ans. : People have helped us out. Some have even worked with us, but they 0.0 not understand that we need to go through all the files. The way they tell us and the format they make does not work out.

RTI query on online lotteries:

In reply to the RTI query filed by the Maharashtra Rajya Lottery Association President, Nanasaheb Kute-Patil, the State Lottery Department said that there is no Central Government law for single-digit lotteries, commonly known as online lotteries.

Noise pollution:

Tired of noise pollution from the playground opposite his home, Kandivli (West) resident Lennon Miranda used the RTI to find out why the play-ground is being used to organise massive functions and fairs without BMC permission.

After receiving RTI application, BMC first put up a board at one end of the ground stating, “it is in the possession of the BMC”, but some days thereafter washed its hands off the property and says that the ground does not belong to the BMC and is a private property.

Assistant engineer Marathe of the Buildings and Factories Department of the ward seconds the above claim, and says that copies of the RTI reply saying the BMC has not given any permission have been sent to the police stations for further action.

Building plans:

The Civic Administration (BMC) has decided that it will not give out prints of the layout to anyone under the RTI Act.

Kishore Gajbhiye, Additional Municipal Commissioner, said it was feared that the information may be misused by terrorists, “It is a classified document and will not be made available.”

But, civic observers say the terrorist attack is being used by the BMC’s Building Proposal Department to block information. It cannot be a confidential document unless it comes under the Exemption clause of the RTI Act. The civic body’s HQ is not a defence installation, nor does the information affect the security of the country.

BCAJ Admin

Right To Information

r2i

Part A : Decisions of CIC and SIC

Concept of privacy
vis-à-vis the public servant :

As reported in BCAJ of October 2008, 4 more Information
Commissioners have been appointed at the Central Information Commission, one of
them being the RTI Activist from Mumbai, Shailesh Gandhi. In the very first
month of performing as CIC, he has discharged his duties well. He has disposed
of 142 appeals, has issued show-cause notice for imposing penalty in 32 matters
and has levied penalty of Rs. 7,500 in one case. Hereunder, is a brief report on
one of the 142 appeals decided by Shailesh Gandhi :

Mrs. Shruti Singh Chauhan had sought information from
Additional Secretary (Home), Government of NCT of Delhi about prosecution of
certain officers during the period 1-1-2000 to 30-4-2007.

PIO replied that information relates to personal information,
the disclosure of which has no relationship to any public activity or interest
and it would cause unwarranted invasion of privacy of the individuals. First AA
dismissed the appeal “on grounds of non-merit of the case, as the information
sought for is voluminous, sensitive and does not serve any public interest.”

CIC held : Firstly, if charges have been investigated and
found to have been substantiated, leading to asking for a sanction for
prosecution, this information cannot be considered as relating to the privacy of
an individual. Acts of public servants, where there is a reasonable ground to
believe wrongdoing, cannot be a private matter of a public servant. It has been
well accepted that the charges against public servants must also be disclosed to
the people. It has also been held that Members of Parliament and other
representative bodies must themselves declare charges against themselves on
oath, even when they stand for an election. Given this background, a claim that
disclosing names of those against whom sanction for prosecution has been sought
is an invasion of privacy and has no public interest, is completely erroneous.
In any case, as soon as prosecution is launched, the names and identities of
those being prosecuted would be in the public domain.

Based on the above view, CIC allowed the appeal and ruled :
“The Commission disapproves of the practice of PIOs using the exemptions of S.
8(1) without providing reasoning. The Commission is likely to view such practice
as a denial of information without reasonable cause and take consequent actions
as per the law. This time however, we feel the ends of justice will be met by
directing the Public Authority to be more diligent when using the exemption
clause. The PIO will give the information to the appellant by 10th November
under intimation to the Commission.

[In the matter of Mrs. Shruti Singh Chauhan : Decision No.
CIC/WB/A/2007/01096/SG/0080, decided on 16-10-2008]

Civil work relating to open pit in Mulund (W), Mumbai :

An interesting decision is given by Chief SIC, Maharashtra,
Dr. S. V. Joshi on 10-11-2008.

Shri S. K. Nangia filed a complaint application u/s.18 of the
RTI Act on 9-9-2008. His original application sought information from MMRDA
about details of civil work relating to an open pit in Mulund (W) which caused
an accident of a car falling in a pit on account of the same being left open and
unfenced. In reply, the PIO advised the applicant to seek this information from
police station. In response to the first appeal on PIO’s reply, the AA directed
the PIO to provide the information sought. However, it was still not furnished.
Shri Nangia then filed a complaint with the Commission. SCIC held :

Firstly, it was totally wrong on the part of the PIO to
direct applicant to seek information from the concerned police station. In this
case, information was really with MMRDA, but even if it was with police station,
it was the responsibility of the PIO to send that application to the police
station asking them to provide information directly to the applicant. This is
considered to be serious lapse on the part of PIO.

The applicant’s application is to get information about who
were in charge of work. Police has already registered the offence and judicial
verdict will come in due course. It is pertinent to note that applicant is not
asking who is responsible for this mishap. He is merely asking the names of
officers who were entrusted with overseeing and supervision. This information if
already not given to the applicant be given in 5 days time on the receipt of
this order.

Lastly, applicant has stated that he has spent time, effort
and money for filing an appeal with AA, filing fresh application with police and
making payment of charges to the Police Department for information which all
could have been avoided had the PIO provided correct and complete information
for which he demanded a token compensation of Rs.100. The Commission appreciates
the concern of the applicant that he wants to stress the point of accountability
and is really not interested in financial reimbursement. He ordered that this
amount should be given to the applicant by MMRDA by recovering it from the PIO.

In short, the PIO has to pay penalty for the delay of 38 days
i.e., Rs.250 * 38 of Rs.9,500. This be recovered from his salary in two
instalments and deposited as per the Government’s procedure. The copy of
challans having paid this amount be sent to the Commission for record.

[Shri S. K. Nangia, Mumbai v. PIO, MMRDA : Complaint
No. 2008/622/02, decided on 10-11-2008]

Part B : The RTI Act

Challenges of Change

When we are no longer able to change a situation,

we are challenged to change ourselves.

— Viktor Frankl

This year is the diamond jubilee year of glorious services of
BCAS. Theme of the Diamond Jubilee Conference held on 8th November was :
Challenges of Change — Always ahead.

BCAS has always been ahead in its services to the profession, to its members and other CAs, CA students and society at large : the view endorsed by all speakers at this above conference.

However, at times I think that to be ahead holistically and in real terms, BCAS cannot be a bystander to just watch the changes that have been happening on the national scene and challenges that are being faced by concerned citizens. BCAS and its members can’t limit solving only challenges of change to the professional areas. On that yardstick, I believe that to be ahead, it has to gear itself much more proactively to the challenges of change that the nation faces.

The Right to Information Act has brought in changes which have challenged the sleeping and non-inclusive minds et built up in the governance of this country. Frankly, citizens have also remained passive and maintained a lackadaisical attitude and in keeping with the Indian psyche, have remained tolerant to all injustice, corruption, non-accountability, etc.

There are many stakeholders in the implementation of the RTIAct. They include: (1) Public Authorities and PIOs & AAs (information providers) (2) Information Commissions, States and Central (3) Central and State Governments (4) Indian Citizens (both urban & rural) (Information seekers) (5) Media (6) Activists’ groups, NGOs, CBOs, etc. (7) Competent authorities such as the Courts, the House of the people, etc.

The RTI Act has heralded citizens’ rights to be recognised, has operationalised the fundamental right of the citizen guaranteed under Article 19 of the Constitution of India and has empowered citizens to be part of democratic operation of the country. The Act has thrown a challenge to all stakeholders to get tuned to changes in the governance brought in by this revolutionary and extremely powerful Act, the likes of which India has never witnessed before. Prime Minister, Dr. Manmohan Singh, while inaugurating 3rd Annual Convention of the Central Information Commission on 3rd November talked on various challenges of change brought about by the RTI Act. He said:

There will be a major challenge for public authorities in the arena of information house-keeping. There is a challenge for the information seekers in not misusing the right available in the Act by making vexatious demands and thus deprive genuine information seekers of their legitimate claims on limited public resources and so on.

Mahatma Gandhi had once said: Political freedom has no meaning unless it leads to win economic, social and moral freedom. The Right to Information Act and National Rural Employment Guarantee Act (NREGA) are two acts which are tools to bring social and economic freedom respectively, which would then lead to moral freedom.

Weprofessionals, educated and intellectuals are the major stakeholders for the success of these two Acts. As Barack Obama, the President-elect of the USA said “So tonight, let us ask ourselves – if our children should live to see the next century, what change will they see? What progress will we have made? This is our chance to answer that call. This is our moment. This is our time …. “

We professionals need to raise the same questions to ourselves: How are we going to shoulder challenges of sweeping changes happening on the national scene on account of implementation of these two Acts: RTIand NREGA. Are we going to just witness sea change in the lives of millions of citizens with the operation of those two instruments legislated by the Government of India or be a part of the makers of this change, partners in advancing its benefits to really go ahead? I hope that in coming years BCASFoundation and BCASmembers becomepart of this movement of change and go ahead in bringing new standards of transparency and accountability, bringing positive change that shall give hope for better INDIA, happier inclusive society,so essential for experiencing the value of democracy.

Part C : Other News

• Landlease of Gujarat farmers:

The farmers in Gujarat are moving RTIapplications to the State Government seeking documents related to land ownership. Armed with archaic documents prepared during the British Raj and written in rich Gujarati prevalent during the rule of the Gaikwads, farmers are approaching the State Government with a hope. The farmers are optimistic that the land leased to the then Bombay Province by their fore-fathers in 1912,for 99 years would be returned to them. The State Government, however, is unper-turbed and says the British did compensate the farmers for the land, and that there is no question of the situation taking a Singur-like turn.

Not prepared to wait until the lease period gets over in 2011, the farmers became active with RTI applications ever since they learnt that the State has allotted 1,100acres of land to the Tatas. However, they clarify that they are neither against Nano, nor are they creating a noise because of its arrival. “Documents in our possession are older than Tata Group’s presence in Gujarat. We are not trying to ride the wave and earn an extra buck. We are just seeking our land back, once the lease period is over.”

• RTI Activist Chetan Kothari :

Mr. Chetan Kothari writes in Sunday MID DAYof October 12, 2008: “I was duped to the tune of Rs. 11 lakh that I invested in plantation and holiday packages of Suman Motels Limited in the late 90s. I used RTI to get information about the company,so that I could pursue my case in the Court.” The two RTI applications revealed that despite 200warrants and summons issued in the name of the MD of the company, none of them were executed. This made his case strong as he was representing 600 people who were duped similarly.

Mr. Kothari believes that information is a tool which when used in a positive way can bring about a revolution and zeroing in on subjects requires a lot of reading and general awareness.

• Documentaries on RTI :

The awareness about the RTI Act, 2005 is slowly catching up in the country. Helping this cause is a small tribe of documentary makers, who through the visual medium are trying to make people aware of RTI’s power.

Documentary-filmmaker Priyanka Tiwari, who works for a Delhi-based NGO Kabir that works on RTI,has made 15 short films in the last two years. She says apart from creating awareness, they also portray success stories. (Some of these CDs are available at BCAS Library.)

Satish Shinde from Films Division claims to have made the first feature film on RTI. “The challenge was how to make the act visually appealing,” recalls Shinde. The film has also been dubbed in 12 languages. Like NGO,Kabir, Shinde’s film is also widely used by NGOs. He feels that, generally, the RTI awareness has risen by 30 to 40%.

• BMC becoming Pro-RTI:

Getting information under the RTIAct will soon be just a click away. In a month’s time, citizens will be able to file their RTI application on the website of Brihanmumbai Municipal Corporation.

According to BMC officials, the process will be centralised and the applications will be forwarded to the civic body’s concerned departments. The payments can be made in the same way as property taxes are paid. The website will allow people to post their address, so that they can be provided with the necessary documents.

• Refund for delayed courier charges:

What if an important document couriered to you through the postal services reached you after a day’s delay? You would have either cursed the system or may not even have noticed it as most courier parcels hardly reach their destinations on time. But Dadar resident Milind Mulay decided not to take it lying down. Mulay used the Right to Information (RTI) Act to get a refund when two articles he had sent through speed post reached their destination after a day’s delay. He had sent two couriers to Thane and Kalyan from the Shivaji Park post office at Dadar.

He first did some leg-work and found out from the website of the Indian Postal Service about the rules and regulations in case of delay. The web site also has an option by which one can track the path of the courier. But the web site had not updated the path of his courier. So he went to the post office’s west division headquarters and asked them to give a copy of the delivery slips. The receipts showed that the parcels were not delivered on time. Mulay then wrote a letter to the post office asking for compensation for the delay. The officials at the post office did not bother to answer his letter, he then filed an RTI application.

The senior superintendent of the Mumbai city west division responded within 10 days and refunded the entire amount Rs.50 for the delay. He also said this was in accordance with the money-back guarantee scheme. The delay occurred due to a service fault and a detailed report has been sought from the respective section.

Mulay said he was prompted to file an RTI query as numerous people in the country faced this problem. More than the financial part, he wanted to show that the RTI Act can be put to everyday use and cut the red tape in the Government.

BCAJ Admin

Right to Information

New Page 3

Part A : CIC’s decisions

Public Notaries

Mr. Dhiresh Shah, advocate and notary of Ahmedabad made an
application-appeal to the Central Information Commission in connection with the
processing of the applications of Public Notaries for the renewal of their
licences issued by the Department of Legal Affairs.

During the hearing of the appeal, Mr. Shah pointed out that
there were gross and avoidable delays in renewing the licences of Notaries,
which not only frequently resulted in breaks in their service as Public
Notaries, but also caused them financial hardship and mental worry, and in some
cases, even loss of reputation. He pointed out that the main purpose of his
coming before the Commission was to ensure that a transparent and accountable
system was kept in place, so that not only the renewal applications of Public
Notaries were attended to with speed, but also there was certain accountability
about timely renewal of these licences.

CPIO, Implementation Cell, Department of Legal Affairs,
Ministry of Law and Justice, New Delhi submitted that the information as
requested by the appellant was not centrally maintained. As such, it was beyond
their power to collect and collate it in order to supply it to the appellant.

Upon hearing the parties, the impression the Commission got
was that the respondents were aware of the shortcomings in the system of renewal
of licences of Public Notaries, which caused unexplained and avoidable delays in
effecting these renewals. There was no centralised monitoring of receipt of
renewal applications, their processing and issue of renewal certificates.

The Commission felt that this is one system which was crying
out for reform. The Commission recommended to the public authority — the
Department of Legal Affairs — to institute a system of centralised monitoring of
receipt, processing and final approval of all applications received from Public
Notaries for renewal of their licences. This information should be placed on the
website in order to enable those whose interest it touched to keep themselves
informed about the progress of their renewal applications. Since the number of
such applications in a year is not more than 500 to 600, there is no reason why
centralised monitoring for it could not be put in place. The effort on the part
of the public authority should be to renew the licences well before the expiry
of the time for which the licences were initially issued. This system will not
only save Public Notaries a good deal of anxiety and botheration, it will help
bring to the system much needed accountability and transparency.

Based on the above, CIC directed the head of the public
authority, viz. Secretary, Department of Legal Affairs, to apprise the
Commission within two months of the receipt of the order as to the action taken
by it in respect of the above recommendation of the Commission [S. 19(8)(a) of
RTI Act].

In the course of the hearing, Mr. Shah also pointed out that
the public authority was required to publish in an Official Gazette all
notary-related information which included the issue of notary licences and their
renewals. This has not been done for the past several years.

The Commission also directed that a notice be issued to the
head of the public authority as to why a compensation of Rs.15,000 (Rupees
fifteen thousand only) not be awarded to the appellant for the detriment
suffered by him.

However, Mr. Shah pointed out that he was not interested in
either imposition of a fine or penalty on the respondents, nor was he interested
in compensation. What he actually wanted was that the system must be so improved
as to free it from its several shortcomings which affected a broad cross-section
of Public Notaries. The Commission appreciated the appellant’s position.

We also appreciate Mr. Dhiresh Shah’s spirit.

[No. CIC/AT/A/2007/01451 of 22-4-2008 : Shri Dhiresh
Shah v. Department of Legal Affairs, Ministry of Law and Justice, New Delhi]

Travel cost of RTI applicant :

This is the case of complaint by Mr. Yogesh Mehta of Mumbai (BCAS
Foundation assists him in his fights from time to time) requesting for penalty
[S. 20(1)] on SEBI and compensation from SEBI [S. 19(8)(b)].

In one RTI application received by SEBI on 6-2-2006,
information was furnished on 14-7-2006. In the other RTI application received by
SEBI on 13-2-2006, information was furnished on 29-9-2006.

The Order of CIC is as under :

The main contention of the respondents (SEBI) is that delay on their part was not intentional and occurred as the requested information was not readily available with SEBI and has to be obtained from BSE. They have emphasised the fact that, as acknowledged by appellant, all information has been provided to him. The respondents have maintained that the information requested by the appellant/complainant, Mr. Yogesh Mehta pertained to several transactions and agencies, collecting and collating the same naturally took time. They have urged that the delays were not without reasonable cause.

On perusing the records and hearing the submissions of both parties, it is decided that no penalty need by imposed on the respondents, because the delay that has occurred in providing the information to the complainant is attributable to the complex nature of the information request

On perusing the records and hearing the sub-missions of both parties, it is decided that no penalty need by imposed on the respondents, because the delay that has occurred in providing the information to the complainant is attributable to the complex nature of the information requested, which needed time-consuming collection and collation process, which brings it within the ambit of ‘reasonable cause’ u/s.20(1) of the RTI Act.

However, the Commission cannot be oblivious to the fact that the delays in this matter have resulted in detriment to the complainant and has impacted the complainant’s rightful claim to timely information under the RTI Act. He has been compelled to attend CIC hearings on several dates at his own cost for pressing his complaints against the respondents. He has suffered avoidable expenditure in doing so. It is, therefore held that the complainant is entitled to a suitable compensation under Section 19(8)(b) of the RTI Act.

In view of the above, it is directed that the public authority, viz. SEBI shall pay an amount of Rs. 10,000 (Rupees Ten Thousand only) as compensation to the complainant within 2 weeks from the date of receipt of this order and intimate the fact of payment to the Commission within 1 week of effecting it. The compensation amount may be paid from the resources of the public authority, viz. SEBI.

[No. ClC/ AT/ A/2006/00591 & 00592 of 26-6-2008 : Mr. Yogesh Mehta v. SEBI]

Income-tax records of a Charitable Trust:
A very significant issue of the concept of personal information vis-a-vis public charitable trust is involved in this case. Mr. J. K. Sachdeva sought information from Directorate General of Income-tax (Exemptions) of one NGO, the Institute of Business Studies and Research, Belapur, Navi Mumbai.

He sought the following information:

a) Have the trustees filed income-tax returns fo;: years 2004-05 and 2005-06 ?

b) If yes, how much income-tax they have paid for the trust? Copies of the audited statements be provided to me.

c) Has all the expenditure incurred by them been for charitable purpose?

d) How much salaries either in cash or in kind/ movable properties been drawn by the trustees?

e) Have they accounted for all the cash amount received as advanced premium from the students?

f) Have they submitted to the department the purchase agreements of all the properties bought in personal name or in the name of trustees? If yes, copies may be provided to me please.

Information was provided for (a) above, but PIa declined to disclose the rest citing exemption u/ s. 8(1)0) read with S. 11(1) of the RTI Act and on re-lying on number of CIC’s decisions in similar cases.

The Commission, however, noted that this appeal is different from other petitions regarding access to income-tax-return-related information, in the sense that the present appeal is about information regarding a public charitable trust. Given the character of a public charitable trust, it is important to decide whether the income-tax-related information of such trust, when all of its activities are open to public scrutiny, at all be allowed to remain confidential. In other words, whether or not to disclose such information will have to be examined in the context of the Indian Trusts Act, 1882 and whether there could be a public interest in disclosure of such information u/s.8(2) of the RTI Act. Applying S. 8(1)(j), which speaks about personal and private information, to a public charitable trust also needs to be closely examined.

The Commission then felt that these matters should be first seen at the level of the public authority (Appellate Authority) given the public authority’s experience in similar matters. Income Tax Commissioners enjoy the power, u/ s.138(b) of the Income-tax Act, to decide whether confidentially held information, such as certain classes of income-tax returns, be disclosed in public interest. A determination regarding whether to disclose in public interest income-tax returns of public charitable trust, is thus quite in order.

In view of the above, the Commission remitted back the matter to the Appellate Authority (AA), Mr. Laxman Das, Director General of Income Tax (Exemptions), with a direction that he shall give a earing to the parties, including the third-party, and take a decision in this matter within 4 weeks from the date of receipt of this Order.

We shall follow up this case with interest as to what is the final decision in the matter (hopefully shall report in BCAJ next issue).

[No. CIC/ AT/ A/2008/00170 of 30-6-2008: Mr. J. K. Sachdeva v. Directorate of Income-tax (Exemptions)]

Part B : The RTI Act

I am of the opinion that S. 4 of the RTI Act, which provides for ‘Obligations of public authorities’, is the most important Section of the Act to achieve its objectives. To enable the public authorities to comply and carry out these obligations effectively, the Act which received the assent of the President of India on 15-6-2005, vide S. 1(3) read with S. 4(1)(b) provided that every public authority shall publish within one hundred and twenty days (i.e., 12-10-2005) from the enactment of this Act (i.e., 15-6-2005) 17 different items of information.

It is the experience of all that many public authorities even more than 32 months after 12-10-2005 have not complied with these obligations.

Conference was held of all CICs and SICs on 17-10-2007. One of the topics of the discussion was:

“Enforcement of S. 4 of the RTI Act and creation of ‘E-Districts”‘. Some of the major recommendations (9 out of 17) of the conference are hereunder listed:

1. The duty of the Government is to pro-actively make available key information to all. The Public Authorities to 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.

2. It is suggested that strict directions be issued by the Central Government, that all the State Governments/Public Authorities should fulfil their obligations laid down u/ sA of the RTIAct, 2005. Failing which, it may lead to penal provisions being invoked against such Public Authority. Secretary of the Department may be held responsible in this regard and be clearly held culpable in case of non-compliance of S. 4(1)(b).

3. The Central and State Governments must necessarily make adequate fiscal allocations for computerisation and connectivity from Information Commission level to Mandal/Taluk level Public Authorities, so as to effectively operationalise the provisions of the RTI Act.

4. Standardisation of procedure is a must for the disclosures mandated u/ sA of the Act.

5. Make all Government services accessible to the common man in his locality, through common service delivery outlets and ensure efficiency, transparency and reliability of such services at affordable costs to realise the basic needs of the common man.

6. Citizen-centric approach to delivery of selected (bulk) services through Common Service Centres (CSC) involving back-office enablement, by way of digitisation of relevant records, process redesign and automation of processes/work-flow.

7. Notification of e-District services u/sA(l) of the Act to enable and legally enforce sharing of information as prescribed, electronically.

8. e-District to act as an enabler for facilitating objectives/services relating to RTI being achieved/ delivered. RTI’s legal framework to be leveraged by e-District to make information sharing/ e-services irreversible.

9. Need/feasibility of notifying CSCs as APIOs under the Act.

Part C : Other News

• Personal Information:

Residential phone number, mobile number and e-mail fall under the category of personal information. This was decided by the Information Commission in response to the RTI application seeking such details for the President of India.

• PIO provides false information:

PIO of the Brihanmumbai Municipal Corporation (BMC) replied in response to an RTI query that BMC has already written to SSC Board when asked as to what BMC is doing to make instructions in Tamil medium possible up to class X, which presently is only up to class VII in select BMC schools. Fact is that such letter was not written and was written a few days after such a query was raised. Interesting point is that when BMC Commissioner Jairaj Phatak was informed on this issue, he said: “There must have been some technical error. What they would have meant is that the letter was in the process of being drafted.”

• Cabinet documents:

Mr. Suresh Joshi, SIC, Maharashtra holds the view that u/s.8(1)(i) of the RTI Act, all the documents brought before the State Cabinet are confidential and there is no access to such documents under the RTI. The senior official in the Secretariat also says “Once decisions are taken, we will issue specific orders. However, applicants are asking for the cabinet note, which contains stringent remarks on all the departments. In our opinion, such documents should not be made public.”

However, it is the view of the Central Information Commission that all file notings are available for access in the RTI. Further, S. 8(1)(i) which provides for exemption also has proviso thereto restricting the exemption. Clause with two provisos is as under:

8(1)(i): Cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers:

Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over:

Provided further that those matters which come under the exemptions specified in this Section shall not be disclosed.

• Information on FIls under the RTI Act:

Acting on an RTI appeal over SEBI’s denial to divulge details on yearly net investment figures by each FII during 2005, 2006 and 2007, the apex information panel has asked SEBI to consult other stake-holders like the Finance Ministry, the RBI and over 800 FII and decide on the matter afresh. SEBI has to take a call on this matter within two months.

While issuing the order, Information Commissioner, A. N. Tiwari said: “SEBI would examine the matter closely in terms of extant practices/instructions, consult all or a section of stakeholders, examine international practices and obtain views of top functionaries in the field and the Government, before formulating a response.”

Even as the Commission had brought stock exchanges under the RTI last year, the Bombay Stock Exchange and the National Stock Exchange havo challenged it before the Courts. Ironically, in that case the SEBI stood against the Finance Ministry to argue that bourses should be brought under the transparency law.

Air-travel on Air India of high-profile passengers:
Air India has requested the Government to exempt travel information on high-profile passengers -like politicians, businessman and film stars – from being divulged under the Right to Information (RTI) Act as it would hamper its business interests.

In the request made, it is stated: Aviation is a competitive industry and only Air India is covered under the RTI. We will lose out on business interests if we give out details.

Air India is also troubled with a recent query by a TV channel on how Judges were holidaying at public expense, which class the Judge (and his wife) travelled. According to some report, “The Chief Justice of India, K. V. Balkrishnan, made seven tripss abroad in 2007 travelling first class with his wife at Rs.39 lakh (air fare) – something that no other airline would ever divulge.”

BCAJ Admin

Right to Information

Part A : Decisions of CIC

S. 27 and S. 28 r.w. S. 2(e) of the RTI Act :

Issue before the M.P. High Court was whether any public authority can make its own rules and prescribe thereby the fees to be paid for issue of information and copies of documents, etc.

Cantonment Board, Jabalpur (CBJ) passed the resolution and prescribed the fees to be paid under the RTI Act. Under it, fees prescribed were Rs.50 per page of A4 size (against Rs.2 as prescribed in the Central Government RTI rules).

The appellant was asked to deposit Rs.650 towards cost of providing information sought. He accordingly filed a writ. Before the Court, CBJ contended : “The Cantonment Board, Jabalpur has determined the schedule of fees looking to the schedule adopted by the M.P. Government and the Hon’ble High Court of M.P. The Cantonment Board, Jabalpur had done so as the expenses incurred in issuing copies and information were much higher than the fees being paid by the applicants seeking information. The Cantonment Board, Jabalpur being a local body akin to the Municipal Corporation adopted the schedule of fees existing for the Municipal Corporation in the State of M.P”.

Further, it was contended that the information is sought at times from various old records more than 50 years old. It requires involvement of staff which is already short. Considering these and various other aspects, reasonable cost for providing information has been prescribed vide Resolution No. 37, dated 20-12-2005, which is within the powers of the Cantonment Board, Jabalpur being municipal body. It has been mentioned specifically that the High Court has fixed minimum fees of Rs.50 per application in case of general application and Rs.500 in case of information related to tenders, documents, bids, business regulations and the actual cost of medium or printing cost price in case of other documents vide No. 15-R(J), dated 10-1-2006, copy of which is on records as Annexure R/2. However, during pendency of the writ petition, the Cantonment Board, Jabalpur acceded to the request of various sections of people and withdrew Resolution No. 37, dated 20-12-2005 vide Resolution No. 6, dated 13-9-2007. Accordingly, it is contended that the petition has been rendered infructuous.

The Court noted that although the resolution in question has already been withdrawn, in view of the stand taken by the respondents that the Resolution No. 37 was rightly passed and further in view of the relief for refund of costs it is thought proper to decide the issue raised herein.

It has been contended by the respondents that the Cantonment Board is a local body like Municipal Council and is well competent to make the rules regarding fees and costs as made by the Court. Suffice to say that the Chief Justice of the High Court is a competent authority within the ambit of definition as contained in S. 2(e) of the Act and therefore, by virtue of S. 28 it has powers to make rules with regard to fees and cost in exercise of powers under S. 28 of the Act. The Cantonment Board, Jabalpur being outside the purview of the term ‘Competent Authority’ within the meaning of S. 2(e) of the Act is not competent like the Chief Justice of High Court to make rules. In this view of the matter, the subject Resolution No. 37, dated 20-12-2005 was without any power and had no legal sanctity. Reliance on the prescription of fee and cost by the High Court is absolutely incorrect and misconceived. Since Resolution No. 37 has already been withdrawn, it is not required to be quashed.

Accordingly, the Court ruled that money received in excess is illegal and by no stretch of imagination it can be retained by CBJ contrary to their entitlement and CBJ was directed to refund the excess money out of the amount deposited by the applicant.

[2009 (1) ID 144 (M.P. High Court) : Amar Chand Bawaria v. Union of India and Others, W.P. No. 9264 of 2007, decided on 5-9-2008]

? Penalty – Reasonable cause Here, in this case, penalty of Rs.10,000 was imposed on the State PIO, S. P. Arora, estate officer of HUDA to be recovered in four monthly instalments for the lapse on his part for delay in furnishing the information. The Commission had also imposed a cost of Rs.2000 on account of considerable harassment to the applicant of the information.

The facts of the case were : The sequence of the events would show that the information was sought on 29-1-2007 on one plot when the file of the plot in question was lying with the Bank. The file was received back on 22-2-2007, but again sent to the Bank on 13-3-2007. The same was received on 30-3-2007 and information was supplied on 10-4-2007.

The Court held : “The penalty can be imposed only if there is no reasonable cause for not furnishing the information within the period of 30 days. The word ‘reasonable’ has to be examined in the manner which a normal person would consider it to be reasonable. The right to seek information is not to be extended to the extent that even if the file is not available for the good reasons, still steps are required to be taken by the officer to procure the file and to supply information. The information is required to be supplied within 30 days only if the record is available with the office. The inference cannot be drawn of the absence of reasonable cause for the reason that file could have been requisitioned back from the Bank. Since file was not available with the office, the inference drawn does not seem to be justified.”

In view thereof, the Court was of the opinion that the order of imposing penalty on the petitioner is not sustainable in law. Consequently, the writ petition was allowed. The impugned order passed by the State Public Information Commission was set aside.

[2009 (1) ID 1 (Pb & Hry. High Court) : S. P. Arora, SPIO Cum Estate Officer, HUDA v. State Information Commission, Haryana and Others, CWP No. 15288 of 2007, decided on : 17-10-2008]

Part B: The RTI Act

Standing Committee of the Parliament on RTI Act, 2005:

In February 2009, two items were reported:

1. Level of awareness.

2. Use and misuse of the RTI Act.

In March 2009, another two items were reported:

1. Reduction of 20 years period for keeping docu-ments.

2. Voluntary disclosures.

Hereunder further 3 items:

Changes in S. 8 :

Though provisions u/ s.8 are all reasonable, one of the most misused Section of the Act, as seen through our study, is S. 7(9). This Section says that information shall ordinarily be provided in the form in which it is sought, unless it would disproportionately divert the resources of the public authority. Unfortunately, many government departments are hiding behind this Section to deny all sorts of information even though a close reading of the Section would make it clear that it does not allow you to deny any information, but only allows you to give it out instead in the form available. A circular from the Department of Personnel and Training has confounded the confusion further. Therefore, a clarification needs to be issued through all Information Commissions that this Section of the Act cannot be used to deny information, but only allows the PA to give asked-for information in the form available, rather than in the form asked for.

Another Section that is being misused to deny in-formation is S. 11(1). Again, a close reading of this Section makes it clear that:

(i) Only that information can be considered third-party under this Section, which has been treated as confidential by the third party. Therefore, all information about a third party does not come under this Section.

(ii) That even third-party information of this type cannot be withheld unless it is exempt u/ s.8 (1).

This Section of the Act is intended to give the concerned third party an opportunity to try and convince the PIa that the information asked for is exempt under one of the subsections of S. 8(1) or S. 9. Therefore, it obligates the PIO to give an opportunity to be heard to the third party.

However many PIOs are rejecting information that pertains to a third party even when it is not considered confidential by that third party, and without giving any notice to the third party or giving any ground for rejection u/s.8(1) or u/s.9, as required.

Penalties :

Though the quantum of penalty prescribed is appropriate for the present, unfortunately there is no inbuilt provision for it to be automatically enhanced. Therefore, it would be useful to have a provision, which raises the quantum of penalty on an annual basis, to keep pace with inflation.

The prescription that Rs.250 per day should be imposed as penalty might be appropriate for cases of delay, but is not appropriate for other categories of offences, like refusal to accept application, wrong-ful denial, giving false information, destroying information, etc. These offences cannot be measured in days. Therefore, it would be more appropriate if for these offences a minimum and a maximum penalty was prescribed, giving discretion of the quantum to the Commissioner. These could be a minimum of Rs.5,OOO and a maximum of Rs.50,000 to be raised in keeping with inflation.

It is also important that penalties should be imposable on public authorities if they violate the RTIAct. So, for example, a public authority that does not comply with S. 4 (suo moto) declaration provisions, or does not appoint PIOs and APIOs, or in any way violates the provisions of the RTI Act, should also be required to pay a penalty of a minimum of Rs.25,OOO and a maximum of Rs.5 lakhs.

Use of the RTI Act and refusal of information:

We have used the RTI Act over three hundred times in the last three years. A bulk of this has been as a part of our study to assess the implementation of the RTI Act. However, there are many other instances where we have filed RTI. One interesting case, where information was denied to us, related to our request for access to records regarding the appoint-ment of the Chief Information Commissioner and other Central Information Commissioners in 2005. Though the Central Information Commission or-dered that this information be given to us, it never was and our review petition with the Information Commission is pending for over a year.

We had also applied to the Prime Minister’s Office and to the Department of Personnel and Training for access to records pertaining to the Cabinet decision, in 2006, to amend the RTI Act. This was also denied to us because the Government claimed that as the matter was not yet over and was still under consideration of the Cabinet, it was exempt from disclosure.

Part C : Other News I

RTI helps physically-challenged youth:

K. Sudalai, a physically-challenged youth of Palayamkottai in Tirunelveli district, might soon join the Tamil Nadu State Transport Corporation (TNSTC) as a bus conductor, thanks to the Right to Information (RTI) Act, 2005.

He had completed standard X in 1996 and possessed a conductor’s licence issued by the Regional Transport Authority. However, his name did not find place in the list of candidates eligible to apply for the post of bus conductor in Madurai Division of TNSTC.

When his enquiry as to why he was dropped from the selection despite necessary qualifications was not replied to, he submitted an application under the RTI Act. In reply, he was informed that physically-challenged persons were not fit to be appointed as conductors.

The reply helped the youngster file a writ petition in the Madras High Court to consider his candidature as enunciated in Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.

Justice K. Venkataraman pointed out that as per the Notification published in the Union Gazette on March IS, 2007, bus conductor was one of the jobs that could be occupied by persons with orthopedic disabili ties.

He agreed with petitioner’s counsel G. Prabhu Rajadurai that there was no reason for the Madurai Division to reject physically challenged persons to the post of conductor when other Divisions were not doing so.

The Judge directed TNSTC to consider the petitioners’ plea within four weeks.

Disclosure of Ministers’ assets:

The controversial issue of disclosure of Ministers’ assets has been hanging fire for over a year. Applicant Subhash Chandra Agarwal had asked for information related to assets of Union Ministers and their kin.

In his order, Chief Information Commissioner Wajahat Habibullah said “the information is not disclosable except with the permission of the Speaker”. This is with reference to the disclosure of information related to Ministers who are LS members. If there is any equivalent rule with regard to the Rajya Sabha, this may also be exercised. The CIC has stipulated a time period of 30 days.

According to sources, there has been precedent when the Speaker has allowed disclosure of assets of LS members. Rules framed by the Parliament committee stipulate that LS members must submit assets in a sealed cover to the Speaker. The information is kept confidential till such time the Speaker deems fit. So far, the Government has been reluctant to part with the information and the PMO holds the view that information sought is exempt u/ s.8 of the RTI Act.

Compliance of S. 4 of the RTI Act:

Maharashtra Information Commission receives the highest number of appeals in this country. Nearly, 16000 appeals and complaints are pending before the State Commission, some of them as old as of 2006. It appears that if the inflow as is presently continues, it will never be able to cope with reduc-ing the pendency. Hence, SCIC Dr. Suresh Joshi has urged State Chief Secretary Johny Joseph to ensure that public servants uphold the spirit of implementation of the RTI Act. In a letter dated February 25, 2009, Joshi warns Public Information Officers (PIa) to implement RTI Act in its true spirit or face action.

In his letter, he writes: “We get the maximum RTI applications in the world and there is no reason why we should not be judged as the most transparent State. PIOs are the fulcrum of the Act. If they do not discharge their responsibilities properly, then there is a fine. If the PIa does not give information on time, it means he is a willful defaulter. He cannot then say tha”the did not know the Act or that he was not trained. We will strictly implement the procedure of the Act”.

Information on selection of Judges:

The Delhi High Court has stayed an order of the Central Information Commission (CIC) asking the Government to disclose documents on the appointment of the Himachal Pradesh Chief Justice, after the Centre pleaded that such information about Judges can’t be revealed under the RTI Act.

Challenging the CIC order that had asked the Govt. to reveal documents and file notings on the appointment of Himachal CJ Jagdish Bhalla, whose promotion file was returned by the then President A. P. J. Abdul Kalam in 2007, Additional Solicitor General P. P. Malhotra pleaded that such information was beyond the RTI purview. Justice S. Ravindra Bhat, after hearing his contention, stayed the CIC order and issued a notice to the RTI applicant on whose plea the Commission had passed the direction.

Numbers at CIC :

The following are the disposals of appeals/complaints at the Central Information Commission from October 2008 to January 2009 :

Losses of State transport vehicles due to riots:

Data available with the Times of India (Tal), accessed through the Right to Information (RTI) Act, shows that the Maharashtra State Road Transport Corporation (MSRTC) incurred damages of around Rs.3 crore in various riots that broke out in different parts of the State in the 32 months between April 2006 and November 2008.

The recent Bombay High Court observation, saying leaders of rioting political parties should be made to pay for their supporters’ violence, has come as a shot in the arm for the transport utilities. MSRTC Vice-Chairman O. P. Gupta told TOI “the transport utility would cite the recent Court order that put the onus on political outfits to pay for damages. The political parties should be made responsible and pay up for the damages incurred”.

VIP Gifts:

The Central Information Commission has given the Ministry of External Affairs (MEA) 20 days to disclose the system of assessing gifts received by ‘political rulers’ and constitutional authorities, including the President of India, the Prime Minister and Judges of higher courts from foreign countries. Information Commissioner Annapurna Dixit directed the Central Public Information Officer of MEA to provide information about how the assessment of these gifts is done and the list of protocol order.

The decision came on an appeal filed by S. C. Agarwal seeking information on the “system fol-lowed on gifts received from foreign countries” by constitutional authorities and others, including the President, Vice-President, LS Speaker, PM, Ministers, Governors, Judges of higher courts, chiefs of three services and others in the protocol list. The appeal also sought a disclosure on whether these gifts were in their official capacity or kept in personal custody or deposited with the Government.

BCAJ Admin

Right To Information

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CIC’s decisions :

Schools, aided or otherwise, are covered under RTI :

In one interesting case, the Central Information Commission,
vide its order dated 18-5-2007, had directed the Directorate of Education, GNCT
of Delhi to obtain u/s.2(f) of the Act, the minutes of the Managing Committee
(MC) meetings from March 2002 to March 2007 from the Purna Prajna Public School,
Vasant Kunj, New Delhi and provide a copy to the appellant, Shri D. K. Chopra.
Subsequently, the ap-pellant informed the Commission that the PIO had not
complied with the above decision and when asked about it, the PIO stated that he
had no legal authority to obtain the information from the school.

The PIO at the hearing in this adjunct matter reiterated that
under the Delhi Education Act, the documents which could be obtained are
specified under Annexure-II in which the document, namely, minutes of the
meeting of the Managing Committee of schools is not included. The Department of
Education was therefore unable to acquire the minutes of the Managing Committee
from the concerned school as directed by the Commission. Though an official of
the respondent is a member of the MC, the PIO has, however, no access to the
minutes of MC.

In the decision, the Information Commissioner noted :

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A major objective of the RTI Act is to ensure transparency and accountability in
functioning of the institutions, particularly the service providers that have
considerable interface with a larger section of people. The documents, in
question, contain such information that foretell about the health and vitality
of the schools which are responsible for preparing our children to lead the
nation. Moreover, the information asked for is an outcome of deliberations of
the major stakeholders — school authorities, teachers, representatives of PTA
and the Government of Delhi. The minutes of MCs are thus already in public
domain, as these are circulated among the members. How can it be treated as
confidential or secret ? Unfortunately, the Principal of the school and the PIO
have connived to withhold the minutes of the MCs for reasons that contravene
with the larger purpose of creating an information regime for good governance.

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All the aided or unaided schools are performing
governmental functions to promote high quality of relevant education. An
official of the GNCT of Delhi is nominated by the Directorate of Education as a
member of the Management Committee of all the schools. The nominated member of
the Directorate of Education is therefore the custodian of the minutes of the
MCs u/s.5(4) of the RTI Act. And, there is no reason why such minutes,
reflecting the aspects of governance of the school, should not be put in public
domain. The Government has the control on the functioning of the schools and,
therefore, it has access to the information asked for. And, so has a citizen.

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Not only the land allotted to private educational institutes is provided at
subsidised rates, but also the fees paid by the students/parents enjoy
income-tax concession. There is thus some element of indirect Government funding
in the activities of even private and un-aided schools. In view of this, the
respondent, which is represented through its officials on the Managing
Committee, is surely the custodian of the information asked for by the
appellant. The decisions of the MCs have significant bearing on the life and
career of the students as well as their parents/guardians and, therefore, there
is no reason why the minutes of the Managing Committee should not be disclosed
to the affected persons i.e., the citizens.

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The PIO’s contention that the minutes of the MCs are not included in Annexure-II
of the Delhi Education Act and, therefore, he cannot acquire them is not
acceptable, as S. 22 of the RTI Act, 2005 has an overriding effect on all such
provisions that come in the way of promotion of transparency in functioning of
the schools, the activities of which are governmental in nature. The PIO is
directed again to furnish the information at the earliest under intimation to
the Commission.

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In view of lackadaisical attitude of the concerned PIO and the principal of the
school towards the implementation of the RTI Act, the Commis-sion’s order dated
18-5-2007 has not been compiled with, which is unfortunate. The Director (Edu.),
Directorate of Education, GNCT of Delhi is therefore directed to initiate
appropriate action against the school, including cancellation/withdrawal of its
recognition, as the school has chosen to function in a manner which is not duly
transparent and is, thus, inconsistent with the ethos and purpose of the RTI
Act. An action taken report should be submitted to the Commission at the
earliest.

From the above decision, one can conclude that schools,
whether aided or otherwise, are covered under the RTI Act.

(Shri D. K. Chopra v. Directorate of Education, GNCT
of Delhi : Decision under F. No. CIC/MA/A/2007/00104 of 12-9-2007)

The RTI Act :

Chapter 4 of the Annual Report 2005-06 as published by the
Central Information Commission deals with overview of implementation of the RTI
Act, 2005.

It is a report u/s.25 of the RTI Act on the implementation of
the provisions of this Act during the year 2005-06 (for the period from
12-10-2005 to 31-3-2006).

The implementation report (IR) is made up of various charts and tables. It is interesting to note that in many aspects, the Ministry of Finance tops the chart, some noted as under:

Further, statistics show that out of 4770 requests received by the Ministry of Finance (which forms at least 20% of the total RTI requests in the year) they rejected 1748, which forms 51.6% of all the rejected applications in the year.

This disproportionately high ratio of rejection calls for introspection and training of the staff of public authorities under this Ministry in disposing of the RTI requests.

It seems that out of total 24436 RTI applications furnished in the year (as above) ended 31-3-2006, only 451 went for second appeal to the Central Information Commission (CIC). It disposed of 441 of them. CIC also received 252 complaints u/s. 18; it disposed of 241 of them as on 31-3-2006.

Other News

Mere existence of an investigation, no ground for refusal of information:

Recently, the Delhi HC strengthened the RTI law by interpreting its provisions. Justice S. Ravindra Bhat said: a person who has been accused of dowry demand by a woman or her parents is entitled to get information about the details of income-tax returns filed by the complainant.

One Bhagat Singh, who had been charged by his wife with demanding dowry, sought information about the complainant’s tax returns to prove that the latter spent money on the wedding from unknown sources or had concealed wealth. Any expenditure on marriage must be listed and the source of wealth accounted for.

It is apparent that the mere existence of an investigation process cannot be a ground for refusal of information. The authority withholding information must show satisfactory reasons as to why the release of such information would hamper the investigation process. Such reasons should be germane, and the opinion of the process being hampered should be reasonable and based on some material. Without this consideration, S. 8 and other such provisions would become the haven for dodging demands for information. Moreover, rights-based enactment is akin to a welfare measure and it should be open to liberal interpretation. Otherwise a social act becomes unsocial.

Editorial in DNA:

Given India’s notorious red-tapism, corruption and lack of official accountability, the importance of the Right to Information Act (RTI) cannot be overestimated. Since the RTI was implemented in October 2005, Indians have taken to it in a big way, sensing an opportunity to get information on matters critical to their local communities and to citizens in general.

The bigger problem is that the bureaucracy has still not fully come to terms with the full import of RTI, or if it has, then there have been attempts to ignore it. We have heard of all kinds of impediments, from the silly to the sinister, that are put in the way of the applicant. Then there are departments and ministries which find various excuses to stay out of the ambit of the RTI Act; in one recent case even the PMO was cagey about giving information on the disappearance of Subhas Chandra Bose. India has no law like in the US where archival material automatically comes into the public domain after 30 years. Most citizens will want information on things that touch their lives; but the general principle of openness should apply everywhere, and that is not happening.

Dial up for RTI :

The year 2008 may ring in Right to Information (RTI) on telephone as the Central Information Commission (CIC) has a proposal to open a call centre in Delhi for facilitation of RTI use.

In Bihar, a call centre has been in operation since january 2007. In case of information provided on telephone, the fee stipulated for the use of RTI is added to the telephone bill of the information seeker. .

The centre will also intensify the campaign to train and sensitise designated Public Information Officers on the RTI Act. Till now, only 10 percent of information officers and other government officials have been trained. The officers are being trained in Administrative Training Institutes in different states. These one-day to three-day courses have been devised by Yashada in Pune, Centre for Good Governance in Hyderabad and Institute of Secretarial Training and Management in Delhi.

The Chief Minister’s Relief Fund:

In this feature in February 2008, a small news item was given on this fund. Now the Chief Minister has conceded to get CM Relief Fund covered under the RTI Act. The disclosure obtained under the RTI application has shocked the citizens of the State.

The fund, which lists assisting people trapped in natural disasters as its sole objective, was registered with the Charity Commissioner in 1967. The RTI query has now revealed that a large part of the Rs.50 crore or thereabouts which the CM’s office received in donations between 2003 and 2005 (when first Sushilkumar Shinde and then Vilasrao Deshrnukh were at the helm) went to events conducted by institutions that were in no way related to calamities and disasters.

All details disclosed show blatant misuse of funds.

RTI v. Courts and Legislative Bodies:

Right from inception of the RTIAct, there have been ongoing debates regarding powers of RTI Information Commissioners v. the powers of the Court Judges. Now conflicts have started between RTI Information Commissioners and the State Legislative Assembly. Taking serious note of the issue of notices to the Vidhan Sabha Principal Secretary by the UP Information Commission, the State Assembly resolved that any such summons will be considered a violation of the privileges of the House and necessary action will follow.

The decision of the House comes in the wake of the issuance of two notices by the Commission to the Principal Secretary R. P. Pandey on two petitions to the panel.

In both cases, the Secretary had pleaded that the House was not covered under the Act. On this, the applicants approached the State Information Commission, which in turn issued notices to Pandey. Meanwhile, both matters had been referred to the privileges committee, though one of the notices was later cancelled by the Commission.

Mumbai gets first Information Commissioner:

Ramanand Tiwari is appointed as SIC stationed in Mumbai. It may be interesting to note that only 5% of SICs and CICs are non-bureaucrats, one of them is SIC for Pune division, Vijay Kuwalekar, who is a senior journalist.

ATM operation:

Commercial banks cannot be compelled under the Right to Information (RTI) Act to divulge the operational details of their ATMs installed across cities, the Central Information Commission (CIC) has ruled. “Information pertaining to operation of ATMs is really a matter of commercial confidence. As a matter of fact, a lot of security is involved in such a procedure and such information cannot be given to any outsider,” CIC’s Information Commissioner Padma Balasubramanian held in a ruling on January 29.

Fanners’ suicide:

According to information obtained under the RTI Act, more than 800 farmers committed suicide in the first six months of 2007.

The agrarian crisis has forced 607 farmers to commit suicide in Maharashtra, while 114 have ended lives in Andhra Pradesh. Seventy-three have killed themselves in Kamataka and 13 cases were reported from Kerala in the first half of the last year alone, the information revealed. This despite NDA-ruled States like Punjab and Gujarat having failed to furnish details about the number of farmer suicides to the Union Agriculture Department.

BCAJ Admin

Right to Information

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Part A : Decisions of CIC and SIC

Provisions of S. 19(8) of the RTI Act :

S. 19(8) provides for the powers of the Information
Commissions and includes the power to require the public authority to compensate
the complainant for any loss or other detriment suffered.

An interesting case came up before the State Information
Commission, Goa. Mr. Harihar Chodankar, Mapusa, Bardez, Goa made an RTI
application seeking information of certain details of conservations in different
properties within the jurisdiction of the Calangute Village Panchayat.
Application was rejected by PIO u/s.8(j) of the RTI Act. The first appellate
authority directed PIO to give the information within 15 days. PIO still did not
furnish the information. Hence Mr. Chodankar made a complaint to SIC, Goa u/s.18
of the RTI Act. Even under proceedings before SIC, the PIO went on taking
adjournments and finally wrote to Mr. Chodankar that documents requested are not
available and files not traceable; only in respect of one property, part of the
information was furnished.

SIC then ruled that there is a willful disobedience by PIO.
However as in one year a number of individuals had occupied the position of PIO,
it was difficult to find out who in particular is responsible for the defaults.
SIC, therefore directed the Director of Panchayats to hold an inquiry, fix up
responsibility for missing records in this case and initiate disciplinary
proceedings against the persons found responsible. He directed the Director to
file compliance report to the Commission in six months time.

SIC further noted : “As the appellant/complainant was put to
considerable hardship and also this not being the first case the Village
Panchayat has misplaced its records, we consider it proper to award compensation
to the appellant/complainant in exercise of powers vested in us u/s.19(8) of the
RTI Act. However, as the High Court in a writ petition No. 327/2007, is seized
of the jurisdiction of this Commission to award compensation u/s.19(8) in a
complaint proceeding u/s.18 of the RTI Act, we restrain ourselves from awarding
the compensation.

We shall await to find out what the High Court decides about
the powers u/s.19(8) as CIC has already awarded compensation to the complainant
u/s. 19(8). (See BCAJ : August 2008). No information available whether SEBI who
has to pay this compensation has gone in writ.

[2008 (2) ID 157 (SIC, Goa) : Mr. Harihar Chodankar,
Mapusa, Goa v. PIO, Secretary, Village Panchayat of Calangute, Goa and the
first AA, BDO, Goa]

Fee for certified copy of the information :

Very often at the RTI Clinic of BCAS Foundation, individuals
come to enquire as to what fees are payable for certified copies of the
documents under the RTI Act. The rules provide fee for copies of the document.
Under the RTI (Regulation of fees and cost) Rules of the Central Government, it
is Rs.2 for each page (in A4 or A3 size paper) created or copied. The same is
the fee in the rules of many states. However, there is no rule providing for
fees for certified copies.

Before SIC, Maharashtra, Mr. Bomi Mistry made a complaint
that BMC has been charging fees for certified copies which are not in consonance
with the RTI Act.

However in view of what the Rules provide, SIC (Dr. Suresh
Joshi, CIC) has ruled as under :

Rule 4 does not prescribe the fees for certified copies, therefore, if an
appellant needs certified copies, whatever rates are prescribed by BMC for
certified copies should be charged.

At many places under BMC schedule of rates separate rates for copy and
separate rates for attestation has been mentioned. In such case, for a copy
the fee prescribed under rule 4(b) i.e., Rs.2 per page, etc. should be
charged and for attestation the fees prescribed under schedule of rates of BMC
should be charged.

[Shri Bomi Mistry, Mumbai v. PIO, Assessment and
Collection Department, MCGM, Head Office, Mumbai]

Whether Co-operative Societies are covered under the RTI Act :

Hundreds of individuals have raised this issue. It is
understood that SIC in Maharashtra generally rules that as such the co-operative
societies are not covered, but the information which the societies are required
to file with the Registrar of Co-operative Societies can be accessed from his
office and no information beyond it.

However, there has been a decision, extensively discussing
the issue, running into 42 pages of Gujarat Information Commission on this
subject. The decision/order reads as under :

(i) All co-operative societies registered under the Gujarat State Co-operative Societies Act, 1961 are bodies controlled falling within the ambit of the definition of ‘public authority’ given at S. 2(h)(i) of the Right to Information Act, 2005 and, therefore, are public authorities.

(ii) All co-operative banks since all such banks are registered as co-operative societies are also bodies controlled falling within the ambit of the definition of ‘public authority’ given at S. 2(h)(i) of the Right to Information Act, 2005 and, therefore, are public authorities.

(iii) In view of the above decision, all co-operative societies and co-operative banks are required to abide by the relevant provisions of the Right to Information Act, 2005, particularly Chapter II thereof, dealing with obligations of public authorities, including providing information to the citizens, subject to the provisions contained in S. 8(1), S. 9 and S. 10 of the Right to Information Act, 2005.

The decision is challenged and pending before the Gujarat High Court.

Part B : The RTI Act

The RTI Act is by now a three-year young Act, powerful and bringing solutions to many ills in society. However, no statistics of its implementation are available. It is funny to say that the Act to provide information does not provide information for its implementation! There have been many key issues and constraints in its implementation. In order to study the same, the Government of India, Department of Personnel and Training, in the Ministry of Personnel, Public Grievances and Pensions have appointed Price Waterhouse Coopers Private Limited to conduct a study. PWC has issued a separate questionnaire for feedback from each of the six stakeholders identified by them.

Answers to these questionnaires shall provide to PWC various missing, unavailable information and views of the information providers and information seekers.

Some of the information, very essential to assess the success of the Act, but not available are:

How many Public Authorities (AA) exist, how many of them have complied with their obligations.

How many PIOs and AAs are there in these PAs.

How many applications are made each year, how many go to the first AA and how many then give up and do not go for the second appeal to CIC/SIC.

What is the level of awareness of the RTI Act in urban areas and rural communities.

What are the major difficulties faced by information seekers in filing RTI applications, level of satisfaction or otherwise.

Similarly, what are the major complaints of PIOs in terms of their obligations, time-bound responsibilities to attend to RTI applications along with other duties assigned to them.

Let us hope that the study enlightens various stakeholders – Governments, Information Commissions, Public Authorities, Public Information Officers/ Appellate Authorities, Nodal Agencies (appointed for training of PIOs, etc. and awareness building) information seekers, RTI activists, media, etc.

Part C : Other News

• RTI Helpline :

RTI activists in many cities of India run RTI helpline. Telephone helplines today are an increasingly common part of communication. They are very easy, less expensive and fastest medium of communication in India. With the advent of mobile phone, every 4th/ 5th citizen has access to mobile.

The Public Concern for Governance Trust’s (PCGT) Right To Information (RTI) Helpline in MUMBAI, launched on 2nd October, is purported to be an effective initiative of dealing with governance issues in which large number of people need personal counselling or information for filing RTI applica-tions. RTI Helpline could answer basic questions such as: what is the fee for filing applications, how to pay fees for an RTI application, among other things.

The main goal of PCGT’s RTI Helpline is to inform the public of the many issues of governance that we as a society face today, while also encouraging the citizenry to take up the struggle for governance at individual level. As Mahatma Gandhi said, “The real Swaraj will come not by the acquisition of authority by a few, but the acquisition of capacity by all to resist authority when abused”.

PCGT’s RTI Helpline – 93228822881

RTI – on wheels:

An RTI-on-wheels facility started by the Gujarat Mahiti Adhikar Pahel, an NGO in Gujarat, was showcased in Mumbai and Pune by PCGT from 27th to 30th September. The mobile van is equipped with an LCD projector, screen and computer with internet, scanner, printer, copier and a small library. The vehicle showed films on RTI, distributed pamphlets and assisted people in filing RTI applications.

Thousands of individuals in Mumbai and Pune benefitted by the visit of this unique van to Maharashtra.

Mumbai has lost more than 25000 trees:

Data obtained under the Right to Information Act revealed that the Tree Authority had collected deposits of Rs.9,24,19,OOOfor granting permissions for removal of trees up to March 2006. In subsequent period, further deposit of around Rs.2 crores is received.

Nominated member of the Tree Authority Nilesh Baxi said, “One. thing is certain – out of around 30,000 trees transplanted since 2000, not more than a couple survived. To assume that 25,000 have not been replanted because refunds of the massive deposits are not claimed is one inference. But, in many cases, small-time builders who transplant trees don’t reclaim the amount after getting the no-objection certificate.

RTI Appeals on BMC:

It is learnt that one Assistant Commissioner of Municipal Corporation of Greater Mumbai never even bothered to look at the pending 67 RTIappeals, a blatant violation of the RTI Act.

Penalty for delay in answering RTI application:

The Maharashtra State Information Commissioner, Suresh Joshi has penalised PIa, attached to crime branch’s economic offences wing, for not providing information under the RTI Act within the stipulated period. In his order, [oshi directed that Rs.2,750 should be deducted from PIa S. B. Mohite’s salary as he provided the required information after a delay of 11 days.

Special Report in MIDDAY:

On 12th October 2008, The Right to Information Act completes three years. On this occasion, MIDDAY brought out a two-page special report which I had a privilege to edit. The report is available at BCAS Library for anyone to read. It contains articles by Arvind Kejriwal, Shailesh Gandhi, Julio Ribeiro and myself and one interesting story of 14-year young filing RTI application and bringing facilities to the town he resides in and much useful information.

BCAJ Admin

ORDERS OF THE COURT

Right to Information

Part A: ORDER OF THE
COURT

S. 8(1)(e) of the RTI Act :

8 writ petitions, including one
— The Institute of Chartered Accountants of India v. CIC [writ petition
(civil) No. 3607 of 2007], are decided by the High Court of Delhi on 30-11-2009.

As the judgment is of interest
to members of our profession, from the order which runs into 48 pages, I
reproduce verbatim the relevant four paras.

91. Respondent no. 2 herein —
Mr. Y. N. Thakkar had made a complaint alleging professional misconduct against
a member of the Institute of Chartered Accountants of India. The complaint was
examined by the Central Council in the 244th meeting held in July 2004 and was
directed to be filed as the Council was prima facie of the opinion that
the member concerned was not guilty of any professional or other misconduct. The
Council did not inform or give any reasons for reaching the prima facie
conclusion. In fact it is stated in the writ petition filed by the Institute of
Chartered Accountants of India that the Council was not required to pass a
speaking order while forming a prima facie opinion.

92. On 7th January, 2006
respondent no.2 filed an (RTI) application seeking details of reasons recorded
by the Council while disposing of the complaint. The information was not
furnished and was denied by the PIO and the first Appellate Authority on the
ground that the opinion expressed by the members of the Council was
confidential.

93. By the impugned order dated
31st January, 2007 the CIC has directed furnishing of information without
disclosing the identity of the individual members.

94. In the writ petition filed,
the Institute of Chartered Accountants of India has projected that respondent
no. 2 wants, and as per the impugned order, the CIC has directed furnishing of
deliberations and comments made by members of the Council while considering the
complaint, reply and the rejoinder. Respondent no. 2 has not asked for copy of
deliberation or the discussion and comments of the members of the Council. He
has asked for reasons recorded by the Council while disposing of his complaint.
During the course of discussion, members of the Council can express different
views. Confidentiality has to be maintained in respect of these deliberations
and furnishing of individual statements and comments may not be required in view
of S. 8(1)(e) and (j) of the RTI Act. However, I need not decide this question
in the present writ petition as the respondent no. 2 has not asked for copy of
the deliberation and comments. His application is for furnishing of reasons
recorded by the Council while disposing of the complaint. There is difference
between the reasons recorded by the Council while disposing of the complaint,
and comments and the deliberations made by individual members when the complaint
was examined and considered. Reasons recorded for rejecting the complaint should
be disclosed and there is no ground or justification given in the writ petition
why the same should not be disclosed. In fact, as per the writ petition it is
stated that the Council did not pass a speaking order rejecting the complaint
and it is the stand of the petitioner that no speaking order is required to be
passed while forming a prima facie opinion. It is open to the petitioner
to inform respondent no. 2 that no specific reasons have been recorded by the
Council. The consequence and effect of not recording of reasons is not subject
matter of the present writ petition and is not required to be examined here.
Writ petition is accordingly disposed of with the observations made above.

From the above, it will be
observed that it is important to seek information fully and properly. If the
applicant had asked for the comments and deliberations made at the Council
meeting of ICAI, he would have got it, but he had asked only the reasons
recorded by the Council. To make the reporting complete, I also reproduce the
Commission’s decision dated 31-1-2007 as referred to in para 93 of the above
order :

Commissions’ decision :

The CPIO has already furnished
partial information. He has, however, withheld the deliberations of the Council
on the ground that the opinion expressed by the Council members are
confidential. In the spirit of the RTI Act, which aims at creating conditions
for taking informed decisions, the views expressed by the public servants should
be put in public domain to prompt transparency in the decision-making process.
The CPIO is therefore directed to disclose the information sought, after due
application of S. 10(1) of the Act, within 15 working days from the date of
issue of this decision. The identity of an individual member, who may have
expressed his opinion on any issue of complaint should, however, be withheld,
lest the disclosure of identity should endanger his life and liberty.

Part B: THE RTI ACT

We have many RTI success stories
happening at clinics operating at BCAS Foundation and other places. But, we
never report them. However, when ‘The Miracle’ happened for Arvind Dalal, past
President of BCAS and ICAI, I thought it would be worth reporting. Hence, I
requested him to pen a few words and here they are :

The miracle that is RTI
by
Arvind Dalal

I am induced to write this
article on RTI of my personal experience prompted by Narayan Varma, so that it
may inspire others to resort to the unfailing remedy of RTI.

I have a small cottage in
Lonavala which I acquired in March 1993 and launched the document of sale deed
for registration with the seller and the advocate of both parties. I was
informed by the seller and the advocate that original sale deed duly registered
with the Registrar at Pune will be returned to me after ‘reasonable time’ duly
stamped on each page for registration.

Knowing as I do what is ‘reasonable time’ for income-tax proceedings, I did not bother about the registration for ten years even though that is an unreasonable period for registration of a document. But I started pursuing the matter since 2003 and for about four years I was given a stone-walling reply from the Registrar’s Office that the document is not received after registration, but it will take some more time and I will receive the same as soon as reasonable period is over.

Finally in 2007 I was told after several visits to the Registrar’s Office in Lonavala, that the document was received but for want of space in Lonavala office, it is sent to the Registrar’s office at Vadgaon-Maval about 20 miles away from Lonavala. I visited Vadgaon from time to time with my wife and with the advocate. Every time we were informed that the document will have to be searched out from a heap of documents and I must wait till evening to give them enough time to look for the same. My advocate also inquired several times at Vadgaon, but every time the reply was the same that it was not traceable.

I talked to Narayan Varma who suggested to make an application under the RTI Act and he helped me to prepare the application including questions there-in regarding how many documents were lodged for Registration in 1993, which were still pending in 2010 and how many were registered and returned to the applicants, what was the limit prescribed under the Act and more specifically when will my document, lodged in March 1993, be registered.

Within 15 days, I received a reply at my Mumbai address that my documents will be sent to me in due course but in the meanwhile, I could take inspection at Vadgaon by paying the necessary charges. I replied, thanking them for their letter sent after 17 years (Lord Ramachandraji’s vanvas was over in 14 years) and asking them to send original sale deed at the earliest. Lo and behold?! Within ten days, I get the original document in 2010 registered in 1993?!

The moral of the fairy tale is that one must invoke one’s rights as a citizen more frequently under the RTI Act, particularly when activist like Shri Narayan-bhai is out to help us and citizens must exercise their rights under statute given by the government by taking a little extra trouble?!

Part C: OTHER NEWS

Significant pronouncements by the Commission?:
Some time ago, when Shailesh Gandhi, CIC was in BCAS office – Mumbai, addressing RTI activists and journalists, he distributed compilation of 8 important profound pronouncements by the Central Information Commission. Herewith 5 & 6 thereof?:

(Continued from January 2010)

5. Sub judice?:

The Appellate Authority had claimed exemption u/s.8(1)(e), but the PIO has given no reason to justify how S. 8(1)(e) can apply.

The CIC decision cited by the respondent states ‘The matter is sub judice. The Appellate Authority has cor-rectly advised that information in question could be obtained through the Court which is examining the matter.’ No reasoning has been offered as to which exemption clause of the RTI Act applies. The only exemp-tion of S. 8(1) which might remotely apply and under which information can be denied is S. 8(1)(b) states, ‘information which has been expressly forbidden to be published by any Court of law or Tribunal or the disclosure of which may constitute contempt of Court;’

This clause does not cover sub judice matters, and unless an exemption is specifically mentioned, information cannot be denied. Disclosing information on matters which are sub judice does not constitute contempt of Court, unless there is a specific order forbidding its disclosure. I respectfully have to disagree with the earlier decision cited by the appellant since it is per incuriam.

This Commission rules that a matter being sub judice cannot be used as a reason for denying information under the Right to Information Act.

6. Privacy?:

U/s.8(1)(j) information which has been exempted is defined as?: “information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or State Public Information Officer or the Appellate Authority, as the case may be, is satisfied that the larger interest justifies the disclosure of such information?:” To qualify for this exemption the information must satisfy the following criteria?:

It must be personal information. Words in a law should normally be given the meanings given in common language. In common language we would ascribe the adjective ‘personal’ to an attribute which applies to an individual and not to an institution or a corporate.

From this it flows that ‘personal’ cannot be related to institutions, organisations or corporates. [Hence we could state that S. 8(1)(j) cannot be applied when the information concerns institutions, organisations or corporates.]

The phrase ‘disclosure of which has no relationship to any public activity or interest’ means that the information must have some relationship to public activity. Various public authorities in performing their functions routinely ask for ‘personal’ information from citizens, and this is clearly a public activity. When a person applies for a job, or gives information about himself to a public authority as an employee, or asks for permission, licence or authorisation, all these are public activities.

We can also look at this from another aspect. The state has no right to invade the privacy of an individual. There are some extraordinary situations where the State may be allowed to invade the privacy of a citizen. In those circumstances special provisos of the law apply, always with certain safeguards. Therefore it can be argued that where the State routinely obtains information from the citizens, this information is in relationship to a public activity and will not be an intrusion on privacy.

Certain human rights such as liberty, freedom of ex-pression and right to life are universal and therefore would apply in all countries uniformly. However, the concept of ‘privacy’ is related to the society and different societies would look at these differently. India has not codified this right so far, hence in balancing the right to information of citizens and the individual’s right to privacy, the citizen’s right to information would be given greater weightage.

Therefore we can accept that disclosure of informa-tion which is routinely collected by public authority and routinely provided by individuals, would not be an invasion on the privacy of individual and there will only be a few exceptions to this rule which might re-late to information which is obtained by a public au-thority while using extraordinary powers such as in the case of a raid or phone-tapping.

From the Budget speech of Pranab Mukherjee, Minister of Finance on February 26, 2010?:
Inclusive development?:

For the UPA Government, inclusive development is an act of faith. In the last five years, our Government has created entitlements backed by legal guarantees for an individual’s right to information and her/his right to work. This has been followed-up with the enactment of the right to education in 2009-10. As the next step, we are now ready with the draft of Food Security Bill which will be placed in the public domain very soon.

RTI is the new tool in divorce mudslinging?:

An interesting report in MIDDAY of 11-3-2010?:

Case 1?:

Ritika Sharma and her father claimed in the police complaint that they had provided Rs.30 lakh in dowry (in jewellery, cash and kind) to Ritika’s husband Mohan Sharma. Facing the prospect of imprisonment, Mohan Sharma filed an RTI application, seeking the income-tax details of his father-in-law.

It was revealed that Ritika’s father had only declared nominal income. It then became apparent that the claims made by the father-daughter duo about the dowry payment were false. The matter is sub judice. (Names changed)

Case 2?:

A month ago, Visakha Malhotra filed an RTI application seeking details of her ex-husband’s income after she was denied rightful maintenance following her divorce. Her husband had claimed that he was a busi-nessman. “Her petition was based on her right to live with dignity,” said a senior I-T official, on condition of anonymity. (Name changed)

According to income-tax officials, the trend of seeking RTI for dowry and maintenance cases began after a Delhi High Court judgment. In a 2007 case, Bhagat Singh was denied information regarding the earnings of his wife (with whom he had a discord), by the Income-tax Department, on the ground that the matter was being investigated. Singh, who was accused by his wife Saroj Nimal of accepting a dowry of Rs.10 lakh from her, filed a request with the Income-tax Department for investigating into his wife’s sources of income in view of the fact that she was a primary school teacher. In a landmark judgment, the Court directed the Income-tax Department to provide the information sought by Bhagat Singh.

The trend seems to be really catching on now. “There are around 30 ranges in the National Capital Region and each of these ranges processes or receives around 3 to 4 RTI applications seeking Income-tax details and most of them are related to either dowry harassment or maintenance cases.”

Tax refunds?:

At our RTI clinics, we assist many to make RTI application for the pending income-tax refunds. They invariably get the refund. The Times of India on March 15 reported on this subject and said?: Life just got better for millions who have ran from pillar to post for years to secure their tax refunds from the Income-tax (I-T) Department. In the landmark ruling, the Central Information Commissioner has passed an order which says “information on refunds is covered under the Right to Information (RTI) Act.”

M. L. Sharma, the Central Information Commissioner, while passing the order, said?:

“To deny the appellant information sought by him under clause (e) or clause (j) of S. 8(1) is nothing but misappreciation of law.”

“The information sought by the appellant is covered u/s.2(f) of the RTI Act and he has a right to seek information u/s.2(j) thereof. It is clarified that the appellant has not sought any information which the public authority is holding in fiduciary capacity.”

While directing the Income-tax Department to disclose information for the inordinate delay, he also ordered the issue of refunds within three months.

The CIC also rapped the Department for failing to appear in a hearing arranged by the Commission where the appellant was present.

Cabinet’s advice to the President of India?:

Pushing the boundaries in its interpretation of the Right to Information Act (RTI), the Central Information Commission (CIC) said advice given by the Union Cabinet to the President is liable for disclosure under the information law.

Referring to SC ruling on Article 74(2) on the question of constitutional privilege, Chief Information Commissioner Wajahat Habibullah ruled that though the Constitution said the Cabinet’s advice to the President could not be ‘inquired into’, it did not mean that such advice could not be ‘disclosed’. “It does not mean the nature of this advice can’t be disclosed,” he said while directing the President’s Secretariat to al-low checking of files pertaining to communication between former President Shanker Dayal Sharma and ex-PM Narasimha Rao on the issue of extending SC status to Dalits who had converted to Christianity.

Monitoring Govt. projects through the use of RTI?:

Although the State Chief Information Commissioner has asked alert citizens to monitor Government projects through the use of RTI, not many are satisfied with the way their efforts have found support.

The experience of Bhaskar Prabhu, an RTI activist and a member of Mahiti Adhikar Manch, an NGO that monitors Government spending, has not been good enough. Prabhu filed an application to monitor the money spent on grass beds at tree bases on Dr. Ambedkar Road in F/South ward, Mumbai. He also sought information on the expenses on iron guards around the trees. The details sought were for work orders worth Rs.7.26 lakhs that were passed in Octo-ber 2008 and January 2009. The work was to be completed by March 2009.

But the Public Information Officer (PIO) did not respond to his April 2009 application in time. After the hearing at the First Appellate Authority (FAA) in May 2009, the application got misleading and incomplete information.

“They did give information of grass beds, but not the locations of the work. It was impossible to see if the work was completed,” said Prabhu.

There was no information of the 164 iron grill tree guards for which money was already paid. The money set aside for the guards is 25% of entire amount. When he complained to the ward officer and deputy superintendent of gardens, it got known that around 20 guards were put and some petty penalty was imposed on the contractor. There is still no information to conduct the audit, a frustrated Prabhu said.

When contacted, H. Kale, Assistant Commissioner, F/ South ward, said, “The file is not in my hand anymore. It has been given to some other officers. We have slapped a fine of Rs.50,000 on the contractor.”

Skywalks in Mumbai?:

Even as Mumbaikars question the need for so many sky-walks in the city, reply given to a query under the Right to Information Act is an eye-opener. Each of the 67 sky-walks in Mumbai have been proposed by an elected representative — an MP, MLA or a corporator. In fact, there are cases where work on skywalk stopped because the local representatives initially supported it and then changed their stance, following opposition from sane people. Nearly all the requests have been made orally by elected representatives, stated the RTI replies to the Grant Road citizen Arvind Dagha’s queries.

Construction of 67 skywalks at a cost of Rs.1.400 crore has been taken up. Initially, around 50 skywalks were to be constructed at the cost of Rs.600 crore. That number was later increased to 67. A. K. Pehal, in charge of the skywalk project, said they were being constructed only after carrying out a study.

Stop attacks on RTI activists?:

In his Budget speech, Union Finance Minister Pranab Mukherjee said the weaknesses in government systems, structures and institutions posed a challenge to policy planners. He said our public delivery mechanisms prevented the country from realising its true potential. The analysis is spot on. So, how do we fix governance?? Transparency and accountability hold the key to good governance. Institutional reforms are necessary to achieve this. The Government plans to set up a financial sector legislative reforms commission and an independent evaluation office to assess public programmes. These are timely. Many enabling legislations have been passed in recent years to make administrators responsible to citizens. But laws alone aren’t enough. Mindsets also must change if the legal safeguards are to become effective.

The experience of the Right to Information (RTI) Act is instructive. The RTI Act has been a radical step to-wards making administration transparent and ac-countable. Civil society groups have used the RTI Act to expose corruption in public administration and ser-vices. But not all sections of society have reacted favourably to the Act. Often, bureaucrats refuse to part with information demanded under the RTI. A worse trend is to attack RTI activists physically. The latest case is from Maharashtra where a Thane-based RTI activist was shot at. The Government needs to curb such crimes. The message must go out that attacks on RTI activists will not be tolerated. Public delivery mechanisms can improve only if the State and civil society work together to plug loopholes in these systems.

(Editorial in The Times of India, dated 4-3-2010)

Sonia forces PM to put RTI amendments on hold?:

Plans to amend the Right to Information (RTI) Act have been put on ice, with Congress bosses taking up with the Government the complaint of the activists that the proposed changes would lead to dilution of the information law. Senior sources said the amend-ments will have to wait till the time the Government dispels fears of rights activists.

Congress Chief Sonia Gandhi wrote to PM Manmohan Singh some time ago, drawing his attention to the fear of activists. The PM and virtually the entire Government feel the amendments are necessary for smooth functioning of the Government and to keep out frivolous complaints, but Singh has agreed to hold consultations with stakeholders (read activists).

According to some reports, Singh is also in favour of excluding the office of the CJI from the RTI Act ambit. The amendments proposed by the PM would keep the office of the CJI out of the purview of the Act. However, Sonia Gandhi has opposed any such amendments.

BCAJ Admin

PART C: Information on & Around

In the issue of June, 2013 in this column, it was reported that as a consequence of 97th Amendment to the Constitution the Co-operative Societies become Public Authorities and get covered under RTI. Recently the Supreme Court passed a judgment as noted below, which has given impression that SC has held that Co-op. Societies are not so covered. Mr. Vijay Kumbhar has now analysed the judgment as under:

Co operative societies not out of ambit of RTI

The manner and timing of reporting regarding Supreme Court’s (SC) judgement (CIVIL APPEAL NO. 9017 OF 2013) about co-operative sugar factories (CS) is amazing. In many news papers they have published date of judgement as 15th October. Actually it was given on 7th October. At least people concerned with RTI knew about it but it was not discussed thoroughly. On 9th of October Anna Hazare and Medha Patkar alleged about Rs. 10,000 crore scam in the sale of the co-operative sugar factories purchased by the political leaders across parties in Maharashtra. After that, a lot of news items appeared in the media. That stunned the government as well as cooperative mafias .Then suddenly news appeared in the media “Cooperatives out of bounds of RTI, rules Supreme Court”.

If read carefully it is clear that SC has only decided about who should provide the information, and it has made it clear that Registrar of Cooperatives (RoC) is duty bound to provide the information irrespective of whether CS is substantially financed or not. Before one draws any conclusion let us study some of the paragraphs of the said judgement. In para 12 SC says, we are in these appeals concerned only with the cooperative societies registered or deemed to be registered under the Co-operative Societies Act, which are not owned, controlled or substantially financed by the State or Central Government or formed, established or constituted by law made by Parliament or State Legislature

It is very evident from the above para that this judgement is not applicable to only societies mentioned above. Then how one can say that due to SC judgement all societies have come out of RTI ambit.

In para 52, SC says Registrar of Cooperative Societies functioning under the Cooperative Societies Act is a public authority within the meaning of Section 2(h) of the Act. As a public authority, Registrar of Co-operative Societies has been conferred with lot of statutory powers under the respective Act under which he is functioning. He is also duty bound to comply with the obligations under the RTI Act and furnish information to a citizen under the RTI Act.

Information which he is expected to provide is the information enumerated in Section 2(f) of the RTI Act subject to the limitations provided under Section 8 of the Act. Registrar can also, to the extent law permits, gather information from a Society, on which he has supervisory or administrative control under the Cooperative Societies Act. Consequently, apart from the information as is available to him, under Section 2(f), he can also gather that information from the Society, to the extent permitted by law. Registrar is also not obliged to disclose that information if those information fall under Section 8(1)(j) of the Act. No provision has been brought to our knowledge indicating that, under the Cooperative Societies Act, a Registrar can call for the details of the bank accounts maintained by the citizens or members in a cooperative bank. Only that information which a Registrar of Cooperative Societies can have access under the Cooperative Societies Act from a Society could be said to be the information which is “held” or “under the control of public authority”. Even that information, Registrar, as already indicated, is not legally obliged to provide if that information falls under the exempted category mentioned in Section 8(j) of the Act.

Apart from the Registrar of Co-operative Societies, there may be other public authorities who can access information from a Cooperative Bank of a private account maintained by a member of Society under law, in the event of which, in a given situation, the society will have to part with that information. But the demand should have statutory backing.

It is clear from above para that whatever information the register has and can gather from cooperative societies, he/she is duty bound to furnish it to applicant under RTI act , irrespective of whether society is substantially financed or not. The only binding on the register is to take into consideration section 8 of the RTI act. However that burden was already there. In para 53, SC says, ‘Consequently, an information which has been sought for relates to personal information, the disclosure of which has no relationship to any public activity or interest or which would cause unwarranted invasion of the privacy of the individual, the Registrar of Cooperative Societies, even if he has information, is not bound to furnish the same to an applicant, unless he is satisfied that the larger public interest justifies the disclosure of such information, that too, for reasons to be recorded in writing’. From reading of above para it is well clear that SC has said that even if information is personal one if there is larger public interest RoC may provide that to applicant.

In para 40 SC says The burden to show that a body is owned, controlled or substantially financed or that a non-government organization is substantially financed directly or indirectly by the funds provided by the appropriate Government, is on the applicant who seeks information or the appropriate Government and can be examined by the State Public Information Officer, State Chief Information Commission, Central Public Information Officer etc., when the question comes up for consideration. A body or NGO is also free to establish that it is not owned, controlled or substantially financed directly or indirectly by the appropriate Government.

In para 41 SC says Powers have been conferred on the Central Information Commissioner or the State Information Commissioner under Section 18 of the Act to inquire into any complaint received from any person and the reason for the refusal to access to any information requested from a body owned, controlled or substantially financed, or a non-government organisation substantially financed directly or indirectly by the funds provided by the appropriate Government.

From reading para 40 and 41 together one can easily draw the conclusion that if Cooperative society or NGO body is owned, controlled or substantially financed then PIO, Information Commission have powers to decide over that. In other words if they come to conclusion that concerned CS or NGO is owned, controlled or substantially financed directly or indirectly by the funds provided by the appropriate Government they can declare such organisation a public authority. Otherwise registrar of cooperatives is duty bound to furnish the information. 240 (2013) 45-B BCAJ In other words Supreme Court in its recent judgment has only decided about who should provide the information under RTI Act , is it Registrar of co operative societies or direct societies and also answered that RoC is duty bound to supply the information in case CS is not substantially financed or ask society to appoint PIO if satisfied.

Against above opinion based on analysis made by Shri Vijay Kumbhar, some hold the view otherwise. Finantail Express (dated 23.10.2013) has reported as under: Cooperative societies including coop banks will not fall within the definition of ‘public authority’ for purposes of the Right to Information Act, and hence the Registrar of Cooperative Societies is not liable to provide information to the general public under this law, the Supreme Court has held in the case, Thalappalam Service Cop Bank Ltd vs state of Kerala.

It said that the powers exercised by the Registrar and others under the Cooperative Societies Act are “only regulatory or supervisory” and will not amount to dominating or interfering with the management or affairs of the society so as to control it. Besides, “the societies are not statutory bodies and are not performing any public functions and will not come within the expression ‘sate’ within the meaning under Article 12 of the Constitution of India,” it added.

Recognizing that the right to privacy was a sacrosanct facet of Article 21 of the Constitution, the apex court said that if the information relates to personal information, the disclosure of which has no relationship to any public activity or interest or which would cause unwarranted invasion of the privacy of the individual, the Registrar, even if he has got that information, is not bound to furnish the same to an applicant, unless he is satisfied that the larger public interest justifies the disclosure of such information, that too, for reasons to be recorded in writing.

In this case, various coop societies had challenged the full Bench of the Kerala High Court’s judgment that upheld the state government’s circular and brought coops within the RTI ambit. The state government claimed the circular to be in the larger public interest so as to promote transparency and accountability in the working of every co-operative society in Kerala.

BCAJ Admin

PART D: Good Governance

Pavan Varma, an author and a former diplomat and corruption adviser to the Bihar Chief Minister wrote in the Times of India on Sunday 18th March 2013, under the title, “A Republic in Crisis” Excerpts thereof: There is an uncomfortable fact which we are unwilling to confront. And that is that our young republic is facing a systemic crisis.

This crisis is not about an individual. It is not about any one party. It is not about one international economic showdown. And, it is not a crisis which will be necessarily resolved by the next general elections, or the ones after that. The crisis that we are in is that two fundamental pillars of our republic, governance and democracy, which should be complimentary, have become antithetical to each other. This was not a situation envisaged by our Constitution makers. Their presumption was that democratic election would throw up a party, or a combination of parties, which on the basis of a stable majority would govern effectively in order to give back to the people what they had promised.

Governance and democracy must be complimentary to each other. There could be better solutions to the one I have proposed. But the blunt truth is that we must find a solution. We cannot afford to lose any more time. The people of India will not wait anymore.

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BCAJ Admin

PART C: Information on & Around

BMC & RTI:

If all goes as planned, there will be no need to put an RTI application to get information about the Brihanmumbai Municipal Corporation (BMC) as the civic body, in a year’s time, plans to digitise each and every document and put it up on their website for all to see. Not a small feat as they have over 80 Crore papers to be displayed online.

“All these documents are important and they are so old that even turning pages can damage them. If we want to preserve these documents, getting them digitised is the only way,” said a senior civic official. “Once the digitisation is done, there will be no need to submit a right to information (RTI) application for obtaining information regarding the BMC,” said Sitaram Kunte, Municipal Commissioner.

Nagpur SIC:

On Saturday 16th March, Times of India reported: SIC heard three appeals and levied a fine of only Rs. 18,000 in all the last six months and so on. The State Information Commission (SIC) bench in Nagpur seems to be doing everything to blunt the Right to Information (RTI) Act, 2005, a legislation that has empowered common people against the system. Next day on Sunday, 17th March, Times of India issued clarification as under:

The state information commissioner, Bhaskar Patil, has pointed out that the headline ‘Nagpur info chief clears 3 of 1,849 pleas in 6 months’ is incorrect. He stated that the SIC had heard and disposed of 1,978 appeals and complaints from June to December last year, out of which it levied monetary fine in three cases. The SIC had also recommended ‘disciplinary action’ on 41 cases out of 1,849 second appeals and 485 complaints. The error is regretted.

Corruption and RTI:

The Central Vigilance Commission (CVC) has slammed the Department of Revenue in the Ministry of Finance and two of its key organs – the Central Bureau of Direct Taxes (CBDT) and the Central Board of Excise and Customs (CBEC) – for shielding its allegedly corrupt senior officials.

In response to an RTI application filed by Economic Times, CVC has revealed the minutes of all annual review meetings held by it in 2012 with Central Vigilance Officers (CVOs) of various government sectors. The minutes of such meeting held on 27th July, 2012, with CVOs of the Revenue and Transport Sector reveal that CVC came down hard on the Department of Revenue, CBDT and CBEC for going slow against corruption. The minutes clearly state that CVC Pradeep Thakur said at the meeting that there is a “perceptible tendency” in the Department of Revenue of “trying to protect particularly senior officers” in the organisation. CVC asked Shashi Shekhar, the additional secretary (revenue) and CVO of Department of Revenue, to make concerted efforts to liquidate the pendency of corruption complaints, saying the commission was concerned over the inordinate delay in implementation of its advice for action.

Shielding top officers is a phenomenon in CBDT too, the minutes indicate. “CVC expressed its concern at the inordinate delays being caused by CBDT in finalising regular department action cases, implementation of CVC’s advice and in grant of sanction for prosecution. CVC stated that such delay indicated reluctance of the administration in taking action against senior officials and such delays, especially in grant of sanction for prosecution, are completely unacceptable. CVC also expressed its displeasure at the arbitrary fashion in which adjudicating officers are passing the orders while deciding cases of higher revenue implications,” the minutes say. CVC was similarly anguished about the large number of pendency of action against allegedly corrupt officials in CBDT, saying Supreme Court has recently made it mandatory for prosecution sanction to be granted within three months and officers intentionally delaying the same to be held accountable.

As per the CVC annual report for 2011, CBDT and CBEC were still to take action against a total of 474 corrupt officers against whom CVC advised action over six months ago. 330 such cases were pending in CBEC while 144 cases were pending in CBDT. In comparison, CBEC took action only against 69 of its officers last year while CBDT acted against just eight officers.

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BCAJ Admin

PART B: RTI Act, 2005

Excerpts from Mrs. Aruna Roy’s letter to RTI Users: The importance of a National Compaign for people’s Right to Information (NCPRI):

“As we proceed into the eighth year of the use of the RTI we need to look – not only at the shortcomings which we always do-but at our immense gains. Not so much to compliment ourselves as to strengthen our resolve to carry on with millions of our struggles that its use has spawned. The RTI has forced the re-distribution of power, demanded participatory decision-making and specific accountability. It has legitimised questioning as a part of decision-making. It has questioned representative democracy and pushed the system to acknowledge, though reluctantly, that it has an obligation to the sovereign citizen.

Sometimes, one has the good fortune to be a part of campaign for an issue that has a seminal impact on the lives of people. In all our collective dreams we define a space where equality will be an accepted norm and justice accessible. We have all thought and expressed the desire of a corruption-free India, where arbitrary use of power can be questioned and addressed. The Right to Information Act has addressed and facilitated the realisation of some of these dreams.

There was to begin with the unstated understanding that even confronting corruption needed an equal emphasis on the arbitrary use of power. In other words, RTI was fundamental to a democracy, and democracy, in order to stay alive with its principles intact, needed the RTI.

Once the law was made, the NCPRI accomplished a basic objective and many of its constituent members withdrew to the background. Many users, groups and organisations have grown. All of us continue to be amazed at the number of users, and the thousands of ways in which the law has empowered people to access food, shelter and justice, individually and collectively.It has been and continues to be a revelation of the ingenuity of the concerned citizen-user. An acid test of any legislation is its continued use even after meeting with road blocks and deliberate attacks, in this case even on our lives. RTI has addressed that challenge with persistence and diligence. We always said the devil lies in the details. The RTI users have continued to pursue and conquer these devils! The RTI empowers the citizen, or citizens, as the case may be, to challenge and question the State as part of their regular life, activities and campaigns.

Individual users all over the country have already revolutionised the interaction with the State with their imaginative use of the RTI. If we manage to work together, our collective work may have a great impact on India’s ethical future. It may force the system to keep its constitutional promises and forever change the face of governance in this country. It is true that India is not one of the easiest countries to live in, nor one of the most efficient bureaucracies to deal with. Yet, we live and must claim our rights as citizens and continually challenge unethical action, from the individual to all of its citizens and in every aspect through which the constitution guarantees our sovereignty.”

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BCAJ Admin

PART C: Information on & Around

RTI and Consumer Protection Act:

The Pune District Consumer Disputes Redressal Forum (Consumer Court) has ordered an educational institution to pay compensation to an RTI applicant, a former employee of the institute, for delay in providing him information he had sought to buttress a case he had filed in the Bombay High Court.

The consumer forum ordered the Information Officer and the principal of Deccan Education Society’s Technical Institute to pay Rs.15,000 to Haribhau Kakade for not providing the information despite a state information commission order to do so. The institute argued that Kakade was not a ‘consumer’ as per the definition in the Consumer Protection Act. The Court panel of president of the forum Anjali Deshmukh and member S. K. Kapse disagreed and relied on a National Consumer Rights Commission order that stated, “In our view, therefore the State Commission was wrong while holding that once the complainant had availed the remedy against which appeal was provided, he could not maintain a complaint under the Consumer Protection Act.” The Consumer Court stated that although it cannot direct the institute to make the documents available to Kakade, it can order the institute to pay a compensation for mental and physical agony faced by him. The Court ordered the institute to pay Rs. 15,000 as compensation and Rs.1,000 as litigation cost. (As reported on 9-12-2011 in Indian Express)

MMRDA for furnishing certain information

Information comes at a price, but Thane resident Omprakash Sharma learnt that the cost could be prohibitive when the information concerns public issues and is to be given by a public body like the Mumbai Metropolitan Region Development Authority (MMRDA).

The state-run agency has told Sharma to pay Rs. 50,000 for copies of a study report on transportation strategies in Thane and Raigad districts.

The Right to Information (RTI) Act activist had on November 14 filed an application with the MMRDA, inquiring if the agency had conducted any surveys on the monorail or metro in the Mumbai Metropolitan Region (MMR) area. Sharma offered to pay for the study report.

MMRDA promptly replied to the query on November 26, stating that a comprehensive transportation study for the region was carried out by the agency along with M/s. Lea Associates, and the study report was ready by 2008. Another report, on the proposed master plan for a monorail in Thane and Raigad, was also prepared and is with the MMRDA.

However, Sharma was asked to pay up Rs.50,000 for securing these reports as they are said to be ‘priced reports’. “It shows how innovative they could be in keeping away citizens and activists who seek information using the RTI Act”, Sharma said.

He added that the report is now MMRDA property and ideally it should follow the RTI Rules, which state that the information seeker be charged Rs.2 for every copy which is photocopied.

“Alternatively, the agency could charge me Rs.50 for transmitting the report on a floppy or disc” Sharma said.

Statement on RTI in Rajya Sabha:

Minister of personnel, public grievances and pensions, V. Narayanasamy replied in the affirmative on a query in the Rajya Sabha regarding concerns raised by Ministers on the RTI Act affecting the Government’s functioning.

When asked about bureaucrats expressing apprehension about putting their view on controversial issues because of the Act, the Minister said:

“Some concerns have been expressed that the improper use of RTI Act and indiscriminate and impracticable demands for disclosure of sundry information unrelated to transparency and accountability in the functioning of public authorities may adversely affect the efficiency of administration.”

On a separate question, he said the Central Information Commission has a pendency of 20,232 cases as on 1st September.

Non-refund of deposits by the college:

In the elation of securing admission to a college of their choice, students often forget to check that the miscellaneous fees and deposits paid to the institution are actually refundable. These deposits are taken by the institute as cover in the event of any breakages or damage to the facility caused by the student. And these deposits are refundable after completion of the course, however a majority of students are unware that they are entitled to the refund. A former student of Ramniranjan Jhunjunwala (RJ) College in Ghatkoper approached the management to claim the refundable deposit. Surprisingly, his request to the college administrators was met with uncooperativeness. Fed up with the tactics of management, the ex-student who was made to run from pillar to post to recover his security deposit exposed the college through an RTI query.

In August this year, Singh sought information through an RTI, querying why the management is not refunding the student’s money. But the management refrained from giving him a reply. On 1st, October, Singh then appealed to a higher authority in the college. A week later, the college replied that the management had refunded money to all those students, who have asked for a refund. The authorities also presented a list of 14,000 students who had paid deposits to the college. However, more than 30% of the students did not receive their dues, which means that the college had pocketed approximately Rs.45 lakh in the last 10 years.

“It’s shocking and shameful for our educational system that the college is not interested in refunding the money. The college should be investigated and action should be taken against those guilty of misappropriation,” said Singh.

Following the RTI revelation, on 23rd November, Singh wrote (copy with MID DAY) to the Education Minister, State Education Minister, Governor and the Vice-Chancellor of Mumbai University to look into the matter.

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BCAJ Admin

PART B: RTI act , 2005

Confidentially can’t hide Information: SC strengthening the arms of the Right to Information Act in a manner that thwarts the Government’s procedural antics to stall information regarding corruption and human rights violations by investigation agencies under the garb of confidentiality, the Supreme Court has ruled that a Notification issued by a State for that purpose in mind can’t be made effective from retrospective date.

In a significant judgment on Monday, the Apex Court held that the Notifications under the RTI Act cannot apply retrospectively. It means, information in response to an RTI query can’t be denied merely because a Notification has been issued after the date of application.

The right of an aggrieved applicant must be decided on the basis of the law as it stood on the date when the request is made. “Such a right cannot be defeated on the basis of a Notification if issued subsequently at a time when the controversy about the RTI is pending before the Court,” a Bench of Justices Asok Kumar Ganguly and Gyan Sudha Misra ruled while disposing of an appeal filed by a resident of Manipur, Wahangbam Joykumar, who had moved the State in February, 2007 under RTI seeking information regarding the magisterial enquiries initiated by the State from 1980 to 2006.

The Government denied this information on the basis of Notification issued in 2007.

Allowing Joykumar’s appeal, the Bench asked him to seek the requisite information now as it directed the State to provide him the information.

Stressing the importance of the RTI Act, the Apex Court said its preamble would show that it “is based on the concept of an open society. Way back in 1975, the Apex Court had underscored the need of an ‘open government’ and observed that “the people of this country have a right to know every public act, everything, that is done in a public way, by their public functionaries”.

It had also said that people are entitled to know the particulars of every public transaction in all its bearing. The right to know is “derived from the concept of freedom of speech though not absolute, is a factor which should make one wary, when secrecy is claimed for transaction which can rate, have no repercussion on public security”.

It also warned saying that “to cover with veil of secrecy, the common routine business, is not in the interest of public. Such secrecy can seldom be legitimately desired”.

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PART d: Good Governance

Audacity of Ideas in the age of Resentment:

Thank the ancient Greeks for giving us the idea. Two thousand and six Hundred years on, trust the modern Greeks for showing the world how to mess up the idea of democracy. Today the “bailout” nation of the Eurozone is up for sale. literally: The cash-starved government is even selling state buildings; and the Emir of Qatar is buying six islands off Ithaca. Amidst the doom, the neo-Nazi party that promises salvation calls itself Golden Dawn. Greece is just one example of how the best form of governance is capable of offering the worst scenario of freedom to a people.

Narendra Modi (Gujarat Chief Minister) on governance:

“Democracy should not just be a five-year contract given to a leader by way of votes. It must be a participative process in which people work with the government to ensure better governance and greater development.”

Government is file, governance is life; Government is all about power, governance is about empowerment.

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PART B: RTI Act, 2005

Review petition made by Ms. Aruna Roy and Mr. Shailesh Gandhi in the matter of Order of the Supreme Court in Namit Sharma’s case.

The judgment in Namit Sharma’s case had had resulted in stopping the functioning of five State Information Commissions.

Now the Supreme Court has passed the following order:

O R D E R I.A.NO. 6 in R.P.(C) No. 2309 of 2012

This is an application for stay of the operation of the judgment dated 13th September, 2012 passed in Writ Petition (C) No. 210 of 2012 titled Namit Sharma vs. Union of India reported as 2013 (1) SCC 745 during the pendency of the Review Petition (C) No. 2309 of 2012 titled Union of India vs. Namit Sharma. We have heard learned counsel for the parties and we are not inclined to stay the operation of the entire judgment in Namit Sharma vs. Union of India but we direct that the following directions in sub-paras 108.8 and 108.9 quoted here-in-below shall remain stayed during the pendency of the Review Petition (C) No. 2309 of 2012.

108.8 The Information Commissions at the respective levels shall henceforth work in Benches of two members each. One of them being a ‘judicial member’, while the other an ‘expert member’. The judicial member should be a person RP(C) 2309/2012 etc. 3 possessing a degree in law, having a judicially trained mind and experience in performing judicial functions. A law officer or a lawyer may also be eligible provided he is a person who has practiced law at least for a period of twenty years as on the date of the advertisement. Such lawyer should also have experience in social work. We are of the considered view that the competent authority should prefer a person who is or has been a Judge of the High Court for appointment as Information Commissioners. Chief Information Commissioner at the Centre or State level shall only be a person who is or has been a Chief Justice of the High Court or a Judge of the Supreme Court of India.

108.9 The appointment of the judicial members to any of these posts shall be made ‘in consultation’ with the Chief Justice of India and Chief Justices of the High Courts of the respective States, as the case may be”.

We further direct that wherever Chief Information Commissioner is of the opinion that intricate questions of law will have to be decided in a matter coming before the Information Commissioners, he will ensure that the matter is heard by a Bench of which at least one member has knowledge and experience in the field of Law.

We make it clear that subject to orders that may be finally passed after hearing the Review Petitions, the competent authority will continue to fill up the vacant posts of Information Commissioners in accordance with the Act and in accordance with the judgment in RP(C) 2309/2012 etc. W.P.(C) No. 210 of 2012 except sub-paras 108.8 and 108.9 which we have stayed. This is to ensure that functioning of the Information Commissioners in accordance with the Act and the Judgment is not affected during the pendency of the Review Petitions. We further make it clear that the Chief Commissioners already functioning will continue to function until the disposal of the Review Petitions. I.A.No. 6 is ordered accordingly.

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PART D: Good Governance

• I am lucky to have made my money. After a certain point in time, money cannot make a difference in your life. I feel that it’s not even called charity, it’s about accountability and the responsibility to society.

—PNC Menon (Founder, Sobha Developers)

• At the root of poor governance is our lethargy for change, whether it is in the implementation of schemes or adherence to values. I do not have to remind you how grievously hurt the nation was when a young woman, the symbol of an aspiring nation, lost her life in the brutal assault in India in December last year. As I had said earlier, I repeat and I do believe that it is time to reset our moral compass. The police and investigative organisations can play a crucial role in creating conditions that could engender changes. An alert police force and investigative agency can ensure that no crime goes unpunished. It is important to ensure speedy and thorough investigation of allegations. The prosecution should also be speedy so that the guilty are punished without delay. This would enhance the deterrent value of punishment. It would improve responsiveness, one of the most important features of good governance.

— Pranab Mukharjee, The President

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PART C: Information on & Around

Due to some technical problems, the said opinion is not being published here. Same is posted on the website of BCAS www.bcasonline.org and PGDT rtiforyou.info

RTI in action or inaction?

2007-08

2011-12

Total registered public authorities

1,597

2,314

Submitted returns

1,382

1,593

Requests pending from last year

23K

4.3L

Received in year

2.6L

6.6L

Total

2.9L

10.9L

Disposal %

Rejection %

7.2

8.3

Surprisingly, only 29 ministries/departments out of 66 are providing complete information to the Central Information Commissioner (CIC) on how they handle RTI queries. Out of 2,314 public authorities registered with the CIC some 721 are defaulters – they don’t give information about their response to queries. In 2007-08, a total of 2.6 lakh queries were received. This jumped to 6.6 lakh in 2011-12. But what is revealing is that in 2011-12 over 4.3 lakh queries were carried over from the previous year. The rate of disposal has dipped from 86% in 2006-07 to about 68% in 2011-12.

Illegal new construction in Parel, Mumbai

Uncertainty looming over the fate of illegally constructed buildings such as the apartments at the Campa Cola Compound in Worli and building collapses across the city, it is Parel’s turn to tell another grim tale of real estate malpractices.

Documents obtained under RTI by Mahesh Vengulkar, include various incriminating documents about the structure.

The building is very old and was purchased for Rs. 3 crore by a builder some years ago. “Under the guise of carrying out repairs to the dilapidated structure, an unauthorised fourth floor was added to it and individual flats are being sold in the market for around Rs. 7 crore each,” alleged Vengulkar.

Out of 22 under-construction flats on the illegal fourth floor, added Vengulkar, eight flats are allegedly complete and occupied. “The builder owes the government over Rs. 43 crore as Property Tax as per notices put up on the building last December. We are demanding a fresh structural audit from the Brihanmumbai Municipal Corporation (BMC) and are sure that the building will be deemed unfit for habitation and its occupants will be rendered homeless,” said Vengulkar.

He added that it was surprising how the builder constructed an illegal floor and flats in spite of numerous complaints made over the years.

CBSE flouts RTI Act:

The decision by the Central Board of Secondary Education (CBSE) to charge Rs. 500 to release photocopy of Optic Magnetic Reader (OME) sheet, answer key and calculation sheet of students who appeared for the Joint Entrance Examination (Main) 2013 is the violation of RTI Act.

As for the violation of the RTI Act, the CBSE has asked students who have already applied for answer keys through the RTI to reapply by paying Rs. 500. The RTI Act stipulates that only Rs. 10 can be charged for application and an additional Rs. 2 for photocopying.

BCAJ Admin

PART B: RTI Act, 2005

Landmark development for RTI application:

The Government of India has announced that Online RTI facility is to be extended to all central ministries. Indian citizens will now be able to seek information from all central ministries by filing their RTI applications Online.

The Government has launched an exclusive portal – https://rtionline.gov.in- for this purpose, initiating this facility currently only for the questions asked from the Ministry of Personnel. All other central ministries will be covered under it within a month.

“This portal, developed by NIC*, is a facility for Indian citizens to online file RTI applications and first appeals and also to make online payment of RTI fees”, said a note issued by the Department of Personnel and Training (DoPT).”

*NIC: National Infotech Centre

It said, “The prescribed fees can be paid through Internet banking of State Bank of India and its associate banks as well as by credit or debit cards of Visa or Master, through the payment gateway of SBI linked to this site”.

The entire website is prepared in such a way that the system would provide online reply to all RTI applications. This facility is, however, presently not proposed to be extended for field offices or subordinate offices.

The Right to Information Act, which was enacted in 2005, mandates timely response (within 30 days) to citizens’ requests for government information. The information seeker has to pay a fee of Rs. 10 for getting the information.

“Arrangements have been made to provide training to the RTI nodal officers, RTI Cell officials and the NIC or information technology personnel attached with the ministries and departments within the next two to three weeks”, said the DoPT.

Giving details of the guidelines for the information seeker, the department said that the text of the application that can be uploaded at the prescribed column (on the website) was, at present, limited to 500 words only. “In case an application contains more than 500 words, then it can be uploaded as an attachment”, it said.

In case additional fee is required, covering the cost for providing information, the CPIO will intimate the applicant about the same through the portal. The first appeals filed through the website will also reach electronically to the ‘Nodal Officer’ of the DoPT, who would transmit the appeals to the concerned First Appellate Authority (FAA).

RTI and Co-operative Societies:

97th Amendment to the Constitution

Said amendment w.e.f. 15-02-2012 amends 3 articles:

1. In Article 19 (article of fundamental rights) the term “Co-operative societies” is added in clause (1)(c) thereof.

2. Article 43-B is inserted:

It reads: Promotion of co-operative societies – The State shall endeavour to promote voluntary formation, autonomous functioning, democratic control and professional management of cooperative societies.

3. Part IX B is inserted:

It provides certain guidance on State Bye-laws of Co-operative Society.

The amendment 3 above has been struck down by the High Court of Gujarat. The final para of the order reads as under:

“We, therefore, allow this Public Interest Litigation by declaring that the Constitution [97th amendment] Act, 2011/ inserting part IXB containing Articles 243ZH to 243ZT is ultra vires the Constitution of India for not taking recourse to Article 368(2) of the Constitution providing for ratification by the majority of the State Legislatures. This order, however, will not affect other parts of the Constitution [97th amendment] Act, 2011. In facts and circumstances, there will be no order as to costs.”

We, many RTI activists, are of the opinion that by virtue of “Co-operative Societies” having been inserted in Article 19 of the Constitution as part of 19(1)(c), they become body of self-government established or constituted by or under the Constitution u/s. 2(h) of the RTI Act.

Bombay Chartered Accountants’ Society referred the matter to one Senior Advocate who has given opinion that co-op societies become a Public Authority as defined under 2(h) of the RTI Act.

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PART A: Orders of CIC

Appeal:

The appellant before the Commission complained that FAA did not give him the opportunity of hearing by which he could have explained the nature of information sought.

Decision Note:

“The Commission directs the CPIO to furnish the information to the appellant, free of cost, within 15 days from the date of receipt of this Order.

As regards the appellant’s submissions that he was not given an opportunity of personal hearing by the FAA, it is needless to say that rendering an opportunity of hearing to the parties is a fundamental principle of jurisprudence. It is conducive to fairness and transparency and accords with the principles of natural justice. An opportunity of hearing to the parties also brings greater clarity to the adjudicating authorities. This Commission always gives an opportunity of hearing to the parties but this does not appear to be usually done by the FAAs, as probably there are practical difficulties therein, partly arising out of the number of appeals involved and partly due to the limited time frame in which the matters are required to be decided. In view of this, we would only like to suggest that the FAA should, as far as possible, give the appellant, including the third party, if any, an opportunity of hearing specially if he so requests, without forgetting that the essence of the RTI Act is to provide complete, correct and timely information to the appellant.”

[Pradeep A. Ingole vs. CPIO, Department of Posts, Navi Mumbai Division, Panvel: Decided on 03-04- 2013. Citation RTIR II (2013) 55]

Fiduciary Relationship (Section 8(1)(e) of the RTI Act):

The appellant before the Commission submitted that the sudden fall in the share prices of the ICICI Bank had been widely reported and he wanted to know about the entire matter, by inspecting the records generated by the SEBI in the course of its investigation. He could not understand why the CPIO has not allowed him to inspect the records. In response, the respondent submitted that the press release issued by the SEBI contained whatever details about the entire matter that could have been disclosed without breaching the confidentiality of the information received from various other entities including stock exchanges and, thus, he justified the response of the CPIO.

CIC in his Order stated:

“We have carefully considered the facts of the case. Admittedly, the newspapers had widely reported about the fall in the share price of the ICICI Bank. As the respondent informed us, the Bank itself had also complained to the SEBI following which a preliminary enquiry had been made. Even if the substance of the enquiry has already been placed in the public domain through a press release, we do not see any particular reason why the rest of the records and documents received/generated by the SEBI in this regard should not be disclosed to the public. The ICICI bank is a major financial institution in the country. A sudden fall in its share price, for whatever reason, has wide implications for the general public and also for millions of investors. Ordinarily, all such information should be placed in the public domain so that people know for sure why this had happened and what implications it would have for the investors. Needless to say, there cannot be a better public interest than this. Therefore, we do not find much merit in the decision of the CPIO to invoke the exemption provision contained in s/s. 1(e) of section 8 of the Right to Information (RTI) Act. Even in that s/s., it is very clearly stated that such information can still be disclosed if a larger public interest will be served by that.”

“Keeping all this in view, we are of the opinion that the Appellant should be allowed to inspect all the relevant records relating to this particular case. We direct the CPIO to invite the Appellant on any mutually convenient date within 15 days of receiving this order and to show him the records and documents, including file noting and correspondence, relating to this matter. Needless to say, if these records and documents contain any commercial confidence of any third party entity, the CPIO shall take steps to serve/mask those records and documents before allowing any inspection.”

[Dr. Terence Stephen Nazareth vs. CPIO, SEBI, Bandra (E), Mumbai: 400 051: Decided on 20-03-21013: Citation: RTIR II (2013)24]

Personal Information – Section 8(1)(j) of RTI Act:

Vide RTI dated 27-06-2011, the appellant had sought EOU Balance Sheet and P/L account details of M/s. Natural Remedies for the period 2004-2010.

CPIO vide letter dated 15-07-2011 informed the appellant that as the information related to a third party their views were sought. The third party objected to the disclosure of the information, as it would affect the competitive and commercial nature of the business of the Company and that litigation was pending between the Company and the applicant before the High Court of Karnataka. The information was denied u/s. 8(1)(e) of the RTI Act.

CIC in the order stated:

“Submissions made by the appellant and public authority were heard. The CPIO submitted that the documents sought by the appellant i.e. the balance sheet and profit and loss statement are part of Income Tax returns which have been held to be exempt from disclosure by the Supreme Court in the case of Girish Ramchandra Deshpande. The appellant submitted that the CPIO has not followed procedures and that the information sought by him was in larger public interest. In response to a query from the Commission, the appellant submitted that he was involved in litigation with the said company.”

“The Hon’ble Supreme Court in the case of Girish Ramchandra Deshpande vs. CIC, [RTIR IV (2012) 2016 (SC)], has held that Income Tax Returns are personal information exempt from disclosure u/s. 8(1)(j) of the RTI Act, unless a larger public interest is involved. In the light of the decision of the Hon’ble Supreme Court, the Commission concurs with the decision of the CPIO/AA.”

[Kartikey Agarwal vs. DCIO, Circle 12(2) and Addl. CIT, Range – 12, Bamgore: Decided on 01-04-2013: Citation RTIR II (2013) 57]

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PART D: good governance

• It is in the supervisory neglect of routine tasks that the seeds of poor governance lie. Any supervisory authority must come together with supervisory responsibility. For example, chief commissioners of income tax should, by this principle, have authority- and therefore the corresponding responsibility- to deploy their subordinate commissioners as they find fit. As things stand, though, it is the central taxes board and the minister concerned who exercise this authority. Yet, if the officers are then discovered to be negligent in their new posts, the board or minister are not held even remotely answerable. On the other hand, since chief commissioners do not decide the commissioners’ deployment, they can claim helplessness.

• Poor governance arises essentially from corrupt practices and negligence or dereliction in official conduct. Both can be tackled, if supervisory responsibility is effective.

(From the article under the title “India’s bureaucracy works in feudal matrix. Little wonder corruption and poor governance flourish in our country”, by Anil Dhar, a freelancer)

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PART C: Information on & Around

• Information on Emergency:

1) Believe it or not, the government has claimed that it does not have any documents pertaining to the Emergency period. Neither the Prime Minister’s office nor the home ministry have given any response to RTI activist Manoranjan Roy who sought Information on the Emergency.

2) Earlier, V Narayanasamy, minister of state in the PMO, had acknowledged that official records on the Emergency are “not available in the PMO”. “A thorough search was made to retrieve and trace records of correspondence between the then PM and the President of India relating to proclamation of emergency. However, no such records were found in the PMO,” Narayanasamy said. The Central Information Commission (CIC) had then sought an investigation into the matter and said the government must “ensure that these records are retrieved or traced, wherever they might be, and should be preserved appropriately for citizens so that they can access them.”

Two years on, the reply to Roy’s query reveals that the documents are still missing. The home ministry has blamed the National Archives of India saying that it is the “repository of non-current records”. But the archives department officials say otherwise. A member of archival advisory board of the National Archives of India, on the condition of anonymity, said, “While the ministries are bound to transfer all records for archival, no records on the emergency were transferred to us for safe-keeping.”

• Mumbai Cricket Association (MCA) ground:

On the recommendation by NCP supremo Sharad Pawar, BMC handed over 39,950 sq.m. plot to the MCA to promote cricket without observing rules connected with such allotment of land. This information was obtained by Anjali Damania of AAP through the RTI route.

Damania alleges that rules did not allow for the plot to be developed. The BMC was supposed to give only operational rights to MCA. So, how could the MCA raise Rs.270 crore by way of membership fees on a BMC plot?”

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PART B: RTI Act, 2005

• This feature in BCAJ is to report on matters connected with RTI. However, in this issue 1 report on “The Rajasthan Right In Hearing Act, 2012” (RRHA) which received the assent of the Governor on 21-05-2012. This is relevant to the RTI Act. Under this Act, duties are cast on the Public Hearing officer (similar to the Public Information officer under the RTI Act). Section 4(5) provides: The Public Hearing Officer on receipt of a complaint u.s/s. (1) shall, within the stipulated time limit, provide an opportunity of hearing to the complainant and after hearing the complainant, decide the complaint either by accepting it or by referring it to an authority competent to grant the benefit or relief sought for or by suggesting an alternative benefit or relief available under any other law, policy, order, programme or scheme or by rejecting it for the reasons to be recorded in writing and shall communicate his decision on the complaint to the complainant within the stipulated time limit. Section 5(3) provides: Every public authority shall be responsible for the development, improvement, modernisation and reform in redressal of grievance system including redressal of grievance through information technology.

Section 7: Penalty provisions read:

(1) Where the second appellate authority is of the opinion that the Public Hearing Officer has failed to provide an opportunity of hearing within the stipulated time limit without sufficient and reasonable cause, it may impose on him a penalty which shall not be less than five hundred rupees but which shall not exceed five thousand rupees:

Provided that before imposing any penalty under this s/s., the person on whom penalty is proposed to be imposed shall be given a reasonable opportunity of being heard.

(2) The penalty imposed by the second appellate authority u.s/s. (1) shall be recoverable from the salary of the Public Hearing Officer.

(3) The second appellate authority, if it is satisfied that the Public Hearing Officer or the first appellate authority has failed to discharge the duties assigned to him under this Act, without assigning sufficient and reasonable cause, may recommend action against him under the service rules applicable to him.

The Rajasthan Right of Hearing Rules are enacted on 09-06-2013 some of the rules are:

Rule 11: No fee shall be payable along with complaint, memo of first appeal or second appeal and revision application per Rule 11.

Rule 20 provides for Establishment of Information & Facilitation Centre: It reads (1) The State Government may establish Information and Facilitation Centre which may include establishment of customer care centers, call centers, help desks and people’s support centers or any other e-mitra, Rajiv Gandhi Seva Kendra or other institutions authorised to act as Information and Facilitation Center.

(2) If the complaint is received by any Information and Facilitation Centre authorised for receiving complaints, the In-charge of the Information and Facilitation Centre shall transfer the same immediately to the Public Hearing Officer concerned and the time taken in such transfer shall not be counted in the stiputed time limit.

(3) The unique registration number given on complaint and action taken on complaint or transfer of complaint may also be made online for efficient and effective hearing of grievance of the people.

(4) A State wide net work may be developed by the State Government to receive, register and monitor the complaints.

This RRHA is very powerful Act, similar to the RTI Act. To note that it is only for complaints against Authorities in the State of Rajasthan. It is hoped that other states legislate similar law.

It may also be noted that the Central Government has introduced the Bill under the title:

THE RIGHT OF CITIZENS FOR TIME BOUND DELIVERY OF GOODS AND SERVICES AND REDRESSAL OF THEIR GRIEVANCES BILL, 2011

Unfortunately it is not enacted yet even though introduced in 2011 as we know that parliament does not function much due to political disputes between parties. Once such an Act is enacted, the great relief will be available to the citizens and it would be a supplement to the RTI Act. I reproduce clauses 3 & 4 of the Bill:

3. Subject to the provisions of this Act, every individual citizen shall have the right to time bound delivery of goods and provision for services and redressal of grievances.

4. (1) Every public authority shall publish, within six months of the commencement of this Act, a Citizens Charter specifying therein all the category of goods supplied and services rendered by it, the time within which such goods shall be supplied or services rendered.

(2) Without prejudice to the generality of the provisions contained in s/s. (1), the Citizens Charter shall provide all or any of the following matters, namely:-

(a) the details of all the goods supplied and services rendered by the public authority and the name of person or agency through which such goods are supplied or services rendered and timings during which such services are supplied or services rendered;

(b) the conditions under which a person becomes entitled for goods or services, and the class of persons who are entitled to receive such goods and avail services;
(c) the quantitative and tangible parameters (including weight, size, frequency) of the goods and services available to the public;

(d) complaint redressal mechanism including the time within which the complaint be disposed of and the officer of the public authority to whom such complaint may be made;

(e) the name and addresses of individuals responsible for the delivery of goods or rendering of services mentioned in (a) above;

(f) any other functions, obligations, responsibility or duty the public authority is required or reasonably expected to provide;

(g) any other information relevant to delivery of goods or provision of services or such other information as may be prescribed.

(3) The appropriate Government may, by notification, make rules in relation to citizens’ charter and grievance redressal.

Let us hope that this bill becomes the Act in the coming session of Parliament starting in August 2013.

• July issue of BCAJ reported the three-member decision of CIC ruling that political parties are covered under the RTI Act. They were given six weeks time to appoint PIO, FAA etc. None of the six political parties have complied with this order.

It is now reported that Government shall overturn CIC’s order. The Bill amending the RTI Act shall be moved in the coming monsoon session. It shall provide in the definition of public authority [section 2(h) of the RTI Act] that it will not include any political party registered under the Representation of the People Act. RTI Activists all over the country has mailed to the President of India that he should not give assent to such bill.

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PART A: Orders of CIC

Section 7 (1) of the RTI Act:

• The appellant sought huge information from the postal Department, Bangalore about:

1. The total number of account holders in postal savings viz. saving bank, MIS, PPF etc. at the respective post offices in Bangalore Urban Area during the financial years 2009–2010 & 2010–2011 respectively.

2. The monthly turnover/collections at the above post offices during the financial years 2009–2010 & 2010–2011.

CPIO replied and stated that the information requested by the appellant is not being compiled at the central level and was scattered in 187 sub-post offices and if they had undertaken this work it would have disproportionately diverted the resources of the public authority – Whether the CPIO should collect and compile the information, which is not available in his office, from other subordinate offices and furnish the same to the applicant? – the Commission held that a CPIO is expected to provide the information available with him and he is not required to collect and compile the information on the demand of a requester nor he is expected to create a fresh one merely because someone has asked for it.

Decision notice
The main issue raised by the appellant is whether the CPIO should collect and compile the information, which is not available in his office, from other subordinate offices and furnish the same to the applicant. On this issue the Commission has already observed, vide Decision No. 216/IC(A)2006. File No. CIC/MA/A2006/00608 dated 31-08-2006, as under:-

“Transparency in functioning of public authorities is expected to be ensured through the exercise of right to know, so that a citizen can scrutinise the fairness and objectivity of every public action. This objective cannot be achieved unless the information that is created and generated by public bodies is disclosed in the form in which it exists with them. Therefore, information is to be provided in the form in which it is sought, u/s. 7(9) of the Act. and, if it does not exist in the form in which it is asked for and provided to the applicant, there is no way that proper scrutiny of public action could be made to determine any deviations from the established practices or accepted policies”.

Thus, a CPIO is expected to provide the information available with him. He is not required to collect and compile the information on the demand of requester nor is he expected to create a fresh one merely because someone has asked for it. Because, such attempts would not allow for scrutiny of public action to detect and determine the nature and extent of deviation from the accepted policies. In view of the forgoing, the CPIO’s representative’s submissions are upheld in so far as they relate to the collecting and compiling of data from 187 sub-post offices.

The Commission, however, agrees with the appellant’s argument regarding non-supply of information by the CPIO requested in query 2 of his RTI application dated 21-10-2011. The CPIO should either have sought the assistance of his counterpart in the office of the Director of Accounts (Postal) Bangalore or transferred this part of the RTI application to him for supply of information. Accordingly, the CPIO is directed to furnish the information (requested in query 2) to the appellant within 15 days from the date of receipt of this order. It is, however, clarified that the information as available on record with the Director of Accounts (Postal) should be provided and there is no need to collect and/or compile any data.

[S.C. Chopra vs. Department of posts, Karnataka Circle, Bangalore: Appeal No. CIC/BS/A/2012/000481/2393 dated 02-05-2013]

• The appellant sought following information from PIO of EPF Appellate Tribunal, New Delhi:

1. Provide details of case history with all relevant case papers, photocopies of all documents submitted, citations referred to by the Appellant and the Respondent in the above referred case/appeal.

2. Details of applicable penalty payable by the Institution concerned for the default as decided and levied by the Appellant Tribunal.

3. Details of exemption in penalty and relief, if granted in the matter.

4. Details as to, can the appellant tribunal in case of double default exempt penalty or grant any relief to the appellant/institution.

5. Whether the attachments enclosed qualify the institution concerned for any relief in penalty amount.

6. Status report of the case/appeal as of now.

The appellant’s contention before CIC was that PIO has not given information sought in the RTI Application. He stated that a fee of Rs. 118 has been wrongly charged from him for provision of information in violation of sections 7(3)(a) & 7(6) of the RTI Act and the documents supplied do not answer his queries. The CPIO’s representatives stated that they (‘Employees Provident Fund Appellant Tribunal’) are a judicial forum and as per their rules they are required to charge a fee of Rs.10 per page for supply of certified copies of decisions, however, they will refund the charges. As regards the appellant’s second contention that the documents supplied do not answer his queries, the CPIO’s representative argued that under the RTI Act the CPIO is required to provide the information/documents as available on record and is not expected to answer queries/provide interpretation(s)/clarification(s); he added that all the documents contained in the relevant file have already been forwarded to the appellant.

Decision notice
The RTI act does not cast on the public authority any obligation to answer queries in which a petitioner attempts to elicit answers to his questions. The Petitioner’s right extends only to seek information as defined in section 2(f) of the RTI Act either by pinpointing the file, document, paper or records etc. or by mentioning the type of information as may be available with the specified public authority. It is noted that in the matter at hand copies of all documents contained in the file have been provided and there is no further information/ document available which can be furnished.

As stated by the CPIO’s representative the fee of Rs. 118 should be refunded to the appellant within 7 days from the date receipt of this order.

[ Rashad Shaikh vs. PIO, EPF Tribunal New Delhi : Appeal No. CIC/BS/A/2012/00512/2409 dated 06.05.2013]

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PART d: GOOD GOVERNANCE

Shiv Nadar:

Shiv Nadar, chairman of HCL, states that India Inc is not doing enough at the philanthropy front.

Talking about “Shiv Nadar Foundation”, he says:

“I firmly believe that philanthropy is most effective and outcome-oriented when you ensure that your pledge actually gets spent. Disclosures further help build an environment of trust and transparency. Good governance is therefore not an added bonus; it is at the heart of what makes philanthropy successful. In its journey of two decades, we have operated on our core values of transparency and robust governance systems”.

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PART B: RTI Act, 2005

DoPT of Ministry of Personnel, Public Grievances & Pensions have recently issued one Office Memo as under:

Sub: Disclosure of personal information under the RTI Act:

The
Central Information Commission in one of its decisions (Sh. Manoj Arya
vs. CPIO, Cabinet Secretariat: CIC/SIRS/P/2013/000058 of 25.06.13) has
held that information about the complaints made against an officer of
the Government and any possible action the authorities might have taken
on those complaints, qualifies as personal information within the
meaning of provision of section 8 (1) (j) of the RTI Act, 2005.

The
Central Information Commission while deciding the said case has cited
the decision of Supreme Court of India in the matter of Girish R.
Deshpandevs. CIC and others (SLP (C) no. 27734/2012) in whichit was held
as under:-

“The performance of an employee/Officer in
anorganisation is primarily a matter between theemployee and the
employer and normally those aspects are governed by the service rules
which fall under the expression personal information, the disclosure of
which has no relationship to any public activity or public interest. On
the other hand, the disclosure of which could cause unwarranted invasion
of the privacy of that individual.” The Supreme Court further held that
such information could be disclosed only if it would serve a larger
public interest.

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PART B: RTI Act, 2005

National Campaign for people’s Right to Information (NCPRI) held 4th RTI National Convention for four days (15th February to 18th February) at Hyderabad.

NCPRI was formed in 1996 and functions as an AOP till today. Prominent Individuals running the same are Ms. Aruna Roy, Mr. Nikhil Dey, Ms. Anjali Bharadwaj and others. NCPRI has played a key role in drafting the Central RTI Act of 2005. It holds convention every two years. On 15th and 16th February, the subjects of discussion were the future course of NCPRI-structure, decision making process, role of NCPRI etc. It then produced a summary, part of it reads:

Objectives

The National Campaign for people’s Right to Information (NCPRI) seeks to empower the people and to deepen democracy, through promoting people’s right to information. By using this right, it seeks to fight corruption and social apathy, to make governments and other institutions and agencies having an impact on public welfare, more humane and accountable to the people and to promote efficiency and frugality.

Values

The NCPRI is committed to support participatory just, secular and humane democracy.

Methods and Activities

The NCPRI endeavours to constantly engage and interact with the state and with other institutions and agencies. It campaigns for the enactment and use of right to information law that is effective and accessible to all. It also supports people’s efforts at developing the ability and motivation to use the right to information for addressing individual and social problems. It works at disseminating the RTI law and encourages and supports the development of materials related to transparency and governance, the raising of awareness about the fundamental value of information, the conduct of research and the setting up of information clearing houses. It seeks to further the cause of transparency by adopting other direct and indirect methods, including the filing of information requests, the fighting of legal cases and the holding of public hearing.

It also decided on its structure and also to democratise the same, details will be posted on www. bcasonline.org and www.pcgt.org.

On 17th February, delegates were divided in to 15 groups to discuss 15 topics for its activities and to draft Hyderabad Declaration on The Right to Information (Pattern similar to BCAS-RRC)

On 18th February, the final Hyderabad Declaration of the RTI was adopted at a public meeting which was also addressed by Mr. Vajahat Habbibullah (the first Central Chief Information Commissioner)

On the afternoon of 18th February, there was a visit to a NGO specialising on social audit to understand the process of social audit, a subject of great importance to build accountability and contain corruption.
It was a rewarding and satisfactory convention.

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PART d: Good Governance

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

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PART C: Information on & Around

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.“

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PART D: Good Governance

Excerpts from the article of Makarand Paranjape:

Makarand Paranjape reported in Sunday Times of 3-2-2013:

“From this brief overview of the facts it is clear that the republic is not as intolerant as it is badly governed. This is a crisis not of tolerance but of governance. The political establishment had failed to uphold the Constitution and the rights that are guaranteed under it. Laws meant to safeguard the weak are often manipulated or twisted to bully or browbeat those who dare to speak inconvenient truths. The powers vacated or abused by an ineffective executive are only partially compensated for by an interventionist judiciary, an over-active press, or a popular uprising like Anna Hazare’s.”

Excerpts from the article of William Bissel reported in Sunday Times of 3-2-2013

“As Thomas Kuhn has said in The Structure of Scientific Revolutions, we are facing a challenge that is the result of paradigm shift where the evidence of the failure of our concepts of governance stare us in the face. And yet, in the avalanche of evidence that speaks of this failure, the system remains paralysed applying praradigms of governance that will no longer suffice.

So, how does the class of 2014 begin to put in place the foundations of a new system of governance?

I believe that such a system will have to be built on a new paradigm of measuring overall wellbeing using tools that allow government to create a holistic view of what the elements of wellbeing are: access to security (specially for women), clean air, safe drinking water, reliable sewage facilities, access to a good nutrition for all, schools that teach, colleges that skill.”

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PART B: RTI Act, 2005

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.

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PART C: Information on & Around

CBI goes to the Delhi High Court:

Vide provisions of section 24, RTI Act does not apply to the intelligence and security organisations specified in the Second Schedule.

The Central Board of Investigation (CBI) has been added in the Second Schedule to the RTI Act w.e.f. 29-6-2011.

The matter was taken to the Madras High Court pleading that the CBI is not the intelligence and security organisation. But, it was lost.

Mr. C.J. Karira made an application to the CBI asking it to furnish information relating to the status of sanction for prosecution against government officials facing allegations of corruption between 2007 to 2011. Same was denied. He filed an appeal to CIC. He pointed out that the information which the CBI declined to reveal on his RTI plea has been disclosed by the ministry of personnel in a number of responses to Parliament members. Hence, it is disclosable under Proviso to s/s. 1 to section 24.

The 1st Proviso to section 24 reads as under: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section.

The Commission in its decision directed the CBI to disclose the status of sanction for prosecution against government officials facing allegations of corruption between 2007 to 2011.

The CBI has now approached the Delhi High Court seeking exemption under the RTI Act from disclosing information held by it on allegations of corruption. The Delhi High Court has stayed the CIC Order and has fixed the matter on 3rd April for further hearing.

Mumbai Police

On an average, 120 Mumbai police personnel have died while on duty every year since 2002, with 98% of them succumbing to various illnesses, including cardiac arrest, according to an RTI reply. Other causes of death included illnesses such as diabetes, hypertension and heart-related problems, among others.

“Due to long duty hours, a policemen cannot plan their days. They don’t get time to exercise. Moreover, when policemen are deployed at any place, they have to eat the food available there, which may be unhealthy,” Additional Commissioner of police (Crime) Niket Kaushik said.

Vice–Chancellor of Mumbai University:

A query filed by Mr. Anil Galgali an RTI activist under the RTI Act, revealed that the Mumbai University (MU) hired senior advocates to fight the cases challenging the VC’s job. The university had hired senior advocates, Rafique A. Dada – known for fighting tricky cases – Naushad Engineer and Sagar Talekar.

MU’s finance and accounts PIO A. R. Jadhav said the university had paid Rs. 4,10,900 to the three lawyers. MU legal adviser Ajit Karwande received a letter from advocate R. A. Rodrigus on 11th July, 2011, with bills that needed to be settled: professional charges of Dada (Rs. 3,30,900), Engineer (Rs. 45,000) and Talekar (Rs. 35,000).

Irrelevant Information:

Rejecting an RTI application filed by a Kandivali resident seeking information of the last 10 years on the appointment, transfer and retirement of Government employees in Maharashtra, Ratnakar Gaikwad (Chief SIC) wrote in the order:

“Applicants should not ask for detailed and irrelevant information as public information officers (PIOs), besides performing their statutory duties, are also engaged in the task of providing information to the people. In such circumstances, it would be appropriate if such information is sought which would bring in transparency and accountability in administration, halt corruption and is in public interest.”

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PART A: Orders of CIC

Political parties: Section 2(h) of the RTI Act:

Three-member-bench of CIC [Satyananda Mishra (Chief IC), Mrs. Annapurna Dixit (IC) & M. L. Sharma (IC)] passed an order dated 03-06-2013 in the case where the Respondents were six political parties:

1. Indian National Congress/All India Congress Committee (AICC);
2. Bhartiya Janata Party (BJP);
3. Communist Party of India (Marxist) (CPM);
4. Communist Party of India (CPI);
5. Nationalist Congress Party (NCP) and
6. Bahujan Samaj Party (BSP).

The main issues raised by the complainants were: Disclosure of accounts and funding of political parties.

Some political parties in response to RTI applications of complainants stated that they were not “public authority” and hence not covered under RTI.

Chief Information Commissioner noted that the matters in hand raised complex issues of law and hence constituted a full bench as noted above.

Before the Commission, the complainants made extensive submissions to contend that Political Parties fall under the ambit of section 2(h) of RTI Act.

Above submissions were supported by various arguments including

(i) That section 80 GGB of the Income-tax Act which provides that contribution made by an individual or a company to a Political Party is deductible from the total income of the assessee. This provision is exclusively applicable to the Political Parties and is suggestive of indirect financing of the Political Parties by the State.

(ii) After various RTI applications were filed with the Central Agencies, it was discovered that Political Parties enjoy a number of “facilities” provided to them by the government. This is a clear instance of being “financed indirectly by funds provided by the appropriate governments” which puts Political Parties squarely under the definition of ‘public authority’ as provided for in section 2(h)(d) (ii) of RTI Act.

(iii) If closely monitored and totalled, the total public funds spent on Political Parties would possibly amount to hundreds of crores.

In its decision, Commission quoted Harold Laski:

“The life of the democratic State is built upon the party-system and it is important at the outset to discuss the part played by party in the arrangement of affairs. Briefly, that part may be best described by saying that parties arrange the issues upon which people are to vote. It is obvious that in the confused welter of the modern State, there must be some selection of problems as more urgent than others. It is necessary to select them as urgent and to present solution of them which may be acceptable to the citizen-body. It is that task of selection, the party undertakes. It acts, in Mr. Lowell’s phrase, as the broker of ideas. From the mass of opinions, sentiments, beliefs, by which the electorate moves, it chooses out those it judges most likely to meet with general acceptance. It organises persons to advocate its own view of their meaning. It states that view as the issue upon which the voter has to make up his mind. Its power enables it to put forward for election candidates who are willing to identity themselves with its view. Since its opponents will do the same, the electorate, thereby, is enabled to vote as a mass and decision that would otherwise be chaotic, assumes some coherency and direction. What, at least, is certain, is that without parties there would be no means available to us of enlisting the popular decision in such a way as to secure solutions capable of being interpreted as politically satisfactory.”

The Commission then notes:

The question before the Commission is whether INC/AICC, BJP, CPI(M), CPI, NCP and BSP can be held to be Public Authorities u/s. 2(h) of the RTI Act. The complainants have adduced the following three principal grounds to persuade the Commission to hold that the aforesaid Political Parties are Public Authorities, viz:-

(i) Indirect substantial financing by the Central Government;

(ii) Performance of public duty by the Political Parties; and

(iii) Constitutional/legal provisions vesting Political Parties with rights and liabilities

Substantial financing of Political Parties by the Central Govt.

After considering various basis of state financing political parties, the Commission concluded, we are of the considered opinion that Central Government has contributed significantly to the indirect financing of Political Parties in-question.

On the issue of “substantially financed” again it noted:

Large tracts of land in prime areas of Delhi have been placed at the disposal of the Political Parties in-question at exceptionally low rates. Besides, huge Government accommodations have been placed at the disposal of Political Parties at hugely cheap rates thereby bestowing financial benefits on them. The Income Tax exemptions granted and the free air time on AIR and Doordarshan at the time of elections also has substantially contributed to the financing of the Political Parties by the Central Government. We have, therefore, no hesitation in concluding that INC/AICC, BJP, CPI(M), CPI, NCP and BSP have been substantially financed by the Central Government and, therefore, they are held to be the public authorities u/s. 2(h) of the RTI Act.

Performance of Public Duty
Political Parties are the unique institution of the modern constitutional State. These are essentially political institutions and are non-governmental. Their uniqueness lies in the fact that inspite of being non-governmental, they come to wield or directly or indirectly influence exercise of governmental power. It would be odd to argue that transparency is good for all State organs but not so good for Political Parties, which, in reality, control all the vital organs of the State.

The people of India must know the source of expenditure incurred by Political Parties and by the candidates in the process of election. These judicial pronouncements unmistakably commend progressively higher level of transparency in the functioning of Political Parties in general and their funding in particular.

We may also add that the preamble to the Constitution of India aims at securing to all its citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; and EQUALITY of status and of opportunity. Coincidentally, the preamble of the RTI Act also aims to promote these principles in the form of transparency and accountability in the working of the every public authority. It also aims to create an ‘informed citizenry’ and to contain corruption and to hold government and their instrumentalities accountable to the governed. Needless to say, Political Parties are important political institutions and can play a critical role in heralding transparency in public life. Political Parties continuously perform public functions which define parameters of governance and socio-economic development in the country.

In view of the nature of public functions performed by Political Parties, we conclude that Political Parties in question are Public Authorities u/s. 2(h) of the RTI Act.

Constitutional/legal provisions vesting Political Parties with rights and liabilities

The appellants have also contended that Political Parties have constitutional and legal rights and liabilities and therefore, need to be held to be Public Authorities. The argument runs thus. Political parties are required to be registered with the ECI u/s. 29A of R.P. Act, 1951-a Central Legislation. An association or body gets the status of a political party on its registration. ECI awards symbols to Political Parties under the Election Symbols (Reservation and Allotment) Order, 1968, only after registration. The ECI calls for details of expenses made by Political Parties in the elections. Contributions of the value of Rs. 20,000/- and above received from any person or a Company by a Political Party are required to be intimated to ECI u/s. 29C of the R.P. Act. ECI is vested with superintendence, direction and control of elections under Article 324 of the Constitution. ECI is also vested with the authority to suspend or withdraw recognition of a political party in certain contingencies. More importantly, Political Parties can recommend disqualification of Members of the House in certain contingencies under the Tenth Schedule. The contention is that the aforesaid constitutional/statutory powers of Political Parties bring them under the ambit of section 2(h).

We find the above submissions quite compelling and unerringly pointing towards their character as public authority.

It may be recalled that the INC/AICC and the BJP have made a bland assertion that they are not Public Authorities under the RTI Act. CPI(M) has disclosed some information to the Commission regarding allotment of land to it by the Central Government on certain terms and conditions but has not conceded that it is a Public Authority u/s. 2(h) of the RTI Act. The contentions of the above parties have to be rejected in the light of findings recorded herein above.

Based on above discussion, the Commission concluded:

In view of the above discussion, we hold that INC, BJP, CPM, CPI, NCP and BSP have been substantially financed by the Central Government u/s. 2(h) (ii) of the RTI Act. The criticality of the role being played by these Political Parties in our democratic set up and the nature of duties performed by them also point towards their public character, bringing them under the ambit of section 2(h). The constitutional and legal provisions discussed herein above also point towards their character as public authorities.

The Presidents, General/Secretaries of the Political Parties are hereby directed to designate CPIOs and the Appellate Authorities at their headquarters in 6 weeks time. The CPIOs so appointed will respond to the RTI applications extracted in this order in 4 weeks time. Besides, the Presidents/General Secretaries of the above mentioned Political Parties are also directed to comply with the provisions of section 4(1) (b) of the RTI Act by way of making voluntary disclosures on the subjects mentioned in the said clause.

[Complaints: (1) Shri Subhash Chandra Aggarwal (2) Shri Anil Bairwal vs. Respondents 6 Political Parties as noted above: CIC/SM/C/2011/00138 &000838 decided on 3rd June 2013]

Note: Many paragraphs as above are reproduction of the order.

BCAJ Admin

PART C: Information on & Around

Anna Hazare’s event at MMRDA ground, Mumbai by ‘India against Corruption’ (IAC)

IAC could not rent out the ground as it is not a registered trust. It then rented through Arvind Kejriwal’s NGO. Now through RTI query comes to light that MMRDA battled no similar compunctions in handing out discounts to the city Congress committee, also an unregistered body. In an RTI reply to Mumbai-based businessman Viren Shah, the MMRDA admits that in 2009, the Mumbai Regional Congress Committee (MRCC) was given concessions to hold political rallies on MMRDA ground twice. State BJP President Sudhir Mungantiwar said, “This is favouritism. Just because the Congress is the ruling party, doesn’t mean it can use the government machinery to favour its own, and that too during elections. If the Congress is given a concession, other parties should also be shown such considerations.”

RTI query by 10-year-old girl

Aishwarya Parashar of Lucknow stumped PMO officials with her query on when and by what orders was the title of ‘Father of the Nation’ conferred on Mahatma Gandhi. Asked what prompted her to file the RTI application on Gandhi and send it to the PMO, Aishwarya said how the term ‘Father of the Nation’ had always “somehow excited and interested” her after she read it in her social studies text book.

The PMO replied that they had no such record whatsoever and directed the query to the Ministry of Home Affairs, which then referred the case to the National Archives of India (NAI).

The NAI”s Assistant Director and CPIO Jayprabha Ravindran also had no answers to the poser by the Lucknow girl, and responded with an invite to Aishwarya asking her to visit the Archives to find for herself if there were any such relevant papers.

[It is in public knowledge that Subhash Chandra Bose gave the title of Father of the Nation to Mahatma. He, in his address on Singapore Radio on July 6, 1944 had addressed Gandhi as Father of the Nation. Thereafter on April 28, 1947 Sarojini Naidu referred Gandhi with the same title at a conference.]

[Note: I have just talked with the mother of Aishwarya in Lucknow, an RTI Activist congratulating her for this great story. It is rarely that a minor furnishes the query under RTI. In Mumbai the episode has appeared in atleast in 3 newspapers.]

A thought of the month

Many of the areas which have actually seen systemic reforms have also seen the disappearance of corruption.

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PART B: RTI act , 2005

Amendments to Maharashtra Right to Information Rules, 2005:

It is strange but true that Govt. of Maharashtra published in Gazette two notifications related to RTI dated 16-1-2012 and 31-1-2012 amending Maharashtra Right to Information Rules. The Govt. never informed citizens about it. It was only by chance, advocate Vinod Sampat saw that in March-end and communicated the same to all RTI activists.

All RTI activists are very much agitated. PCGT arranged a meeting with the Chief Minister (CM) where Mr. Julio Riberio, I and 7 other RTI activists invited by me met the CM on 10-4-2012. After 30 minutes dialogue, CM stated that he would look in to the matter. These notifications read as under:

The Maharashtra Right to Information (Amendment ) Rules , 2012, Dt. 16.1.2012

General Administration Department

Mantralaya, Mumbai 400032, dated the 16th January 2012

Notification

Maharashtra Right to Information Rules , 2005.

No. CRTI./2009/C.R.398/09/VI. – In exercise of the powers conferred by sub-sections (1) and (2) of section 27 of the Right to Information Act, 2005 (22 of 2005), the Government of Maharashtra is hereby pleased to make the following rules further to amend the Maharashtra Right to Information Rules, 2005, as follows, namely:-

1. These rules may be called the Maharashtra Right to Information (Amendment) Rules, 2012.

2. After rule 3 of the Maharashtra Right to Information Rules, 2005, the following rule shall be inserted, namely:-

“3A. Request relate only to single subject matter:- A request in writing for information under section 6 of the Act shall relate to one subject matter and it shall not ordinarily exceed one hundred and fifty words. If an applicant wishes to seek information on more than one subject matter, he shall make separate applications.

Provided that, in case the request made relates to more than one subject matter, the Public Information Officer may respond to the request relating to the first subject matter only and may advice the applicant to make a separate application for each of the other subject matters.’’

By order and in the name of the Governor of Maharashtra

Nandkumar Jantre
Secretary to Government

The Maharashtra Right to Information
(2nd Amendment ) Rules , 2012,
Dt. 13.1.2012

General Administration
Department

Mantralaya, Mumbai 400032, dated the 31st January 2012

Notification

Maharashtra Right to Information Rules , 2005.

No. CRTI. 2008/CR 356/VI. – In exercise of the powers conferred by sub-section 27 of the Right to Information Act, 2005 (22 of 2005), and of all other powers enabling in this behalf, the Government of Maharashtra is hereby pleased to make the following rules further to amend the Maharashtra Right to Information Rules, 2005, namely:-

(1) These rules may be called Maharastra Right to Information (2nd Amendment) Rule 2012

(2) After Rule 3A of the Maharastra Right to Information Rules, 2005, the following rules shall be added namely:

3B. Procedure for seeking inspection of records: If after having considered the application filed by the applicant for seeking inspection of record under the s.s (1) of section 6, the Public Information Officer find it appropriate, the applicant may be granted permission inspect of the record and if he grants such permission the Public Information Officer shall requisition the record desired by the applicant for perusal, from the concerned section of the Department and shall give the same to the applicant for inspection in his presence or in the presence of authorised representative, during the office hours. While inspecting such record, the applicant shall be allowed to use pencil only and the information desired by the applicant shall be noted by him by pencil only and if applicant bring any writing instruments other than pencil, he shall deposit the same with the Public Information Officer and thereafter, he shall be allowed to inspect the record. The applicant shall not make any marking on the record by the pencil he is allowed to use during inspection.

By order and in the name of the Governor of Maharashtra

Nandkumar Jantre
Secretary to Government

CIC feels RTI is dying in Maharashtra

Shailesh Gandhi, India’s feisty Central Information Commissioner and an early crusader for the Right To Information Act, believes that the RTI Act in Maharashtra is being pushed into a coma from where it may not be able to recover.

According to one version, pendency of cases pending as on 31-12-2011 is 22,000.

As per the report in Times of India acting State Information Commissioner Bhaskar Patil has stated ‘At the end of the 2011, about 1.07 lakh appeals were pending disposal’.

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PART D: Good Governance

How Does One Shame the Shameless in India

It took a horrific rape to expose our politicians. Suddenly the netas of Delhi were stripped naked. And there was no place to hide. Years of strutting around pompously and grand standing during one crisis after another, provided zero protection to these people as enraged citizenry took to the streets crying out for better governance, sickened by the apathy and abuse of power.

Excerpts from the Address of Narendra Modi:

“Development won today,” “There was thinking in our politics thatgood economics is bad politics. It was as if good governance did not suit on politics.”

He quickly added that the people of the country too needed good governance and economic development of the kind seen in Gujarat.

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PART C: Information on & Around

Pratibha Patil on Africa Trip

A month before she left office, the Centre spent a whopping Rs. 18.08 crore on the then president Pratibha Patil’s 10-day official visit to South Africa and Seychelles.

A reply to a RTI query has revealed that the Centre paid Rs. 16.38 crore to Air India for the special aircraft used for the two-nation trip from 29th April to 7th May last year.

The RTI reply revealed that an expenditure of Rs. 1.46 crore was incurred during her visit to the South African capital Pretoria, of which Rs. 71.82 lakh was spent on her local stay, Rs. 52.33 lakh on transportation and Rs. 22.12 lakh on other expenses. In Durban Rs. 23.55 lakh was spent on her visit, with Rs. 18 lakh going towards hotel stay and Rs. 5.27 lakh on transportation.

During her tenure at Rashtrapati Bhavan, Patil incurred expenses of Rs. 205 Crore on 12 trips to 22 countries.

School Principal

An RTI query filed by an activist might lead to the ouster of the current principal of a south Mumbai school. The reply to the RTI shows that the current principal of St Mary’s High School (ICSE) in Mazgaon is still at the post at 68 years of age while the state rules make it clear that school teaching staff and principal have to retire at the age of 58 years.

“I filed an RTI to check the status of 39 nonstate- board schools in the city, and found out that most are not following the rules as prescribed by the state education department,” said Nanasaheb Kute Patil, who filed the RTI query. The questions included whether the schools have all permissions prescribed by the government, annual fees demanded by them, age and qualification of teachers/principals, etc. “My aim is to make sure students don’t suffer because of school authorities,” he added. Following this, the south zone education department has sent a notice to the school asking them to remove the principal from his post.

Ajit Pawar

Ajit Pawar tendered his resignation on 25th September on moral grounds, after allegations of massive irregularities in irrigation projects in Vidharbha during his stint in previous cabinet as Water Resources minister. The governor accepted his resignation on 29th September.

From 30th September to 14th October, the state offered him facilities without any charge, according to the reply to an RTI application filed by Anil Galgali. A government resolution dated 12th October stated that after 14th October, Pawar was to be charged Rs. 5 a square foot if he wanted to avail of accommodation in the bungalow in Malabar Hill with an uninterrupted supply of all amenities – gas, water, power and telephone at state expenses. Officials from the general administration department said the rule/procedure was applicable on all cabinet ministers to allow them find new residences to ensure smooth transition from power.

But Galgali feels otherwise. “The high-voltage drama related to Pawar’s resignation was a well-planned political move,” he said. “If Pawar resigned from his ministerial post on moral grounds, then he should have shown the same morality and should have given back the Devgiri bungalow to the government. In the city’s slums, no one even gets a hut on rent for Rs. 5 a sq ft. If a government regulation (GR) states that outgoing ministers to be charged Rs. 5 a sq. ft for accommodation in a posh area like Malabar Hill, there is something fundamentally wrong and the GR must be amended.”

Security Firm

High-profile private security firm, NISA, with 45,000 guards on its payroll, has failed to file with Mumbai police with basic yet crucial details like how many of its personnel carry firearms. Yogesh Hilkar, a member of the NGO ‘Swabhiman’ run by Congress MLA Nitesh Narayan Rane, has uncovered these facts through a RTI plea.

“It is shocking that the company has not supplied details of all the armed men working with it. This is, potentially, a huge security threat,” when the Deputy Commissioner of Police, Headquarter (II) – who is responsible for maintaining a database of all the security agencies in the city and the Assistant Commissioner of Police from DN Nagar division, where NISA has its corporate office, have failed to furnish any details in this respect.

The company’s website (http://www.nisaeye.com/) notes that it is having 45,000 security personnel in its ranks, based at over 3,500 installations in India, and managed through about 45 branches.

It claims that it’s been administering security to some of the biggest names in the corporate world since 1973.

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PART B: RTI Act , 2005

The Government has decided to conduct a study on the implementation of the Right to Information Act to know the cost to the government in providing information to citizens under the UPA’s showpiece initiative and whether it has helped improve its “public perception about the extent of reduction in corruption”.

As per the RTI Act of 2005, only Rs. 10 fee is required to seek information from any public authority, but various government officials have complained of the huge cost they have to bear to divert resources and effort to answer RTI pleas.

The government has earlier got a study conducted from PricewaterhouseCoopers (PwC) in 2009 on the key issues and constraints in implementing the RTI Act. But, for the first time, the government is attempting to “calculate the cost to government in providing the formation under RTI”, as per the scope of work of the new study for which the Department of Personnel and Training has invited bids on 4th January. “To further strengthen the RTI regime, it has been decided to do a 360-degree study of the implementation of the RTI Act. The study will cover both states and the central government, across various sectors, and will cover public authorities at centre, state, district and panchayat level,” the bid document says. The scope of the study also involves assessing public perception about the extent of reduction in corruption. “Since the implementation of the Act there has been a significant and perceptible change in the level of transparency in the working of the governments at the Centre, state and the sub-state level,” the bid document claims. The scope of the study includes a study of trends in filing of RTI applications or appeals across the country. The government also wants an institution or organisation to study the use of the RTI Act by different types of applicants – in cases where applicant type is identifiable from the application. The study will assess the type of information sought and its classification into “personal information” sought by employees, procurement-related information sought “without any apparent objective/purpose” and general information sought without specificity across sections.

“The implementation of the provisions of the Act has to be studied from the perspective of both the demand and supply side. The approach to achieving the above is viewing RTI applications and their responses from the information seekers’ and providers’ angle,” the bid document says. The study will hence, determine the level of satisfaction among the people with functioning of the Act and the experience of public authorities at different levels in dealing with RTI applications and appeals, the document has mentioned.

[Extracts from ET dated 7-1-2013]

Good News for Mumbai RTI Applicants:

The office of the State Chief Information Commissioner will go paperless in less than a month. “If all goes well then our office will be paperless and we have developed a software for the purpose,” State Chief Information Commissioner, Ratnakar Gaikwad said.

Soon after his appointment in June, when Gaikwad visited the office of the Central Information Commissioner Shailesh Gandhi, he was surprised to see that there were no files on his table.

“I studied his working pattern and felt that it was possible to introduce a paperless office in Mumbai too,” he added. Gaikwad, who has set a target of disposing of 25 complaints/appeals daily, said no purpose will be served if information is not provided to an applicant as early as possible. “I am sure that we will be able to clear all the 2,098 appeals by March, 2013. Once the backlog is cleared, we will clear the appeals within 15days,” he said.

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PART D: good governance

E-governance:

E-governance equals good governance for the citizens of a country. The scale and ambition of the National e-Governance Plan (NeGP) is impressive. Some important projects that are at various stages of implementation include Passport Seva, India Post, income tax services, ESIC, setting up 2,50,000 common service centers (CSC) across 6,00,000 and more villages; the National Population Register (NPR) and the Unique Identification (UID) project. A state wide area network (SWAN) and state data centers (SDCs) are being set up to support the implementation of these and other projects. The government has also initiated ‘GI Cloud’ initiative to keep pace with technological advancements.

Making public services conveniently accessible to over 1.2 billion people in India spread across a vast geography is not an easy task, but is nonetheless vital for India’s continued growth. The success of e-governance initiatives is pegged in the timely implementation and smooth running. Technology is not a constant and it is important that policy guidelines and framework give scope for deployment of innovative IT infrastructure, like engineered system that can easily scale and adapt to the changing governance and public needs.

(Mr. Mahadeo P. Jaiswal in Transparency Review, Journal of Transparency Studies)

Ms Aruna Roy:

“The crisis in credibility today is at all levels of government. Effective implementation is as important as the legislations themselves. Our solutions do not lie in thoughts between one election and another but in addressing the lack of transparency and accountability in governance structures. My politics has always been to enhance the participation of people with in the democratic frameworks so that their voices are heard not just once in five years but every today.”

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PART C: Information on & Around

RTI AND & BMC:

The Brihanmumbai Municipal Corporation (BMC), the country’s largest civic body, has been fielding the most Right to Information (RTI) queries of any public institution across the state. Observers said this indicates the desire of Mumbai’s citizens to have greater participation in public affairs.

Following are the number of applications received by various P. As in Maharashtra and at BMC:

Year

State

BMC

2008

4.16L

46967

11.3%

2009

4.40L

59018

13.4%

2010

5.48L

72789

13.3%

2011

6.45L

90419

14.0%

2012

6.50L

plus*

1.02L

15.7%

*estimated

Activists said the BMC shouldn’t pride itself on getting such a high number of queries, as this indicates a lack of transparency. “This means that BMC has failed to put up information on its website suo moto. The BMC must understand that Mumbai is an active city, with greater citizens’ participation. So there are bound to be more RTI applications in the absence of data from the BMC,” said Shailesh Gandhi, former Central Information Commissioner and chairman of the Technical Advisory Committee (TAC) on RTI set up by the BMC.

Jinnah’s Speeches:

The Central Information Commission has asked the government to take a view on disclosure of two speeches made by Pakistan founder Mohammad Ali Jinnah during the pre-Independence era, which are in the archives of All India Radio and explain the reasons for withholding them if it intends to do so. Chief Information Commissioner Satyananda Mishra said more than 60 years after the country’s independence, the time has come when all concerned must decide what information relating to the pre-Independence period should be made available to public.

Mr. Robert Vadra:

The PMO has turned down an RTI request seeking records of an affidavit it filled in connection with the probe into the alleged land deals made by Congress chief Sonia Gandhi’s son-in-law Robert Vadra on grounds of “confidentiality”.

Nutan Thakur of Lucknow, through an RTI application, wanted to know all the file notings related to the PMO affidavit placed before the HC. She also wanted to know about the action taken after her petition was received. In its first reply in April, the PMO claimed that since the matter is sub-judice, records cannot be disclosed. Thakur then argued that such details can only be withheld when there is an explicit order from the court.

Later, in a reply on June 6, the PMO said, “The office, keeping in view the SC ruling, has sought exemption as the matter has been treated as confidential.”

It quoted a Supreme Court order which said that exception u/s. 8(1)(e) (of the RTI Act) is available not only in regard to information held by a public authority in a fiduciary capacity, but also to any information given or made available by a public authority to anyone else for being held in a fiduciary capacity.

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PART B: RTI Act, 2005

Maharashtra Government has drafted Information Commission (Appeal Procedure) Rules, 2012. Same are in internal circulation but RTI Activists have managed to get the copy thereof.

These rules are complicated and all RTI Activists (signed by 89 RTI Activists) have opposed them and have made out a detailed letter to the Chief Minister with copies to

1) Shri Jayant Banthia, Chief Secretary, Govt. of Maharashtra

2) Principal Secretary – General Administration Dept.

3) Principal Secretary – Law and Judiciary Dept.

There are 11 sub-rules. Presently, there are no separate rules for appeal procedure. The Maharashtra Right to Information Rules contain one clause for Appeal Procedure (sub-rule 5).

Sub-rule 4 of the draft rules is the most objectionable. The same reads as under:

“Accompaniments to memorandum of appeal: – Every memorandum of appeal made to the Commission shall be accompanied by the following documents namely:-

(i) copy of application made to the State Public Information Officer;
(ii) self-attested copies of the order, letter, documents, or correspondence received from the State Public Information Officer and the first appellate authority;
(iii) copy of the first appeal;
(iv) copy of order if any, given by the first appellate authority against which the appeal is being preferred;
(v) date-wise list (Index) of the documents referred to in the appeal;
(vi) affidavit in the format given in Annexure “B” affixed with Rs. 2 court fee stamp;
(vii) any other document, as deemed fit by the appellant.” Objections raised by RTI Activists read as under:

The affidavit as referred to in rule 4 requires the RTI appellant to include additional personal details e.g. “name of father/husband, age – yrs., service /business”. This rule is a blatant violation of Section 6(2) of RTI Act 2005, which states, “An applicant making request for information shall not be required to give… any other personal details except those that may be necessary for contacting him.” Also, this affidavit only burdens the RTI appellant (who is quite often a common man, and not an experienced RTI activist) with a meaningless, difficult and costly legal procedure. Change needed: Provision for affidavit should be deleted. In compliance with the RTI Act, no extra personal details must be asked, other than the ones needed to contact him.

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PART A : Decision of the H.C.

The appellant, Mr. Arvind Kejriwal had questioned and challenged the interpretation of Section 11 of the RTI Act.

The Delhi High Court noted:

Section 11 of the Act has been given a marginal heading “third party information”. The term “third party” has been defined in section 2(n) of the Act to mean any other person including a “public authority” except the citizen who makes a request for information. Thus, a public authority which has the information or access to the information can be a third person. Section 8 of the Act provides exemption when information is not to be furnished or given. To interpret section 11, one has to keep in mind and also consider the exemptions provided in section 8(1) of the Act.

The core contention of the appellant is that the expression “relates to or has been supplied by a third party and has been treated as confidential by that third party” in section 11(1) of the Act should be read as “relates to and has been supplied by a third party and has been treated as confidential by the third party”. In other words, the word “or” used in section 11(1) should be read as “and”. In support of the said contention, it is submitted that purposive and not literal interpretation is required and if a restricted or narrow interpretation is given, then in all cases where information relates to third party, the Public Information Officer (“PIO” for short) would be required to issue notice to the third party or parties concerned. This may happen in most cases and it would make the Act unworkable. The appellant has pointed out instances like list of families below the poverty line, copy of contracts or bills, etc. between the public authorities and third parties, marks obtained in an exam, admissions or even information which is already in public domain would attract the procedure stipulated in section 11 unless the word “or” is read as “and”. It is submitted that in such cases, notices will have to be issued to third parties who may be spread all over India and this process itself may take days, if not months to be completed. Dealing with objections raised, in regards to the abovementioned procedure, would also make the Act tedious, result in procedural difficulties and delay furnishing of information and is therefore contrary to the legislative intent.

• The word “or” is normally disjunctive and the word “and” is conjunctive. However, there have been occasions when the Courts have interpreted and read them vice versa to give effect to the manifest intention of the Legislature as disclosed from the context. It is permissible to read word “or” as “and” and vice versa, if the legislative intent is clearly spelt out or some other part of the statute, requires such interpretation (See principles of Statutory Interpretation of G.P. Singh, 11th edition at page 455).

The Court then cited a number of Court decisions including the Supreme Court decisions in:

• People’s Union for Civil Liberties v. Union of India

• Central Board of Secondary Education v. Aditya Bandopadhyay.

The Court then noted and decided:

• Fair and just decision is the essence of natural justice. Issuance of notice and giving an opportunity to the third party serves a salutary purpose and ensures that there is a fair and just decision. In fact issue of notice to a third party may in cases curtail litigation and complications that may arise if information is furnished without hearing the third party concerned. Section 11 prescribes a fairly strict time schedule to ensure that the proceedings are not delayed.

• Thus, section 11(1) postulates two circumstances when the procedure has to be followed. Firstly when the information relates to a third party and can be prima facie regarded as confidential as it affects the right of privacy of the third party. The second situation is when information is provided and given by a third party to a public authority and prima facie the third party who has provided the information has treated and regarded the said information as confidential. The procedure given in section 11(1) applies to both the cases.

• The learned Single Judge in the impugned decision has dealt with and interpreted aspect of annual confidential reports and other factual aspects including the fact that inspection of several files has been allowed to the appellant and what the appellant is today seeking is merely the gradings. We would not like to comment on any of these aspects or issues as they were not specifically argued by either side. As noticed above, the matter has been remitted for fresh decision by the CIC. The observation made in the present appeal should not be construed as binding findings on any of the said aspects. We have interpreted section 11 of the Act and the observations made above are in that context. The appeals are accordingly disposed of.

[Arvind Kejriwal v. CPIO and Anr, Arvind Kejriwal v. Union of India: LPA Nos. 719/2010, 291 & 292/2011 decided on 30.09.2011 – (RTIR IV (2011) 368 (Delhi))]

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Part A : ORDERS OF the COURTS

? Section 2(h): Public Authority Thirteen educational institutions had filed writ petitions in the Uttarakhand High Court. A common question of law was involved in all these petitions. All the petitioners before the Court were societies or schools run by societies. Each claimed that the school was entirely privately funded and since they are not ‘public authority’ as defined u/s.2(h) of the Right to Information Act, 2005 (the Act), cognizance cannot be taken against them by the State Information Commission, under the Act.

Their contention before the High Court was that they are neither covered under items (a) to (d) u/s.2(h), nor under the ‘include’ part of that clause (h) as they are not owned, controlled or substantially financed directly or indirectly by funds provided by the appropriate government. Hence they are not ‘public authority’!

It was their contention that in order to get covered under that ‘includes’ part of the clause (h) the society has to be one which is owned or controlled by the government and in any case that ‘control’ exercised by the government should be ‘deep and pervasive’ control inasmuch as the management committee of the school should be controlled by and large by government nominees or by government authorities.

The Court held that these institutions are not ‘public authorities’ as they are not owned or controlled or financed by the government. None of these petitioners owes its existence to a notification or order of the Government, therefore, so far as this part, as to whether the petitioners are ‘public authorities’ is concerned, the same stands settled and it is held that institutions, such as the petitioners are not ‘public authorities’ under the Right to Information Act.

The Court considered another aspect of these writ petitions, that is though the petitioners may not be a ‘public authority’ as defined u/s.2(h) of the Act, whether the education department of the government or any other government department, being a public authority, through its Information Officer or the Appellate Authority under the Act can compel the petitioners to furnish information, which is being sought from these public authorities. For example in case the Public Information Officer in the Department of Secondary Education of Government of Uttarakhand is requested for information which pertains to any of the petitioner schools, the question would be, whether the Public Information Officer of such a public authority can compel the petitioner to furnish this information to that public authority. The answer to this is also to be found in the Act itself. The petitioners here would fall under the category of the ‘third party.’

Section 11 of the Act deals with the subject of ‘Third party information’. The Court took the view that section 11 would apply where petitioners have already given certain information to a public authority, let us say the Department of Education or any other State department. In case the petitioners attach any confidentiality to such information, they must inform the public authority of their intentions. The public authority thereafter, whenever it wants to disclose such an information to any citizen, it must give a prior notice u/s.11(1) of the Act to the ‘third party’, which is the petitioners in the present case and u/s.11(1) of the Act, when this notice has been given, the petitioners shall have an opportunity to represent before the public authority. In case, the public authority still decides to go ahead and furnish such information u/s.11(3) of the Act, this decision must be communicated to the third party who then has a right to file an appeal against this decision u/s.19 of the Act read with section 11(4) and then a right to file a second appeal. Apart from this, the ‘third party’ also has a remedy to directly approach the State Information Commission u/s.18(1)(f) of the Act.

The Court also considered one more aspect, i.e., section 8(1)(j) which relates to personal information. The Court considered 2 situations: One when the information is already held by the public authority such as department of education. In such a case the Court held that provisions of section 11 must be complied with before the information held is provided to the citizen-applicant. Two, the information is not held by the public authority, e.g., department of education. In such case the Court asked: Can the Public Information Officer compel the petitioners to furnish certain information from the records of the petitioners’ office even though such information has not been furnished under any provisions of law by the petitioners before this public authority?

The answer to it, the Court stated would be in negative as it would be an invasion on the privacy of these institutes not being a public authority. Moreover, in case such ‘information’ is not already there with such public authority, it cannot be information ‘which is held’ by the public authority and therefore, it would not be covered under the definition of ‘right to information’ given u/s.2(j) of the Act.

Note: In the last part of this decision it is held that the information which is not on the records of the public authority is not ‘held’ and is hence not covered u/s.2(j) defining ‘right to information’. This part is in contrast to the decision of CIC reported in March 2011, BCAJ. I note that under the definition of ‘right to information’ u/s.2(j) what is covered is not only ‘held’ by but also ‘under the control of’ any public authority. I would imagine that Department of Secondary Education, Government of Uttarakhand has ‘a control’ over all the schools to get whatever information it needs. On that assumption, one needs to consider whether this part of the decision is correct or not.

[Asian Education Charitable Society & Ors. v. State of Uttarakhand & Ors., decided on 9-2-2010 {2010 (2) ID 552}]

Section 8(1)(g): Section 8(1)(g) reads as under: Section 8(1), Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen:

(g) Information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes;

The Jharkhand Public Service Commission, Ranchi (JPSC) filed a writ petition in the High Court of Jharkhand challenging the orders passed by the State Information Commission whereby it gave direction to JPSC to furnish the various information sought by the applicant.

The applicant had sought information regarding the names of the members of the interview board who selected candidates for the post of lecturers, etc.

The Commission directed JPSC to furnish the various information i.e., the names of the members of interview board, etc. to the applicant.

High Court of Jharkhand ruled as under:

“As regards the information regarding the names and identities of the members of the Interview Board, the same cannot possibly be furnished in view of the fact that confidentiality regarding the names and identities of the members of the Interview Board needs to be preserved.

Considering the facts and circumstances of the case and also in the light of the discussions made above, claim of the petitioner that the information sought for in respect of the names of the members of the Interview Board cannot be furnished since it would violate confidentiality, appears to be a reasonable objection.

[Jharkhand Public Service Commission v. State of Jharkhand and Others, decided on 19-5-2010. {RTI R1 (2011) 227}]

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Part A : ORDERS OF the COURTS

Section 20(1) of the RTI Act: Penalties
Section 20(1) provides for penalty on Public Information Officer (PIO). Sub- section (1) provides six types by default –

PIO
— refuses to receive an application for information,
— does not furnish information within the time provided under the Act,
— malafidely denies the request for information,
— knowingly gives incorrect, incomplete or misleading information,
— destroys information which is the subject of the request,
— obstructs in any manner in furnishing the information.

If any of the above is committed without any reasonable cause it is provided that the Commission shall impose a penalty on PIO at Rs.250 per day but not exceeding Rs.25,000 .

Issue that has been raised from time to time is whether word ‘shall’ makes impositionof penalty mandatory or ‘shall’ here means ‘may’ and it is optional for CIC to levy or not to levy the penalty.

On 11th April, 2011, CIC Shailesh Gandhi has ruled as under in the case of complainant Mr. Attar Singh v. PIO, Vivekananda College:

The RTI application was furnished on 04-02-2010. The information was provided on 08-04-2011 after the decision of CIC.

After the hearing in the matter of penalty, CIC writes:

If without reasonable cause, information is not furnished within the time specified under sub-section (1) of section 7, the Commission is duty- bound to levy a penalty at the rate of Rs. 250 each day till the information is furnished. Once the Commission decides that there was no reasonable cause for delay, it has to impose the penalty at the rate specified in section 20(1) of the RTI Act and the law gives no discretion in the matter. The burden of proving that denial of information by the PIO was justified and reasonable is clearly on the PIO as per section 19(5) of the RTI Act.

Decision:
As per the provisions of section 20(1) of the RTI Act 2005, the Commission finds this a fit case for levying penalty on Mr. Rajender Kumar Wadhwa, PIO & Administrative Officer. Since the delay in providing the information has been over 100 days, the Commission is passing an order penalising Mr. Rajender Kumar Wadhwa Rs.25000 which is the maximum penalty under the Act.

The Chairman, Vivekananda College is directed to recover the amount of Rs.25000 from the salary of Mr. Rajender Kumar Wadhwa and remit the same by a demand draft or a Banker’s Cheque in the name of the Pay & Accounts Officer, CAT, payable at New Delhi and send the same to Shri Pankaj K. P. Shreyaskar, Joint Registrar and Deputy Secretary of the Central Information Commission, 2nd Floor, August Kranti Bhawan, New Delhi-110066. The amount may be deducted at the rate of Rs.5000 per month every month from the salary of Mr. Rajender Kumar Wadhwa and remitted by the tenth of every month starting from May 2011. The total amount of Rs.25000 will be remitted by 10th September, 2011.

[Mr. Attar Singh v. PIO, Vivekanand College, University of Delhi. Decision No. CIC/SG/C/2010/000502/11484- Penalty]

Section 2(h): Public Authority
Madras High Court (Madurai bench) in a judgment delivered on 06-07-2010 has extensively discussed the words ‘includes’ and ‘substantially financed’ as they appear in section 2(h) which defines ‘Public Authority’.

R. Sivaprakasam sought xerox of the day book pertaining to a receipt of Rs.3, 00,000 received by Karanthai Tamil Sangam (Sangam). Same was denied to him. Subsequently, in response to RTI application made District Registrar, Thanjavur directed Sangam to furnish xerox of the day book as above. This direction is put to challenge in the writ petition.

Sangam submitted that information sought is not ‘information’ as defined u/s2(f), Sangam is not a public authority as defined u/s2(h) and in any case information sought is exempt u/s 8.

Hereunder, I am confining only to the part of the judgment deciding on applicability of section 2(h).

In one earlier judgment the Madras High Court had held as under:

The word ‘substantial’ is not defined in the Act. For the word ‘substantial’ it is not possible to lay down any clear and specific definition. It must be a relative one, however, ‘substantial’ means real or actual as opposed to trivial. ‘Substantial’ also means practicable as far as possible, hence the word ‘substantial’ not to be construed as higher percentage of the estimated amount or otherwise.

The Court then reproduced certain paras (NOs.15 to18, 21&23) from the said judgment as under:

“15. If we look at the definition of section 2(h), it is clear that the appellant-company does not come under the provisions of section 2h(a), (b), (c) or (d), but thereafter section 2(h)(d) of the definition clause uses the word ‘includes’. It is well known that when the word ‘includes’ is used in an interpretation clause, it is used to enlarge the meaning of the words and phrases occurring in the body of the statute. Reference in this connection can be made to G. P. Singh’s ‘Principles of Statutory Interpretation’ in the 10th edition of the said treatise, the learned author formulated that when the word defined is declared to ‘include; such and such, ‘the definition is prima facie extensive’ (page 175 of the book). In support of the aforesaid formulation, the learned authority has referred to a number of decisions. The latest decision referred to in support of the aforesaid proposition was rendered in the case of Associated Indem Mechanical P. Ltd. v. W. B. Small Industries Development Corporation ltd., AIR 2007 SC 788 of the report, the learned judges held as follows:

“10. The definition of premises in section 2(c) uses the word ‘includes’ at two places.It is well settled that the word ‘include’ is generally used in interpretation clauses in order to enlarge the meaning of the words or phrases occurring in the body of the statute; and when it is so used those words of phrases must be construed as Comprehending, not only such things, as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include [see Dadaji al ias Dina v. Sukhadeobabu AIR 1980 1 SCR 1135, Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. AIR (1987) 2 SCR 1 and Mahalakshmi Oil Mills v. State of A.P. AIR 1989 SC 335: (1989) SCC 164.”]

16. Therefore, obviously the definition of bodies referred to in Section 2(h)(d)(i) of the RTI Act would receive a liberal interpretation, and here the words which fall for interpretation are the words ‘controlled or substantially financed directly or indirectly by funds provided by the appropriate Government.’

17. We are here concerned with the interpretation of the definition clause in the RTI Act. The Act has been enacted ‘in order to promote transparency and accountability in the working of every public authority’. In the Preamble to the Act, it is made clear that ‘democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed’. From the Preamble to the Act it is clear that revelation of information may cause conflict with the other public interest including efficient operations of the Governments, but the Act has been enacted to harmonise these conflicting interests while preserving the paramountcy of the democratic ideal.

18. The RTI Act thus attempts to inculcate openness in our democratic republic. It has to be accepted that one of the salience of openness in democracy is an access to information about the functioning of the public authorities.

21. The RTI Act is virtually enacted to give effect to citizen’s right to know. Citizen’s right to know has been construed by the Hon’ble Supreme Court a

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PART A : Decision of the H.C.

Section 24 of the RTI Act

In the BCAS of July 2011, the Government’s Notification dated 09.06.2011 was reported under which the Central Board of Investigation (CBI) was exempted from the purview of the RTI Act (the Act) by including the CBI in the Second Schedule to the Act.

Above notification was challenged by a PIL before the High Court of Madras on the ground that it is ultra vires Article 14 of the Constitution of India.

According to the petitioner, in the light of the various scams, the country has become rudderless in the war on corruption and at this juncture, the Government instead of becoming more transparent has become reactionary by resorting to Section 24 of the Act by granting blanket exemption to the CBI. The petitioner further contended that respondents had over looked the first proviso to Section 24(1) of the Act under which information pertaining to allegations of corruption and human rights violation cannot be exempted under Section 24 of the Act. Further, Section 24 exempts only intelligence and security agencies and CBI which is an investigating agency cannot be granted a blanket exemption. It was also contended that the plea that investigative data requires confidentiality has been adequately taken care of in Section 8(1) (g) and (h) of the Act. It wass further submitted that Section 24(3) of the Act mandates that every notification issued under Section 24(2) shall be laid before each house of Parliament, and failure to do so renders the exemption null and void. It was the case of the petitioner that the exemption is bound to create chaos as several writ petitions will be filed challenging the orders passed by the Central Information Commission in their decisions against the CBI, since the CIC has no power to set aside the notification.

In reply, Union of India filed the counter affidavit inter alia contending that the exemption to the CBI under Section 24 is not a blanket exemption inasmuch as it is subject to the provisos to Section 24 of the Act. The exemption was granted after the Government received representation from the CBI stating that difficulty was being faced by it in its working and the legal opinion was received that opined that the CBI qualifies as a security and intelligence organisation under Section 24 of the Act.

The judgment of the High Court dismissing the writ petition runs into 21 printed pages and is very interesting. However, I herewith reproduce only the concluding part of it.

“We find no justifiable reasons to depart from such findings which appear to have been arrived at after considering all material placed before the Government, taken note of by the Committee of Secretaries and other authorities prior to issuance of the impugned Notification. Admittedly, there is no allegation with regard to the decision making process or that there was any arbitrariness in the procedure adopted so as to offend Article 14 of the Constitution. It is submitted by the learned Additional Solicitor General appearing for the first respondent that Notification has been placed before both Houses of Parliament and would be taken up for consideration in the ensuing Session.

In view of the above, we hold that the impugned Notification is neither ultra vires section 24 of the RTI Act nor violative of the provisions of the Constitution of India.

In the result the Writ Petition fails and same is dismissed. No costs, Consequently, connected Miscellaneous Petition is closed.”

[S. Vijaya lakshmi vs. Union of India & another w.p. 14788 of 2011 & M.A.1 of 2011 dated 09.09.2011.- Reported in RTI R1 (2012) 106-126]

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PART C: Information on & Around

• Misuse of plot near Mantralaya on Madame Cama Road:

An investigation using the Right to Information Act by Mumbai Mirror has found out that the 19 ministerial bungalows situated on Madame Cama Road in Mumbai, next to the New Administrative Building of Mantralaya, are illegal.

The 5-acre plot had originally been earmarked for a public garden and, in 1979, the government had even promised that the bungalows would be demolished and the plot handed over to BMC for developing the garden.

This, however, was never done. The ministerial bungalows were constructed in the 1950s and are being maintained by the Public Works Department. When Mirror sought an explanation from PWD Minister Chhagan Bhujbal, he said, “It’s a very old case. I do not remember much.”

Several prominent citizens have opined that the government must hand over the plot for the garden. Among them, architect P. K. Das, whose firm had once prepared a plan for the makeover of Nariman Point, said, “In the Development Plan for Mumbai, the land is reserved for a garden and is meant for public use. This has been taken over and built upon. The ministers’ bungalows and sheds housing PWD offices must be cleared and the land utilised for its reserved purpose. There is a comprehensive redevelopment plan for this plot by the MMRDA, which was cleared by the state’s empowered committee which is headed by the chief secretary.”

The area’s citizens group is all for a garden. Atul Kumar of the Churchgate Nariman Point Residents Association said, “The city is starved of green spaces. The government must do away with these bungalows and develop a garden on the plot.”

• Eastern Freeway:

The third phase of the Eastern Freeway up to Ghatkoper, which is thrown open to motorists in April, has witnessed a 23% increase in cost ever since work started in 2007.

“The project’s cost rose from Rs. 847 crore to Rs. 1,106 crore because of delay in rehabilitation of project-affected people and slow execution of work,” RTI activist Anil Galgali said.

Galgali had sought information about the Eastern Freeway project from the MMRDA. The work on the stretch between Chhatrapati Shivaji Maharaj Vastu Sangrahalaya to Anik Junction was scheduled to be completed by 18th January, 2011 after the work order was issued in January 2008. “There was a delay of 29 months in executing this phase of the project,” Galgali added.

• RTI & Housing Society in Mumbai:

At a special general body meeting on Sunday 30- 03-2014, of the Salsette Catholic Society in Bandra, it expelled a member for harassment through the RTI Act.

54 of the 73 members present voted in favour of the motion to expel Leslie Almeida. Earlier, Almeida had not replied to a showcause notice issued by the society that said it would allow him to present his side. But at the meeting, the members did not give Almeida an opportunity to speak as they constantly interrupted him. The committee, however, made a 90-minute presentation on why he should be expelled.

Father Michael Goveas, parish priest at St Andrew’s Church, suggested an inquiry be set up to prove the allegations against Almeida. The society’s secretary, Cornel Gonsalves, said the society had been dragged into a personal dispute, and has been harassed with hundreds of RTI applications.

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PART B: RTI Act, 2005

• RTI Humour:

Chinese scientists gave environmentalism boost by inventing a printer that uses water instead of ink on rewritable paper This printer might trigger interest in India for an entirely different reason. Given the babus’ reluctance to allow the spirit of RTI legislation to prevail, they could use this invention in their line of work. What can an RTI petition achieve when the reply comes with blank pages?

• Sad story of RTI:

RTI Activist from Pune, Vihar Durve, Sought information from DoPT about the names & addresses of RTI Activists murdered/injured/harassed/assaulted etc. during 2005 to 2013. The information received is shocking. The number of persons affected as above in more than 8 years is as high as 151. The individuals murdered are 23, which includes Maharashtra 6, Gujarat 4 and 13 from other 9 States.

In 2014 also, the number of persons Killed/ Committed Suicide in Maharashtra as per my information is 2.

• Western India RTI Convention

Western India RTI Convention

Few RTI activists met in Mumbai last month to consider the proposal to organise such Convention in Mumbai. All the activists endorsed the proposal.

The BCAS Foundation (of Bombay Chartered accountants’ Society) offered to become a platinum sponsor by contributing at least 50% of the cost of organising the Convention to be incurred.

The Department of Civic and Social Justice of Dr. Ambedkar Center for Social Justice, University of Mumbai offered to host the convention at its campus premises and to provide many other complimentary facilities. Accordingly, we, the RTI activists of MUMBAI, are pleased to hold a twoday convention in MUMBAI, the dates fixed are 7th & 8th June.

We invite RTI Activists from Maharashtra, Gujarat & Goa and other States to join and be a part of this historic event.

The Convention Convener is Bhaskar Prabhu of the Mahiti Adhikar Manch. Shailesh Gandhi is the guide, Ms. Aruna Roy shall inaugurate the convention and be with us for both the days. Anyone Interested may join as delegate. For Registration form and other details please mail to: mahitiadhikarmanch@gmail.com or narayanvarma2011@ gmail.com

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PART A: ORDERS OF CIC & the court

• Appeal –Section 19(3) of the RTI Act:

The Appellant through an RTI application dated 19-12-2012 sought certain information regarding a notification dated 15-09-2011 by which Bharat Petroleum Corporation Ltd, public authority had invited the applications for dealership within the range of 2 kilometer of Bhaniyawala NH 72. The application made included queries such as how many applications have been received for the dealership; to provide name, address and telephone numbers of applicants; when was the site inspection conducted; to provide the name, strength and designation of the officers who were part of the Inspection Committee, to provide a copy of Inspection report and so on.

The CPIO furnished the information sought but the appellant was dissatisfied with the information supplied to him by the CPIO.

In the appeal before the CIC, the appellant not only requested that the full information sought be provided to him but also sought some additional information like, yardstick being followed for giving dealership in respect of highways; a copy of objection raised by the Site Inspection Committee in respect of yardstick etc.

During the hearing, the Respondents pointed out that the Appellant in his present appeal before the Commission has sought additional information which he had not sought in his original RTI application. At that stage, he is not allowed to seek information other than sought in his RTI application.

The Commission ruled:
“The Commission agrees with the Respondents that the information now sought by the Appellant in the present appeal did not form part of his original RTI application. Therefore, the Commission is not in a position to allow the disclosure of the information which had not even been sought by the appellant in his RTI application. An information seeker cannot be allowed to expand the scope of his RTI enquiry at appeal stage. No disclosure can, therefore, be directed to be made in the present appeal of the Appellant. The Appellant, however, may file a fresh RTI application, if he so desires.”

[Harish Prasad Divedi vs. Bharat Petroleum Corporation Ltd. Appeal No CIC/LS/A/2013/001477-SS decided on 28-01-2014: (RTIR I (2014)132(CIC)]

• Section 7(9) of the RTI Act:

Section 7(9) of the Right to Information Act reads as under:

7(9) An information shall ordinarily be provided in the form in which it is sought unless it would disproportionately divert the resources of the public authority or would be detrimental to the safety or preservation of the record in question.

In the writ petition, the petitioner sought expeditious disposal of petitioner’s appeal under the Right to Information Act, 2005 as well as a direction to respondents to pay amount of ` 3,01,000/- as compensation. Petitioner had also prayed for a direction to take disciplinary action against respondent No.1.

The petitioner had sought the information under 23 different items. The petitioner stated that he is a financier who gives advances to various contactors working with Director General, Deference estates.

The Court held:
“Keeping in view the width and amplitude of the information sought by the petitioner, it is apparent that the prayers in the writ petition are nothing short of an abuse of process of law and motivated if not an attempt to intimidate the respondent.”

“In the opinion of this Court, the primary duty of the officials of Ministry of Defence is to protect the sovereignty and integrity of India. If the limited manpower and resources of the Directorate General, Defence Estates as well as the Cantonment Board are devoted to address such meaningless queries, this Court is of the opinion that the entire office of the Directorate General, Defence Estates and Cantonment Board would come to stand still.” The court then reproduced the relevant Paragraph, from the Supreme Court decision in CBSE vs. Aditya Bandopadhyay, [(2011) 8 SCC 497].

Then it quoted para 39 of the Supreme Court decision in ICAI vs. Shaunak H. Satya, [(2011) 8 SCC 781], as under:

39. “We however agree that it is necessary to make a distinction in regard to information intended to bring transparency, to improve accountability and to reduce corruption, falling u/s. 4(1) (b) and (c) and other information which may not have a bearing on accountability or reducing corruption. The competent authorities under the RTI Act will have to maintain a proper balance so that while achieving transparency, the demand for information does not reach unmanageable proportions affecting other public interests, which include efficient operation of public authorities and the Government, preservation of confidentiality of sensitive information and optimum use of limited fiscal resources.”

Consequently, the Court deemed it appropriate to refuse to exercise its Writ Jurisdiction, and the petition was dismissed. This Court was also of the view that “misuse of the RTI Act has to be appropriately dealt with, otherwise the public would lose faith and confidence in this sunshine Act. A beneficent Statute, when made a tool for mischief and abuse must be checked in accordance with law.”

[Shail Sahni vs.Sanjeev Kumar and Ors. W.P. (C) 845/2014 decided by the High Court of Delhi on 05-02-2014. (RTIR I (2014) 220 (Delhi)]

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PART C: Information on & Around

CAG SEEKS RTI ACCESS TO GOVT FILES::

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.

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PART B: RTI Act, 2005

THE WHISTLE BLOWERS PRO TECTION ACT, 2011:

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.

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PART A: Decision Of CIC

Section 19 (1) of the RTI ACT:
Vide an RTI application dated 15-05-2012 the appellant sought information on thirteen issues as contained in his RTI Application.

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)

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Part A Decision of CIC

TEP: Order of Information Commissioner Mr. Basant Seth:

Decision Notice:
A coordinate bench of this Commission in its order dated 18/06/2013 (File No. CIC/RM/A/2012/000926 Sh. Ved Prakash Doda vs. ITO) has held as under:

“6. It has been the stand of the Commission that in respect of a tax evasion petition, once the investigation is completed, the appellant should be informed the broad results of the investigation, without disclosing any details. The appellant has a right to know as to whether the information provided by him was found to be true or false.

7. The Commission accordingly directs the CPIO to provide to the appellant, if investigation has been completed, the broad outcome of the investigation without divulging any details, within ten days from date of receipt of the order.” Following the ratio of above cited decision, the Commission directs the CPIO to respond to the RT I application and disclose the broad outcome of the TEP without divulging any details, to the appellant after the assessment is completed.

The appeal is disposed of accordingly.

[CIC/RM /A/2014/001153/BS/8839 of 15.10.2015 in the matter of Md. Masoom Afzal vs. CPIO/ACIT, HO (Tech), Income Tax Department, Patna]

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Part B RTI Act, 2005

State CIC lauds civic chief’s circular on RTI red tapism:
Maharashtra’s Chief Information Commissioner Ratnakar Gaikwad has applauded a BMC circular issued by Civic Commissioner Ajoy Mehta, aimed at reducing red tape over the implementation of the Right to Information Act, and now wants the state government to issue the very same circular to all state departments.

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.

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Part A Decision of CIC

RTI Stamps:

[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.

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Part C Information on & Around

Judges’ Assets:
The Bombay high court has rejected a petition that sought details of assets of judges under the Right to Information Act.

A
division bench of Justice S. C. Dharmadhikari and Justice G.S.Kulkarni
pointed out that the applicability of the RT I Act on information that
is with the Chief Justice in his fiduciary capacity is pending before
the Supreme Court. The Court dismissed the petition filed by advocate
Mathews Nedumpara, challenging the orders of the public information
officer (PIO) and the appellate officer that the information could not
be furnished as the matter was subjudice before the Supreme Court.

PM’s foreign trips:
Prime
Minister Narendra Modi’s foreign trips cost the exchequer over Rs. 37
crore with his Australia trip proving to be the most expensive one.

Documents
accessed under RT I Act reveal that Indian missions in 16 countries
spent Rs.37.22 crore in one year. Modi visited 20 countries between June
2014 and June 2015.

Among the most expensive trips were those
to Australia, the US, Germany, Fiji and China while the cheapest trip
was Bhutan which cost Rs.41.33 lakh. In Australia, the mission spent
over Rs.5.60 crore on hotel stay for the PM and his delegation and
Rs.2.40 crore on hiring cars.

The PM’s trip to New York in
September 2014 resulted in a spending of Rs.9.16 lakh on hotel
accommodation for the SPG delegation and Rs.11.51 lakh for hotel rooms
for the PM, and official of the foreign ministry and the PMO. The
delegation stayed at the New York Palace Hotel.

Another Rs.39
lakh was spent on car rentals for the SPG delegation while Rs.3 lakh was
spent on Prasar Bharati for coverage of the PM’s visit. In Germany, the
embassy spent Rs.3.80 lakh on hotel accomodation, Rs.1.31 lakh on daily
allowances and Rs.19,405 on local travels.

RTI show on DD:
DD
programme “Janne Ka Haq” was the only TV show in India which for over
nine years was based solely on RT I and transparency related issues. Its
popularity was high, especially in rural areas and small towns. Most
institutions against whom RT I queries were posed were obviously
uncomfortable, since an ordinary individual could challenge the system.
Janne Ka Haq was suddenly discontinued a fortnight back before it could
complete its 10th anniversary in January next year. The order to cancel
the show reportedly came from the top.

Landmark Order of Chief SIC, Maharashtra:
In
a landmark order passed by the state information commission, all
offices of cabinet ministers and ministers of states will henceforth be
treated as public authorites. The order gives scope for more
transparency in these offices, by bringing the conduct of ministers and
their activities under the RT I ambit.

The order was passed by
state chief information commissioner Ratnakar Gaikwad on an application
made by Fort resident Govind Tupe. It directs the chief secretary to
appoint the required staff so that offices of ministers take RT I
applications. The order has to be complied with by October 31.

Chief secretary Swadheen Kshatriya said, “We will comply with the order.”

Tupe had submitted an application to the office of the social justice minister, which was not replied to.

After
the Act was implemented, barring the chief minister’s office, other
ministers’ offices gradually stopped accepting applications, saying they
should be sent to the department concerned and not the ministry. But in
such scenarios, unless the applicant categorically asked about a
particular detail regarding the minister/ministry, s/he wasn’t given
that information. And, with the ministers’ offices left out of the RT I
ambit, applicants would fail to get information that only the minister
and his/her ministry was in the know of. Now, recommendations made by
ministers, letters they write and other details, like their schedule is
expected to be made available.

“When political parties are under RT I, there is no reason why these people and their conduct can’t be included,” said Tupe.

“Recently,
some officers recommended by the Social justice minister were arrested
by the ACB. I wanted to know how many such recommendations were made and
to which departments. When I went to follow up on my application, the
minister’s staff refused to reply, saying his office is not under RTI.
So, neither could I get information, nor could I file the first appeal. I
then filed a complaint with the Commission.”

During the
hearing, the Commission stated, “Offices of ministers have been set up
by government…these perform several duties – receiving files from
various departments, applications from people and complaints from the
public, and correspond with authorities/offices…” “Sizeable staff is
also sanctioned by the government to these offices… They, therefore,
fall under the purview of section 2(h) (d) of the RT I Act, 2005.”

The Social justice minister’s private secretary has been asked to respond to Tupe’s application.

“There
is no doubt that ministers’ offices are public authority. They are
decision-making bodies and all their expenses, including ministers’
salary and perks, are taken care of by the government,” said RT I
activist Bhaskar Prabhu.

Education Minister Vinod Tawde:
The
state education board has rejected a Right to Information (RT I)
request about Education Minister Vinod Tawde’s mark sheets and
certificate because of political pressure, the NCP alleged.

NCP
spokesperson Nawab Malik claimed that Tawde had declared his educational
qualification as BE (electronics) from a bogus institute called
Dnyaneshwar Vidyapeeth. “It is believed that Tawde did not clear his Std
XII and hence an RT I query was made to clear doubts about his 10th and
12th standard education,” Malik alleged.

But the Maharashtra
State Board of Secondary and Higher Secondary Education rejected the
request after pressure from Tawde, Malik added.

Activist Anil Galgali had filed the application. In her reply, public information officer and joint secretary Ranjana Chaskar of the Mumbai Board said that documents such as mark sheets cannot be given to a “third person”.

Galgali appealed against the same, but divisional secretary C.Y. Chandekar also rejected his plea stating the same reason.

Malik said that if Tawde had nothing to hide, he should make public his Std X and XII mark sheets.

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Part B RTI Act, 2005

The Department of Personnel and Training (DoPT) – the nodal department for implementing The Right to Information Act, 2005 (RT I Act) in the Government of India has uploaded two important documents on its website.

1) The DoPT has issued reasonably detailed guidance for Public Information Officers (PIOs) to help them send better drafted replies to RT I applicants. Every PIO is now required to include in his/her reply- the office number given to the request, name and contact details of the PIO including email address, detailed reasons invoking the relevant provisions of access to information is denied, name and contact details of the appellate authority whom the applicant may approach with a grievance within 30 days of receipt of the reply. This advisory is an outcome of the consultation on the subject that the DoPT launched in March this year.

This guidance also includes instructions as to how certified copies may be issued under the RTI Act by the PIO on request. The PIO will have to endorse the copy as follows: “True copy of the document/record supplied under RTI Act”, sign the copy with date and affix his/her seal containing his name and name of the public authority. If the requestor seeks documents that are numerous, then the certification of the copies may be done by any other junior gazette officer, but the reply must be sent by the PIO.

This communication has been dispatched to all Ministries and Departments, Secretariats of Parliament, President’s Secretariat, Prime Minister’s Office, NITI Ayog, Election Commission, Comptroller and Auditor General and the Chief Secretaries of all States and Union Territories.

It is heartening to note that two issues about which clarity was required have been dealt with officially after 10 years of implementation of the RT I Act. Readers will remember that the issue of certified copies being sought by applicants under the RT I Act was discussed by the Kerala High Court in January 2014 in the John Numpeli (Junior) case. In this case the Court ruled that section 2(j) of the RT I Act does not take away the right of an individual to get certified copies under other laws such as the Indian Evidence Act, 1872 or the Code of Civil Procedure, 1908. Conversely, if an RTI applicant seeks certified copies under the RT I Act then the PIO must attest to the fact that the copies have been issued under the RT I Act.

A “genius” PIO in one of the northern Indian States had used the Kerala HC judgement recently, to deny certified copies to an RT I applicant. When a prominent RT I activist brought this case to my attention, I had sent him a copy of the judgement to help the RT I applicant. This episode reminded me of the saying in my native language crudely translated as follows- “what God proposes the priest disposes as he deems fit” (in Kannada – “devaru vara kottaru, pujari koda”)

Thankfully the DoPT has now issued this communication making it very clear as to how certified copies may be given under the RTI Act. Frankly, there is no conflict between section 76 of the Indian Evidence Act and section 2(j) of the RT I Act. In both laws, any person who has the right to inspect any public document/record, has the right to seek a certified copy from its custodian on payment of the relevant fees. Public authorities resistant to the idea of greater transparency in their working had created much confusion holding that certified copies can be given only under the Indian Evidence Act and not under the RT I Act. PIOs also pointed out that documents certified under the RTI Act could not be used as evidence in Courts. Thankfully, the Kerala High Court’s judgement and now the DoPT’s latest OM have brought closure to this controversy. PIOs henceforth must supply certified copies to RTI applicants on demand if the information is not covered by any exemption under the RTI Act. In my opinion, documents certified under the RTI Act can be used in Courts as evidence/exhibits by litigants.

I hope the General Administration Department in Jammu and Kashmir also takes this step to bring clarity about issuance of certified copies to RTI applicants under the J&K RTI Act, 2009.

2) The DoPT has also uploaded on its website its 2nd Compendium of Best Practices in implementing RT I across the country. There are several interesting initiatives documented in this compendium. I hope the DoPT will bring out a 3rd volume focusing more on how Government Departments and Ministries have brought about changes to their working due to RT I interventions of the citizenry. This is what many of us would like to hear when we celebrate the 10th anniversary of the RT I Act. Readers may go through the documentation of CHRI’s efforts to make transparency a reality at the grassroots level in the Panchayats of Gujarat in this Compendium.

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PART C: Information on & Around

BMC Loses Rs. 100 Crore:
The BMC may have lost around Rs.100 Crore because developers weren’t being charged extra taxes for water and sewage disposal at under construction sites.

Following an RT I query from a city based activist, municipal commissioner Sitaram Kunte has now ordered an enquiry. Officials began collecting the levy from builders three months ago, but they were supposed to start collections in June, 2012.

For most of the past two years, the BMC didn’t ask builders for these taxes, even though water was supplied for projects, according to responses to activist Anil Galagali’s RT I query. BMC sources said around Rs. 100 crore may have been lost because these taxes weren’t collected. Meanwhile, officials recently began recovering the charges from builders, and in three months have collected Rs.19.6 crore from ongoing projects.

Sheila Dikshit’s appointment as Governor:
Files moved at breakneck speed for the appointment of the former Delhi CM Sheila Dikshit as Kerala governor. In a bid to beat the election code of conduct, sitting Kerala governor Nikhil Kumar resigned, Karnataka governor HR Bharadwaj was handed interim charge and finally Dikshit appointed as Kumar’s successor all in the space of few hours on March 4. The code of conduct was to come into effect a day later.

The information disclosed by the home ministry was in response to an RTI plea filed by activist SC Agarwal. According to the documents made public, home minister Sushil Kumar Shine recommended appointment of Dikshit as Kerala governor following a one line resignation from Kumar. In his letter dated March 4 to President Pranab Mukherjee, Kumar said, “I resign as governor of Kerala with immediate effect.” He did not ascribe any reason for his resignation.

Not only was Kumar’s resignation accepted the same day but in the next few hours, President’s secretary Omita Paul shot off a letter and warrant to Bharadwaj asking him to take additional charge. A few hours later, Paul issued a warrant under the hand and seal of the president and a letter appointing Dikshit as Kerala Governor.

Thane Badlapur CR Stretch has Just two ambulances:
Central Railway (CR) authorities are under the spotlight for failing to provide basic transport facility to ferry the injured to the hospitals. Responding to a Right To Information (RT I) query by city advocate Suyash Pradhan about the availability of ambulance services outside each station on the CR line, the authorities said that private ambulances are parked round-the clock only at Thane and Dombivali stations between the Thane-Badlapur stretch. “At other stations, ambulances are on call basis and the list of private ambulances service providers is circulated to all stations to be summoned as and when required,” said senior divisional commercial manager Narendra Patil. “Commuters between Thane-Kalyan contribute in crores to the CR from the purchase of season tickets and monthly pass. The safety of the commuter should ideally be paramount. In the last one year alone 546 accidents were reported close to Kalyan station. The frequency of the fatalities due to commuters falling off trains between Diva and Thane is scary and there is a direct need to have a 24/7 ambulance outside these stations,” Said Pradhan.

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PART B: RTI Act, 2005

WESTERN INDIA RTI CONVENTION 2014 DECLARATION:

As citizens and activists committed to building a transparent and accountable democracy we have gathered together from more than 15 States and Union Territories across the country in the city of Mumbai to celebrate our victories, and to discuss and strategies to squarely face current challenges. In this Western India RT I Convention, we pledge our commitment to protect our constitutionally guaranteed fundamental rights and particularly emphasising the freedom of speech and expression which is the bed rock of a free and democratic society in the absence of which our right to information would lose much of its meaning and value. On this day the 8th of June, 2014, we express our solidarity with all RT I users, activists and their families who have suffered attacks on them and resolve to defend our right to access information and express our opinions without fear and pledge in particular to struggle to achieve our collective vision as follows-

WE, TH E PART ICIPANTS OF TH E WESTERN INDIA RT I CONVENTION, HEREBY DECLARE TH AT:

1. E ven after nine years of the enactment of the Right to Information Act (RT I Act), governments have failed to implement this law to our expectations. Governments must take immediate and effective steps to establish a regime of transparency at all levels of the administration.

2. It is a matter of great concern that even after nine years of the enactment of the RT I Act, several states and competent authorities have rules which are contrary to the letter and spirit of the RT I Act and curb people’s right to seek information in many ways. We demand that the governments and competent authorities work towards installing a uniform regime of Rules under the RT I Act across the country.

3. A large number of public authorities have failed in fulfilling their obligation to proactively provide information to people u/s. 4 of the RT I Act. All public authorities must urgently fulfill this responsibility. We demand that the Government of India, all state governments and public authorities immediately implement the guidelines framed by the Task Force on section 4 implementation set up by the DoPT in 2013, including the adoption of all the templates developed by the Task Force.

4. T he government must undertake steps to create awareness about the RT I Act among people, especially amongst the disadvantaged segments of society such as women, dalits, adivasis, all kinds of minorities and differently-abled persons. Even after more than nine years of enactment of the RT I law, awareness levels among people and a functional knowledge of the RT I Act, is low. A Peoples’ Monitoring Study of the RT I Regime In India, undertaken by RAAG, NCPRI and other groups, based on an analysis of 4000 RT I applications filed between 2005 and 2008, has found that only 6% of RTI applications were filed by women. RT I must be introduced in the educational curriculum to spread awareness amongst the youth.

5. A ll six national Political Parties must immediately comply with the June 2013 order of the Central Information Commission, which had declared them ‘public authorities’ under the RT I Act and therefore, must implement the provisions of the RT I Act, including section 4, also appoint public information officers and appellate authorities to dispose RT I applications and appeals received from the people. All other political parties registered with and recognised by the Election Commission of India must proactively take steps to implement the RTI Act within their offices.

6. T he Central and State Governments must ensure that the Whistle Blowers Protection Act (WBP Act), enacted in May 2014, is operationalised immediately. Model WBP Rules for implementing this law must be made in a transparent, consultative and participatory manner, to establish a comprehensive framework for protecting whistleblowers across the country. It is the moral responsibility of the Government to protect RT I activists and users who are attacked, and take swift legal action against those responsible for these attacks. Protection must be provided to their families and adequate compensation must be paid in such cases. It is also the obligation of governments and information commissions to ensure that, whenever an RT I applicant is attacked, the information that was being sought by him or her is put in the public domain on and any pending appeal followed up on a priority basis. All persons demanding transparency in public interest who are attacked must be treated as human rights defenders. Instances of murders, physical attacks on RT I users must be investigated and the accused prosecuted under the law in a timely manner.

7. We demand that Parliament immediately enact an effective grievance redress law which provides a timebound, decentralized and comprehensive framework across the country, for addressing day-to-day complaints of people about the non-delivery of rights and entitlements against public authorities based on best practices developed in various States and Union Territories across the country that are implementing similar laws.

8. In order to move from transparency to accountability, the government must ensure that the rules of the Lokpal and Lokayuktas Act, are framed in a transparent manner and the Lokpal is operationalised to function in an independent and empowered manner to tackle corruption. We also call upon our elected representatives in Parliament to enact all pending anti-corruption Bills in order to make India compliant with the provisions of the United Nations Convention against Corruption (UNCAC).

9. We are deeply concerned about the increasing influence of the corporate sector over governments in decision making processes relating to developmental issues. All public authorities must take immediate steps to ensure transparency in the functioning of private entities that utilise or control public resources or public assets or provide public services. Information about all public-private-partnership projects (PPPs) must be accessible under the RT I Act at every stage of the project. Explanations about cost inflation of PPP projects must be disclosed proactively in terms of section 4(1)(c) of the RT I Act. Further, the government must frame appropriate guidelines and rules to ensure a practical framework for accessing information about the private sector bodies u/s. 2(f) of the RT I Act.

[Out of 21 items, in the Declaration, 9 are reported herein above, balance will be reported in the next month’s article.]

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PART C: Information on & Around

Compensation of Rs. 5 lakh:
The Maharashtra State Information Commission (SCIC) has awarded a compensation of a whopping Rs. 5 lakh to a right to information applicant. The compensation is to be paid by Maharashtra State Electricity Distribution Company Limited (MSEDCL) to Ambernath resident, Nitin Desai for the harassment meted out to him while providing information to him. The amount is the highest ever compensation given to an individual in the state as of now.

Earlier, a compensation of Rs. 1 lakh was given to a charitable trust by state chief information commission. In 2013, it became the highest ever compensation to be given till date. The Rs. 5 lakh compensation order was delivered on 30th October by the state information commissioner (konkan beach), Thanksi Thekkekara. The compensation was awarded after the applicant was first denied information and then given misleading information.

Desai had sought information on the transformer installed on his land. Around 300 sq. ft. of land was taken up to install the transformer and it could not be used. Desai sought information about the permission. The information was sought in 2012. However, MSEDCL’s public information officer (PIO) did not provide any information.

During the hearing, the PIO stated that verbal permission was taken from the applicant before using the land. The commissioner stated, as per rules, provision for verbal permission did not exist at all. During the hearing, a show cause notice was served on the PIO asking why a compensation of Rs. 20 lakh should not be provided to the applicant. During the hearing, the commission was of the view that Rs. 5 lakh compensation should be provided by public authority from its expenses and a report of the same should be given to the commission by 1st December, 2014. A fine of Rs. 25, 000 was also imposed on the PIO.

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PART A: Decision Of CIC

Section 5(4) of the RTI Act- Denial of Information:

[Shri Prithvi M. vs. ICAI, File No. CIC/SS/A/2013/001875/ KY, dated on 27.08.2014]

Decision:
“It would be seen here that the appellant, vide his RTI Application dated 08.02.2013, sought information from the respondents on three issues as contained therein. Respondents vide their response dated 08.03.2013, allegedly provided the required information to the appellant on all issues. Being aggrieved by the aforesaid response, FA was filed by the appellant on 26.03.2013 before the FAA, who vide order dated 25.04.2013, upheld the decision of CPIO. Hence, a Second Appeal before this Commission.

It is pertinent to mention here that the CPIO, vide his response dated 08.03.2013, provided the required information to the appellant against issue no. 1 only. Further, learned FAA, vide his order dated 25.04.2013, disposed of the FA by upholding the views of CPIO. However, it is to be seen here that required information against issues no. 2 & 3 were not provided on the ground of non-availability of the record in respondent’s office.

On being queried by the Commission, as to why the required information was not provided to the appellant against issues no. 2 & 3. On this very aspect, it is submitted by Smt. Seema Gerotra, Deputy Director & PIO, that the records are not available in PIO’s office. However, the relevant information pertaining to issues no. 2 & 3, is available in the office of CBDT.

In view of this, it is clear that the information sought by the appellant, against issue no. 2 & 3, is in existence in the Public Authority of her sister’s Branch i.e. CBDT. For this, PIO of ICAI could have easily invoked section 5(4) of the RTI Act 2005 for obtaining the required information. However, it could not be done by the PIO concerned for reasons best known to her.

The Commission heard the submissions made by respondents at length. The Commission also perused the case-file thoroughly; especially, nature of issues raised by the appellant in his RTI application dated 08.02.2013, respondent’s response dated 08.03.2013, FAA’s order dated 25.04.2013 and also the grounds of memorandum of second appeal.

By virtue of position above and in the circumstances of the case, the Commission is of the considered view that the respondents have failed to provide the required information to the appellant, even after lapse of eighteen months period. Thus, the respondents have, deliberately, defeated the very purpose of the RTI Act 2005 for which it was legislated by Parliament of India. As such, the Commission feels that appellant’s second appeal deserves to be allowed against issues no. 2 & 3 of the RTI application dated 08.02.2013. Therefore, it is allowed accordingly.

In view of the above, the respondents are hereby directed to provide the complete and categorical information, against issue no. 2 & 3 only, to the appellant, within 30 days from the date of receipt of this order under intimation to this Commission. If need be, Section 5(4) of the RTI Act 2005 be also invoked in the matter”.

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PART B: RTI Act, 2005

PEOPLE’S MONITORING OF THE RTI REGIME IN INDIA 2011-13:

In the last issue of BCAJ I had noted as under:

P.S. RTI Assessment and Advisory Group (RAAG) and Samya Center for Equity studies (SAMYA) have published in October 2014 the work titled “PEOPLE’S MONITORING OF THE RTI REGIME IN INDIA: 2011-13 running into 177 pages. Next issue, we will summarise the same. Look forward to it. Briefly looking into the contents of compilation, running into 177 pages of 11 chapters & 10 annexures, I plan to serialise it and cover 1 or 2 chapters in each issue.

This study is part of an ongoing series of studies on various aspects of the implementation of the RTI regime in India. The current study covers the period 2011-13.

Hereunder is the summary of the KEY FINDINGS and RECOMMENDATIONS before I summarise the chapters.

A. Improving awareness: There is poor awareness about the RTI Act, worse in rural areas than in urban areas. In only 36% of the rural focus group discussions (FGDs) and 38% of urban FGDs, was there even one participant who had heard of the RTI Act in the state headquarters, and in Delhi, 61% of the respondents interviewed through street corner interviews said that they had heard about the RTI Act.

B. Gender concerns: The participation of women in the RTI process, especially as applicants, has been minimal, with a national average of 8%. Many reasons can be attributed for this gender imbalance, but there is no scientific understanding of why so few women file RTI applications. If RTI means of empowerment, then there should be a special focus on ensuring that women are aware of the RTI Act and willing and able to use it.

C. The rural-urban divide: Only 14% of the applicants were from rural areas, even though over 70% of India’s population lives in rural areas. Though the sample might have a bias in favour of urban areas, even after adjusting for such a bias, the proportion is too small. Awareness levels about the RTI also seem low in rural areas.

D. Grievance redress mechanism: 80% of respondents in rural FGDs, and 95% in urban FGDs, said that they wanted to use the RTI Act in order to seek redress of their grievances. Analysis of RTI applications showed that at least 16% of the applicants were seeking information that was aimed at getting action on a complaint, getting a response from a public authority, or getting redress for a grievance.

E. Ineffectual first appellate process: Except for first appeals filed with the central government or Delhi government, there is less than 4% chance of getting any information by filing a first appeal.

F. Threats to applicants: Applicants, especially from the weaker segments of society, are often intimidated, threatened and even physically attacked when they go to submit an RTI application, or as a consequence of their submitting such an application.

G. Reducing the need to file RTI applications: Certain public authorities, especially those with extensive public dealing (like municipalities, land and building departments, police departments, etc.) receive a disproportionate share of RTI applications compared to other public authorities. In some cases, there is resentment among PIOs as they have to deal with a large number of RTI applications in addition to their normal work.

H. Proactive disclosure: Despite a very strong provision for proactive (suo motu) disclosure u/s. 4 of the RTI Act, there is poor compliance by public authorities. This forces applicants to file applications for information that should be available to them proactively, and consequently creates extra work for themselves, for the concerned public authorities, and for information commissions. 65% of the PA premises inspected did not have a board with the required proactive disclosures and 59% did not have any publications or other material available in their office which the public could inspect in order to access the information that should be proactively available.

I. Record Management: One major constraint faced by PIOs in providing information in a timely manner is the poor state of record management in most public authorities.

J. Training of PIOs: Nearly 45% of the PIOs have not received any training on the RTI Act. In fact, the PIOs interviewed identified lack of training as their number one constraint. A much larger proportion of non-PIO civil servants, who have to provide information to the PIOs or function as first appellate authorities, have not been oriented and trained towards facilitating the right to information.

K. Delays and pendency: There are huge and growing delays in the disposal of cases in many of the information commissions, with pendency of cases growing every month. At the current levels of pendency and rate of disposal, an appeal filed today with the Madhya Pradesh SIC would be taken up for consideration only after 6 years, while the West Bengal SIC would come to it after nearly 17 years! The main reasons behind the delays seem to be the paucity of commissioners in some of the commissions and the low productivity of some of the other commissioners, mainly due to inadequate support. The additional fact that there is no legally prescribed time limit for disposing second appeals not only allows ICs to be indifferent about delays but also prevents appellants from approaching the high court.

L. Enforcing orders: Often, orders of information commissions are not heeded to by the concerned public authority and even penalties that are imposed are not recovered. Many commissions do not have workable methods of monitoring whether their orders have been complied with; leave alone for ensuring that they are complied with.

M. Imposing penalties: A very small proportion of the penalties imposable under the RTI Act (less than 3.7% on the basis of our current estimate) are actually imposed by commissions. Though further research needs to be done on this aspect, preliminary data suggests that there is a correlation between the number of penalties imposed and both the willingness of PIOs to make information available, and the number of appeals and complaints that land up with information commissions.

N. Practicing transparency: Unfortunately, many of the information commissions do not themselves follow the requirements of section 4 of the RTI act. Most of their websites are outdated with very sparse details and much of the required information missing.

O. Independence of commissions: Many information commissioners feel that their dependence on the government for budgets, sanctions and staff seriously undermines their independence and autonomy, and inhabits their functioning.

P. Composition of commissions: The composition of information commissions across the country has a bias towards retired government servants. It is desirable to have a more balanced composition so that diverse expertise is represented in the commission.

Q. Rationalising rules: All states and union territory governments (a total of 34), all the high courts (23) and legislative assemblies (29), the central government, the Supreme Court and both houses of Parliament have a right to make their own rules. This can result in 90 different sets of rules in the country. In addition, the 28 information commissions also have their own procedures, as formulated by the appropriate governments, resulting in a total of 118 sets of rules relating to the RTI in India! Consequently, an applicant is confronted with the often insurmountable problem of first finding out the relevant rules and then attempting to comply with the application form, identity proof, or mode of fee payment requirement, which differ from state to state and are often virtually impossible to comply with.

R. Monitoring and advisory body: The mechanisms for monitoring the implantation of the RTI Act, and for receiving and assimilating feedback, are almost non- existent.

S. Information publication scheme: There is an Information Publication Scheme provided for in the statute in Australia and later adopted by UK too. In this scheme the Information Commission asks each agency to publish its own information on its functioning. The Commission guides the agency and approves the publication scheme.

T. Political parties and the RTI: Nepal has included the functioning of a political party and only NGO with full/part government funding in the agencies whose information can be accessed.

U. Selecting information commissioners: Process of appointment of information commissioners is comparatively more participatory and open in Canada and Scotland. Both countries go through a series of approvals by the Parliament of candidates who are com- petitively short-listed. The transparent process helps in legitimising the position to a much greater degree than appointments that are seen to come through de- liberations of the Prime Minister or government alone.

V. Implementing IC orders: The orders of the Information Commission are binding on the agency in UK. If necessary, it can issue what are known as enforcement notices which, if not implanted, are treated as contempt of court for the purpose of punishment.

W. Accountability to Parliament: Information Commissions in Canada and UK submit detailed annual reports of their activities to the Parliament. This makes them accountable to the Parliament and also helps in making their activities transparent and available for public scrutiny.

Above are 23 Key Findings. On each finding, the publica- tion gives their recommendations, which are not reproduced here. If any reader desires to have them, a soft copy would be forwarded to him/her.

Report of The Committee To evolve Model Format for RTI Replies:

The Committee constituted vide DoPT O/M/No. 10/1/2013-IR dated 16th October, 2014 to evolve a model format for giving information under the RTI Act, held its meeting on 29th October, 2014 at 11:30 a.m. After ex- amining in detail the provisions of the RTI Act, the ex- isting generally followed by the CPIOs in replying to RTI applications, the Committee has made the following observations:

X. There is neither any provision in the RTI Act or RTI Rules for a model/standard format of RTI applica- tion nor any provision for a model/standard format for reply to the RTI applications.

II. Presently, neither any standard practice nor any standard format is being used by the CPIOs in reply to the RTI applications.

In view of the above observations, the Committee has made the following recommendations:

a) There should not be a model/standard format for reply to the RTI application, as there is no such provision in the RTI Act or the RTI rules.

b) Moreover, keeping in view that there is no standard format for RTI applications, there could not be a standard format for their reply.

c) However, the following points can be uniformly ad- opted by the CPIOs while replying to the RTI applications:

i. The name, designation, official telephone no. and email id of the CPIOs should be clearly mentioned.

ii. In case the information requested for is denied, rea- sons for denial quoting the relevant sections of the RTI Act should be clearly mentioned.

iii. In case the information pertains to other public author- ity and the application is transferred u/s. 6(3) of the RTI Act, details of the public authority to whom the ap- plication is transferred should be given.

iv. In the concluding Para of the reply, it should be clearly mentioned that the First appellate Authority will reply within 30 days of receipt of reply of CPIO.

v. The name, designation, address, official telephone no. and e-mail id of the First Appellate Authority should also be clearly mentioned.

vi. Wherever the applicant has requested for certified copies of the documents or records, the CPIO should certify the documents or records by putting a seal of his name, designation and signing with date. Above the seal, the remarks that “documents/records pro- vided under the RTI Act” should be endorsed.

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Part C Information on & Around

Education Cess:
I had filed an RTI application on the subject of Education cess. Surprisingly, I received two replies – one: CPIO and under secretary; two: CPIO and Sr. Account Officer (LCS). Both give different figures

I am following it by writing to both of them to find out how the figures differ.

RTI quarrel between Arvind Kejriwal and Prashant Bhushan/ Yogendra Yadav:
One of the five conditions put forth by Prashant Bhushan and Yogendra Yadav before Arvind Kejriwal was the adoption of RTI. While Kejriwal said he had agreed to this demand, questions have been raised about why it had to be made at all as AAP has always been a vociferous advocate for all political parties to be brought under the ambit of the RTI Act.

Kejriwal, who made a mark as an RTI Activist before floating the party, asked Yadav why he made this demand as he had failed to implement it in Haryana for over a year while he had been the state convener.

“At this point it is also imperative for the party to do some soul searching. It cannot be denied that after making such a big deal about the CIC order in 2013, which said the six major national parties should be brought under RTI, AAP failed to implement it on itself,” said a party member.

Heart Attacks:
Data given out by BMC in response to an RTI query showed that 29,393 deaths due to heart attacks were registered in the city between March 2014 and March 2015. In the corresponding period of the previous year, 24, 603 Mumbaikars had succumbed to heart attacks.

The seriousness of the problem can be gauged from the fact that heart attacks account for a third of annual deaths in the city. For instance, 31% of the 93, 254 deaths recorded in Mumbai in 2014-15 were due to heart attacks. The other big killers are TB (19 each day) and cancer (18 a day).

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Part B RTI Act, 2005

PMO not disclosing foreign travel expenses: CIC panel

New Delhi, May 24 (Agencies): The PMO not disclosing information about expenses incurred on foreign visits of the Prime Minister notwithstanding, a CIC-constituted committee has recommended not only putting out such details proactively by all ministries but regular updating as well.

The committee of former Chief Information Commissioner A N Tiwari and Information Commissioner M. N. Ansari, constituted by the CIC gave its report on “Transparency Audit: Towards An Open and Accountable Government”.

It referred to the circular issued by the ministry dated September 11, 2012 where it asked all departments to proactively disclose expenses incurred on the foreign and domestic visits of their respective ministers.

“These disclosures should be updated once every quarter”, the committee said in its report asking the government to also disclose other details such as places visited and the institutions/individual interacted, period, number and the names of the members in the official delegation, mode of conveyance, travel expenses and source of funding and outcome of the visit.

It said a democratic government keen on empowering the people and delivering to them goods and services speedily and efficiently, cannot allow walls of secrecy to separate them from the very people they serve.

“Transparency brings the government closer to its people –a closeness which underpins good governance. In spite of repeated directions to the public authorities, the results on account of voluntary disclosures have been below par,” the committee observed.

It said quite large numbers of wholly avoidable RTI petitions by citizens for information, which should even otherwise be openly available, are still being filed.

“One cardinal aspect of the RTI i. e. Timely furnishing of quality information to the citizen, became difficult to be adhered to, while the cost for disclosing information, at well levels, kept increasing,” it said.

The Prime Minister’s Office has been refusing to disclose information related to expenses incurred on the abroad visits of Prime Minister Narendra Modi citing various excuses such as the records sought for being “vague”.

These refusals to part with the information are being made even though Central Information Commission, in an order,, had directed the Cabinet Secretariat to make public expenses incurred on the travel of ministers and VVIPs because of large public interest in the matter.

“We have been noticing a lot of public interest in the visit of such high dignitaries as the President, the Vice-President and the Prime Minister of India. Quite often, one comes across RTI applications seeking similar information about these visits,” Chief Information Commissioner Satyananda Mishra had said.

Following the orders of the CIC, the then Prime Minister Manmohan Singh had started the practice of making public on the official website details of expenses incurred on his visits as well as on the visits undertaken by the Ministers.

Even DoPT had issued the circular asking all ministries to proactively disclose these details.

Complying with the mandatory provisions of sou-motu disclosure under the transparency law, the PMO under Manmohan Singh has placed in public that a sum of over Rs. 642 crore was incurred on his air travels abroad between 2004 and 2013.

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Part A Decision of High Court

Disclosure of Income Tax Returns

Issue before the Hon. Court was whether income-tax returns of Ajit Pawar can be disclosed to the Petitioner, Mr. Shailesh Gandhi.

Mr. Gandhi’s attempt to get such IT return and balance sheets had failed before PIO, FAA & Central Information Commission (CIC), even though he pleaded for it stating:

“There is a larger public interest in disclosing this information to compare his affidavit given to the Election with his Income Tax returns”.

CIC referred to the judgement of the Apex court in Girish Ramchandra Deshpande’s case (see “Right o Information – a route to good Governance” published by PCGT and BCAS Foundation, Page 241) (2013, 1 Supreme Court Cases 212) holding that the details disclosed by a person in his Income Tax Returns is personal information which has been exempted from disclosure under clause (j) of section 8(1) of the said Act, unless it involved a larger public interest and the CPIO and or State Public Information Officer or the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information. The Central Information Commissioner had observed that in the present Appeal the Petitioner has not been able to prove any larger public interest with corroborative evidence and therefore upheld the decisions of the Central Public Information Officer and the First Appellate Authority and disposed of the said Second Appeal.

Mr. Gandhi’s counsel made numerous submissions to justify as to why such disclosure is not to be denied. The same included:

a) That the Judgement in Girish Ramchandra Deshpande’s case (supra) does not lay down any preposition of law and therefore cannot be applied.

b) That the disclosure of the information sought for by the Applicant would be in larger public interest which outweighs the breach of privacy if any of the Respondent No. 3.

c) That a Division Bench of this court in the case of Surup Singh Naik vs. State of Maharashtra had dealt with the proviso to Section 8(1) (j) and has held in the said case that the information which cannot be denied to the Parliament or the State Legislature cannot be denied to the citizen.

d) That the disclosure of the information is in larger public interest has been demonstrated by the Petitioner by making out a case in the Appeal namely that the same would amount to reducing corruption and increasing the faith in the elected representatives.

e) That it has been held in the matter of PUCL vs. Union of India as also in the matter of R. Rajgopal alias R. R. Gopal & Anr. vs. State of T. N. & Anr. and in case of ADR vs. PUCL that the public interest element involved in divulging information relating to public servants, MP’s and Ministers outweighs the right to privacy.

“Since the right to privacy has been recognized as a fundamental right to which a citizen is entitled to, therefore unless the condition mentioned in Section 8(1) (j) is justified, the information cannot be provided. Hence the burden on the Applicant is much more onerous than may be in a routine case. As indicated in the earlier part of this judgement the reason mentioned in the original application as supplemented by the grounds in the First Appeal hardly make out a case of public interest. Hence in the instant case, the said burden cannot said to have been discharged by the Petitioner. Hence, the finding of the First Appellate Authority as well as the CIC that the Petitioner has not made out any case for disclosure of the information on the ground of public interest cannot be faulted with.”

The Petitioner had sought to place reliance on the proviso to section 8(1) (j) of the said Act and had sought to contend that the authorities below have not considered the application of the Petitioner on the touchstone of the said Proviso.

The Court noted:
“In my view therefore, the proviso cannot be sought to be interpreted in the manner which the Learned Counsel for the Petitioner seeks to do. There is also a basic fallacy in the contention raised on behalf of the Petitioner. The Petitioner wants to proceed on the hypothesis that the information sought by him cannot be denied to the Parliament. In so far as the Parliament is concerned, the Parliament has its own rules of business and it therefore cannot be presumed that the information in respect of Income Tax Returns of a Member of Legislature would be sought. The same would undoubtedly be in the discretion of the Honorable Speaker. In the said context, it is also relevant to refer to section 75A of the Representation of the People Act under which every elected candidate for a House of Parliament has to furnish information relating to the movable and immovable property, his liabilities to any public financial institution, his liabilities to the Central Government or the State Government to the Chairman of the Council of States or the Speaker of the House of the People i.e. Loksabha or the Chairman of the Council of the State i.e. Rajyasabha. Hence there are adequate provisions in the Representation of the People Act under which the information sought is to be provided to the Parliament to the extent mentioned in the said provisions and therefore reliance cannot be placed on the proviso to section 8(1) (j) to contend that the exemption provided in the said section would not operate.”

For the reasons afore stated, the court held that the impugned order dated 15-5-2013 passed by the Central Information Commissioner, confirming the orders passed by the First Appellate Authority and the CPIO did not suffer from any illegality or infirmity.

Mr. Shailesh Gandhi’s reaction to above judgement:

” Key points which I feel the judgement has not addressed:

1. There is a proviso to the exemption in section 8(1) (j) which states: “Provided that the information, which cannot be denied to the Parliament or a State Legislature, shall not be denied to any person.” This proviso was accepted by a division bench of Bombay High Court in the Surup Singh Naik case where I had said that there is a perception that powerful people escape prison and spend their prison term in Hospital. The Court ordered the medical records should be given. In the Ajit Pawar case I had said: “There is a general belief that politicians and elected representatives are corrupt and amass wealth at the expense of the public. There is also a common belief that Income Tax authorities do not check that IT returns of those who are elected and their affidavits filed at the time of standing for elections. If this is true, citizens will act as monitors and help correct such practices. On the other hand if citizens’ apprehensions are not true, it would enhance the trust and respect for the elected representative, which is necessary for a healthy democracy. Besides it would also improve the Citizen’s trust in the Income Tax department.’ This has not been held to be in the larger public interest and the proviso has been treated as if it is irrelevant.

In the ADR-PUCL judgement, the Supreme Court has ordered that those who want to be public servants, – get elected, – must declare their wealth. If the affidavits match the IT returns what harm would come to them? The citizen’s right to know about his elected representative cannot become less after he has become a public servant.
2. In the Rajgopal judgement the Supreme Court has said that for matters of public record there can be no claim for privacy and the claim for privacy of a public servant is still lower.
3. Filing an ITR is a statutory duty and hence it is a public activity.
4. Since the ratio of the ADR-PUCL and Rajgopal judgement has not been dealt with in Girish Ramchandra Deshpande judgement, it is per incuriam.
5. The SC in Girish Deshpande judgement mentions section 8(1) (j) without the proviso.
6. I have given an explanation of the larger public interest and hence this would fulfill the conditions of the Deshpande order.
7. No reasoning has been given for the comments in the Deshpande order and it does not become precedent. It only says that the Court agrees with the CIC. The CIC order again refers to an earlier five member’s order in which the issue did not even concern a public servant.”

He further notes:

“I had felt that the Girish Ramchandra Deshpande judgement by the Supreme Court had constricted RTI by expanding the scope of Section 8(1) (j) far beyond the law. As expected it was rejected by the PIO, FAA and the CIC. I then approached Bombay High Court in a writ. I expected just a 5% chance of my contentions being accepted by the Court. The Court has dismissed my petition yesterday. I am thinking of challenging this decision before the Supreme Court.

The Girish Deshpande judgement is being used everywhere to deny most information regarding public servants which could expose wrongdoing, arbitrariness or corruption.

Yes, I feel the pain of not being able to reverse the Girish Ramchandra Deshpande judgement of the Supreme Court. I think the High Court has not given reasons for not accepting most of my contentions; they are just statements that it does not agree with me.”

[Shailesh Gandhi vs. CIC, CPIO and Shri Ajit Pawar: Writ Petition No. 8753 of 2013, judgement pronounced on 11.06.2015].

BCAJ Admin

PART C: Information on & Around

Information on Sheila Dikshit:
The CIC has directed the Delhi government to make public a 2008 Lokayukta order that indicted former chief minister Sheila Dikshit on charges of misuse of public funds. Lokayukta Manmohan Sarin’s order had charged Dikshit with using funds for publicity and printing photos on loan forms for Delhi Swarojgar Yojna. Sarin had sought then President Pratibha Patil’ permission to recover Rs. 11 crore for the misuse of funds, which was rejected. The CIC order came after activist S C Agarwal sought information on the issue.

Robert Vadra’s land deal in Haryana:
Gurgaon resident Dharamvir Yadav filed an RTI application in 2013, which revealed that separate building plans for both plots in May field Garden (N29 owned by Vadra and N30 by a private company) were approved in November 2010. But work on a single structure–the guesthouse– straddling both plots commenced in 2011. Yadav claims the building was completed by March 2014. After this, Satpal Thakran, another resident of the same township, filed an RT I query in May this year seeking more details on the plots, but these got stonewalled by authorities who cited Vadra’s request not to disclose details. The TO I is now in possession of correspondence between the Haryana Urban Development Authority, Municipal Corporation of Gurgaon and District Town Planner over Change of Land Use permissions and occupation certificates, which show how rules were bent at every stage.

The Times of India had reported on how RT I pleas to uncover details of a plot registered in the name of Vadra were stonewalled. ToI now has documents which prove that not only was a single structure built on two plots of land ( one owned by Vadra, the other private company), but also that a change of land permission from residential to commercial was sought only after the building was completed, both of which are in gross violation of the law.

Maharashtra State Police Transfer rules:
Under the state police transfer rules, officers cannot be transferred before they complete two years in one post unless under exceptional circumstances. But an RT I query shows that 147 of the 150 transfers this year, from January to September, were under “exceptional” circumstances. This was revealed following a query filed under RTI Act by former central information commissioner Shailesh Gandhi, who asked for information on the number of deputy superintendents of police and officers above being transferred before their tenure was over this year. The data provided showed that only three out of 150 transfers were according to the law.

The transfers have raised questions about political interference in state policing with senior officers often found queuing up at politicians’ offices to choose postings. Some of the “exceptional reasons” cited are health problems and the distance between home and work place.

The data provided by the state police headquarters under RTI Act shows that 33 officers were transferred in February and 91 in June, just two months after the Parliament elections. On 23rd August, more officers were shifted, and all fell under the “exceptional” category.

Papers on First chief CIC’s resignation:
The Central Information Commission, entrusted with monitoring of record-keeping in government bodies, has lost the records relating to the resignation of the first Chief Information Commissioner Wajahat Habibullah who headed the institution for nearly five years. In an RTI response, the transparency panel said the lost files related to Habibullah’s resignation are not readily traceable, raising questions about record-keeping in the CIC. “The concerned file containing the communication relating to then Chief Information Commissioner Wajahat Habibullah regarding his resignation are not readily traceable though efforts have been made. The information will be provided as an when available,” Sushil Kumar, Deputy Secretary at the CIC, said in response to RTI application filed by Commodore (retd) Lokesh Batra. Batra told PTI that around 20th October, 2009 Habibullah had resigned to join as Chief Information Commissioner of Jammu and Kashmir.

Ajit Pawar makes RTI application:
NCP leader Ajit Pawar made use of the Right to Information (RTI) Act to scrutinise a large number of files that former chief minister Prithviraj Chavan had cleared in just 15 days.

Pawar, who was Chavan’s deputy in the Congress-NCP government, said that he had already filed RTI queries over the files from the urban development department. “Files stuck for a long time were suddenly cleared in the past 15 days. What suddenly happened?” he said. “As an ordinary citizen, I have sought information about the decisions taken in the urban development department.” [Source – news items published in The Times of India]

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PART B: RTI Act, 2005

On 12-09-2014, RTI Foundation day, very interesting statistics are compiled by RTI Assessment & Analysis Group (RAAG) and National Concern for Peoples’ Right to Infor mation (NCPRI). Here under, I report some of them:

RTI Rules:
India has one Right to Information (RTI) Act but 118 separate sets of rules formulated independently by states, courts, information commissioners, Parliament and state assemblies that run a maze around the legislation.

The rules dictate varied fees, application format, number of words, type of identity proof required and mode of payment making the process of seeking information a complex one.

For instance, 34 states and union territories have prescribed application fee of Rs. 10. But cost of pursuing an RTI application could range between Rs. 50 to Rs. 100 excluding cost of information. Haryana charges Rs. 50 for all RTI applications while Arunachal Pradesh charges Rs. 50 for most applications but Rs. 500 for information related to bids, tenders or business contracts.

Only Andhra Pradesh has cut down on the fees—Rs. 10 for cities, free of cost for village level and Rs. 5 for subdistrict level. Sikkim charges Rs. 100 for both first and second appeal, while filing a first appeal in Madhya Pradesh costs Rs. 50 and a second appeal Rs. 100. While the central government has mandated Rs. 2 per photocopy, Chhatisgarh has limited the number to 50 pages while Arunachal charges Rs. 10.

To complicate things further, inspection of documents is allowed free of cost by some states for the first hour and then charges of Rs. 5 are levied in Tamil Nadu, Tripura, Sikkim and Uttarakhand. The cost of inspection of documents in Daman and Diu is Rs. 100 a day for a maximum of 3 hours and if the information sought is older by a decade or more, the public authority can charge an additional Rs. 25 an hour. States have also placed odd restrictions on the format of the application. In Karnataka, Bihar, Chhattisgarh and Maharashtra the length of the RTI application cannot exceed more than 150 words while the Centre has mandated a 500 word limit.

There are similar inconsistencies in rules related to proof of identity required by public authorities. While the RTI act does not mandate any proof of identity section 3 does say that only Indian citizens can use the law. This has led to states like Goa, Gujarat, Odisha, Sikkim insisting on identity proof of the applicant.

RTI users & where do they live:
Maharashtra Government’s notification:

On 17th October, the Maharashtra Government issued a notice directing all government departments not to part with information unless it is in “public interest.” “The notification violates the RTI Act and seems to be designed to promote corruption,”

(Author’s Note: Compare this with the judgement reported under part A in this issue. I believe that the notification is against the spirit of the RTI Act and is also illegal)

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Part C Information on & Around

Sushma Swaraj:
Documents procured under the RTI Act revealed
that the Shivraj Singh Chouhan government in Madhya Pradesh appointed
foreign minister Sushma Swaraj’s husband and daughter as government
lawyers.

“The government should make a clear policy for
appointment of counsels. It clearly reflects that the VIPs and their kin
are being benefited,” alleged Ajay Dubey of Transparency International,
which procured the documents.

Chargesheet in Mahatma’s killing:
The
Central Information Commission (CIC) has directed the home ministry to
make public the FIR and chargesheet filed by Delhi police on the
assassination of Mahatma Gandhi on 30th January, 1948.

The order
came after Odisha-based Hemanta Panda sought the information under the
RTI Act. Panda wanted a copy of the FIR and chargesheet among other
pieces of information including whether any autopsy was done as per law.
The ministry had forwarded the application to the National Archives of
India, director of Gandhi Smriti, where Gandhi spent his last days and
was assassinated. Gandhi Smriti and Darshan Samiti told him that “no
post mortem examination was performed as per the wishes of the family”.
Panda was also informed by Gandhi Smriti and Darshan Samiti that they
did not have any information related to the FIR and the subsequent
charge-sheet filed in relation to the assassination.

Lalit Modi Passport:
The
external affairs ministry has refused to answer an RTI application
containing seven questions about scandaltainted former IPL boss Lalit
Modi’s passport.

The first three questions included why External
Affairs Minister Sushma Swaraj did not advise Modi to apply for a
temporary travel document to the Indian High Commission in London; why
the minister did not insist on Modi’s return to India as a condition;
and who decided not to file an appeal in the Supreme Court against Delhi
High Court’s ruling setting aside cancellation of Modi’s passport and
whether the Enforcement Directorate (ED) at whose instance the passport
was cancelled, was consulted. Questions four to seven included a query
on whether the government has lodged any objections to UK for granting
residency permit to Modi; what steps the government has taken since the
issuance of fresh passport to him to enforce the ED summons; and the
government’s response to Modi’s “wild charge that his life will be in
danger if he returned to India.”

The RTI query, filed by one
Rayo from Haryana, was received by the ministry on 19th June when the
opposition was piling up pressure on Swaraj on the Lalitgate row. In its
26th June reply, the MEA said questions one to three do “not seem to
fall under the purview” of the RTI Act. About queries four to seven, the
ministry said that “no information is available with EAM’s office.”

The
External Affairs Ministry (EAM), however, said the application has been
“transferred” to its consular, passport and visa division as well as to
the finance and home ministries.

The EAM’s action drew stinging
criticism from the opposition, with the Congress calling it against the
“spirit” of RTI Act and the CPI (M) alleging the transparency law has
been “sabotaged” by the Modi government. “This is against the spirit of
the RTI ACT,” said senior Congress leader P. C. Chacko.

“In
fact, any private information need not be disclosed but there is a case
which is affecting even the security of the country also and person is
fugitive, who is an absconder, against whom there is an inquiry going
on…and when information is sought on that, it simply cannot be treated
as a private matter,” Chacko added.

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Part B RTI Act, 2005

Appeals against SIC orders:
The State Information Commission’s order has been upheld only in one out of the 84 appeals filed in the last decade by agencies whose documents were sought to be made public.

A query under the Right to Information (RTI ) Act has revealed that of the 84 appeals filed in the Bombay High Court and the Supreme Court between 2006 and so far in 2015, the SIC order was upheld only in one case.

RTI Activist Galgali had made the plea to find out what happens to orders once passed by the information chief for disclosure of documents. “Appeals against replies filed by the SIC have resulted in low success rate for the Commission in the last 10 years,” Galgali told ToI. Most matters went to the HC, while three are pending in the Supreme Court.

The agencies, which approached the Courts against SIC’s orders included the state home department, Mumbai University, Reliance Energy, BMC, and police department, said the activist.

Galgali had filed an RTI query with the Maharashtra State Information Commission seeking information about the cases in which agencies had gone to Court against orders seeking disclosure of documents or information. The SIC refused the information on the grounds that there was no such data available with it. The shocking reply prompted Galgali to file an appeal under RTI. Following his appeal, the SIC informed him that between 2006 and 2015, 84 cases went to Court and the SIC’s order was upheld only in one case. The other 83 either had the SIC order overturned or the matters are still pending.

Galgali said his query also revealed that in many cases, the SIC appeared not to take “much interest” in the court cases. So, the SIC’s orders were not properly defended.

Inspection of documents:
In a progressive move, Municipal Commissioner Ajoy Mehta has issued a circular on the implementation of the Right to Information Act that aims at reducing red tape in the civic body.

The circular points out that citizens applying for information under the RTI Act are often summoned by civic officials to inspect documents, even when they have not asked for an inspection or when the information they have asked for is not voluminous. The circular has discouraged the practice, and has asked public information officers (PIOs) to supply copies of documents after counting the number of pages requested and charging the applicant per page.

“In cases where the applicant has applied for inspection of the documents or the information he has requested is voluminous, an index of all the documents should be prepared before he is called for an inspection. Each page in the file must be numbered. Three dates & timings should be intimated to the applicant before he is called. If these dates are not convenient to the applicant, he should be asked to get in touch with the PIO” says the circular.

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Part A Decision of High Court

Supreme Court on disclosure of medical expenses of Judges
The Supreme Court has dismissed the CIC-verdict allowing disclosure of medical-expenses of individual judges. Significantly, it was specifically mentioned in the referred RTI petition that only consolidated annual amount of total medical expenses of an individual judge was required without any supporting documents like medical-bills which directly or indirectly could reveal the disease of the concerned judge. The Supreme Court verdict will have far-reaching consequence when other public authorities will also cite the Supreme Court verdict for not providing similar information about others.

It is noteworthy that an RTI response had revealed medical allowance claimed by a member of fourth Delhi Legislative Assembly Vipin Sharma till October 2013 was of Rs. 1,31,93,055. There are reports of large-scale misuse of medical-reimbursement by those entitled to claim from public-exchequers. In a country where commoners do not have even basic medical facilities, rules should be amended so that entitled ones may get free medical-facilities only in government hospitals and dispensaries may be at priority level. Another alternative can be government providing free medical facilities to entitled ones if they wish treatment at private institutions. It will prevent frauds in medical claims because insurance companies pass medical claims.

In the meanwhile, it is suggested that Union Government should immediately legislate for compulsorily putting all annual medical-reimbursements of individuals from public-exchequers on website. However, it may be made clear that only medical expenses may be in public domain without giving any right to citizens to ask for supporting documents of any kind. Earlier resistance was there even in disclosing travel-details as ‘personal’ details. But ultimately it had to be done through a circular from the Department of Personnel & Training (DoPT).

Note: The Supreme Court recently underscored the need to bring accountability and transparency in the functioning of political parties. The Supreme Court sought a response from the Centre and Election Commission on why they should not be brought within the ambit of Right to Information Act. A bench of Chief Justice H. L. Dattu and Justices Arun Mishra and Amitava Roy also issued notice to all six national parties – BJP, Congress, BSP, CPI, CPM and NCP – seeking their stand on why they should not be declared public authorities to be amenable to the transparency law. It granted them six weeks to file their replies.

However, when it comes to itself, the Supreme Court ruled that it is outside purview of RTI and exempted from providing information.

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PART C: Information on & Around

The PMO to Seek Modi’s Nod To Disclose ‘Riot’ Letters To Vajpayee:
The Prime Minister’s Office will take the nod of Gujarat government and chief minister Narendra Modi for releasing the correspondence exchanged with the then Prime Minister Atal Bihari Vajpayee after the post – Godhra Riots in 2002.

The information was earlier denied by the central public information officer of the PMO citing section 8 (1) (h) of the Right to Information Act, without giving any reasons, which exempts information that would impede the process of investigation or apprehension or prosecution of offenders.

The decision was overturned during the appeal before his senior Krishan Kumar, director Prime Minister’s Office, where the applicant had objected to the response of the CPIO saying he failed to give germane reasons behind denial of information.

The applicant had also underlined that the correspondence was 11 years old and was not likely to have an impact on the investigation, apprehension and prosecution of offenders. Upholding the reasons given by the applicant, the appellate authority directed the CPIO to provide additional details with regards to the case.

“As regards contention that the grounds for exemption claimed under section 8 (1) (h) are not tenable, CPIO is directed to obtain fresh inputs in this regards and provide the same to the applicant within 15 working days”, Krisnan Kumar, director and appellate authority had decided. In the last response to six and a half month old RTI application, Rizwi said after the appeal decision that the matter was referred to the office for fresh inputs.

“It is informed that third party (Gujarat Government and Modi in the present case) consultation under Section 11 (1) of the RTI Act is underway on a similar request and response regarding disclosure of information in this regard will be provided to you after due process as envisaged in section 11 of the Act is completed ,” he said.

Gadkari and I.T Department:

BJP has called an RTI reply from the income tax department, which said no investigation was pending against former party president Nitin Gadkari, as a “clean chit” to the leader.

The I.T. department, however, says its investigation in the matter of Purti Sugar and Power Ltd. is actually over and the matter is now at the stage of assessment.

Sources in the I.T. department said Gadkari was never the focus of investigation as he had a minority stake in the company. “The investigation was against Purti group which had received dubious investments through shell companies. Gadkari came in the limelight as he is the founder – promoter of the company”, said an I.T. officer. The RTI query, filed by one Sumit Dalal in February, asked the department,” Is any inquiry/investigation pending against Mr. Nitin Gadkari?” After initially refusing to reply, the Nagpur I.T. department, following an appeal, replied in April that no inquiry was pending against Gadkari in its Department.

Citing the RTI reply, BJP is called the case a political conspiracy to frame Gadkari at a time when he is about to be elected president of the party for a second term.

Spice jet Lies

1. Advertising professional Anil D’Souza writes “I was booked on Spice jet flight SG – 109 from Delhi to Mumbai on May 23 last year, which was scheduled for departure at 10:10 am. On reaching the airport at 8 am, a few of us were told that the flight had been advanced by five hours and that SMSes had been sent to the passengers informing the changes”.
“I was told by the airline staff that they couldn’t find my mobile phone number or e mail ID. I flew to Delhi on a Spice jet flight and received the information/updates through SMSes and e mails. Did they lose my contact details all of a sudden?” he asked.

2. D’Souza spent around Rs. 9,000 on an Indigo ticket to return to Mumbai. (The Spice jet flight costed him around Rs. 6,000) he was refunded Rs. 8,269.80 by the airline two months later. After the airline rejected his claim of additional compensation, he filed a query under the RTI Act and demanded to know the status of the flight in question from the DGCA.

3. ”Replying to the RTI query, the DGCA said that the flight SG – 109 had been cancelled on May 23. I was shocked at the airline’s blatant bluff and have initiated action in the consumer court. I will also initiate criminal proceedings against Spice jet”’ he said.

A senior Spice jet official said that the flight had indeed been advanced by five hours. “It was operated under a different flight number. Nevertheless, we will probe the matter,” the official said. D’Souza, however, insists that the airline had been lying to him for the past 10 months. “I wrote to Spice jet demanding an explanation and got a reply from the airline’s customer relations executive, who wrote that the flight in question had been rescheduled due to ‘operational reasons.’ He further said that as per the airline records, only travel agency/portal landline number were updated as flyers’ primary numbers”, D’Souza said. Determined to make the airline pay for the ‘lapse’, he said, “I will make sure the airline submits the proof of having contacted all the passengers booked on that flight. It is obvious that the flight didn’t take off.

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PART B: RTI Act , 2005

Hunt For The Mole

An RTI activist got a shock of his life after he received a call soon after he submitted an application under the RTI Act. The activist had sought information in connection with the MLA Funds. The activist was removed from the organisation. Undeterred by the reprisal, the activist has approached Chief Information Commissioner Ratnakar Gaikwad to demand action against the information officer who disclosed his identity. It is not the first time that the identity of people seeking information under RTI Act has been revealed to a rival party. From the time an RTI activist submits an application to secure information on a new project; he receives threatening calls from the builder. In several cases the builder uses illegal means to ensure that the RTI application is not processed or delayed indefinitely. It’s high time that the Chief Information Commissioner issues fresh instructions on the secrecy, said Pune based RTI activist Vijay Kumbhar.

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PART A: ORDERS OF CIC & the court

Section 6 (1) of the RTI ACT:
The appellant submitted an RTI application dated 28th December 2012 before the CPIO, Health Department. UT Chandigarh seeking copies of his Casual Leave Applications w.e.f 1/1/2007 – 28/12/2012 along with Annexures. Appellant also sought Casual Leave Applications of Shri Harbans Singh for the same period.

Decision Notice:
“After hearing both the parties, Commission directs the CPIO, Malaria Wing (Health Department) to obtain the requested information from the holder of the information namely CPIO, Civil Dispensary, Sector – 38 where the appellant was previously posted and also from all the other Public Authorities where the appellant was during the period 2005 – 2010 pertaining to his C.L. record and to provide the same to the appellant within three weeks of receipt of the order.

Commission accepts the explanation of the CMO, In charge, Govt. Civil Block Hospital regarding the delay in providing information pertaining to the fourth C.L. application of the appellant and condones the same. Commission draws the attention of the CPIOs and the appellant to the observations of the Apex Court in the matter of Central Board of Secondary Education and Anr. vs. Aditya Bandopadhyay and Ors. (Civil Appeal No. 6454 of 2011 dated 9.8.2011, [RTIR III (2011)242 (SC)] where in it has been observed that:

“37. The right to information is a cherished right. Information and right to information are intended to be formidable tools in the hands of responsible citizens to fight corruption and to bring in transparency and accountability. The provisions of RTI Act should be enforced strictly and all efforts should be made to bring to light the necessary information under Clause (b) of Section 4 (1) of the act which relates to securing transparency and accountability in the working of public authorities and in discouraging corruption. But in regard to other information, (that is information other than those enumerated in section 4 (1) (b) and (c) of the Act), equal importance and emphasis are given to other public interests (like confidentiality of sensitive information, fidelity and fiduciary relationships, efficient operation of governments, etc.). Indiscriminate and impractical demands or directions under RTI Act for disclosure of all and sundry information (unrelated to transparency and accountability in the functioning of public authorities and eradication of corruption) would be counter – productive as it will adversely affect the efficiency of the administration and result in the executive getting bogged down with the non – productive work of collecting and furnishing information. The act should not be allowed to be misused or abused, to become a tool to obstruct the national development and integration, or to destroy the peace, tranquility and harmony among its citizens. Nor should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty. The nation does not want a scenario where 75%of the staff of public authorities spends 75% of their time in collecting and furnishing information to applicants instead of discharging their regular duties. The threat of penalties under the RTI Act and the pressure of the authorities under the RTI Act should not lead to employees of a public authorities prioritizing ‘information furnishing’, at the cost of their normal and regular duties.”

Appellant was directed to desist from misusing the cherished right given to him under the transparency Act in future.

Appellant/Complainant: Ramesh Kumar vs. Health Department (Malaria), UT Chandigarh; appeal no: CIC/ DS/A/2013/000927 decided on: 11.12.2013: citation: RTIRI (2014) 49 (CIC)]

Section 19 (8) (a) of the RTI ACT:
Vishwas Bhamburkar the applicant had filed an application on14.5.2011 with the PIO in the Ministry of Tourism, PSW Division, seeking an authenticated photo copy along with the file nothings of the Project Report for Development of Ayurvedic Health Resort and Herbal Garden at Vgamon, which was submitted by the Department of Tourism, Government of Kerala in December, 2005 and was bearing file number 426/D(CN) dated 20.02.2006.

The PIO in his reply informed the applicant that the said project report had not been received in the Ministry of Tourism. Being dissatisfied with the reply furnished by the PIO, the respondent preferred an appeal before the First Appellate Authority. The following was the order passed by the First Appellate Authority:

“The noting initials on the cover page of the Project Report produced by Shri Bhamburkar suggest that the Report was received in MOT. However since it is only a photo copy, its authenticity cannot be taken for granted. CPIO& Asstt. DG (PSW) is directed to make thorough search for the said Project Report and records pertaining to its receipt and movement in the Ministry. If the report is traced, its authenticated copy will be supplied by the CPIO to the applicant. If the Report is not traceable, but records are found which confirm that the Report was received in the MOT, a report may be lodged with the Police regarding the missing documents. An intimation to this effect may then be conveyed to the applicant by the CPIO. In case neither the Project Report nor any records of its receipt in Ministry are available, the applicant may be so informed by the CPIO. Action has to be taken within 15 days”.

Being dissatisfied the applicant filed second appeal before the Central Information Commission.

In this regard, the Commission observed that either the PIO or some other officer could be hiding the information or the report being submitted could be forged or it could be a conspiracy by which the report and all associated papers were taken away from the Government. Being aggrieved from the order of the Commission, the Union of India is before the High Court of Delhi by way of the writ petition.

The order of the High Court of Delhi is summarised as under:

“The learned counsel for the petitioner assailed the order of the Commission primarily on the ground that the Right to Information Act does not authorize the Commission to direct an inquiry of this nature by department concerned though the Commission itself can make such an inquiry as it deems appropriate. Reference in this regard is made to the provisions contained in Section 19 (8) of the Act. A careful perusal of sub section (8) of Section 19 would show that the Commission has the power to require the public authority to take any such steps as may be necessary to secure compliance with the provisions of the Act. Such steps could include the steps specified in clause (i) to (iv) but the sub – section does not exclude any other step which the Commission may deem necessary to secure compliance with the provisions of the Act. In other words, the steps enumerated in clause (i) to (iv) are inclusive and not exhaustive of the powers of the Commission in this regard.”

“The Right to Information Act is a progressive legislation aimed at providing, to the citizens, access to the information which before the said Act came into force could not be claimed as a matter of right. The intent behind enactment of the Act is to disclose the information to the maximum extent possible subject of course to certain safeguards and exemptions. Therefore, while interpreting the provisions of the Act, the Court needs to take a view which would advance the objectives behind enactment of the Act, instead of taking a restricted and hyper – technical approach which would obstruct the flow of information to the citizens.”

“This can hardly be disputed that if certain information is available with the public authority, that information must necessarily be shared with the applicant under the act unless such information is exempted from disclosure under one or more provisions of the act. it is not uncommon in the government departments to evade disclosure of the information taking the standard plea that the information sought by the applicant is not available. ordinarily, the information which at some point of time or the other was available in the records of the government, should continue to be available with the concerned department unless it has been destroyed in accordance with the rules framed by that department for destruction of old record. therefore, whenever an information is sought and it is not readily available a thorough attempt needs to be made to search and locate the information wherever it may be available. it is only in a case where despite a thorough search and inquiry made by the responsible officer, it is concluded that the information sought by the applicant cannot be traced or was never available with the government or has been destroyed in accordance with the rules of the concerned department that the PIO would be justified in expressing his inability to provide the desired information. even in the case where it is found that the desired information though available in the record of the government at some point of time, cannot be traced despite best efforts made in this regard, the department concerned must necessary fix the responsibility for the loss of the record and take appropriate departmental action against the officers/officials responsible for loss of record. unless such course of action is adopted, it would be possible for department/office, to deny the information which otherwise is not exempted from disclosure, wherever the said department/office finds it inconvenient to bring such information into public domain, and that in turn, would necessarily defeat the very objective behind enactment of the right to information act.”

“Since the Commission has the power to direct disclosure of information provided, it is not exempted from such disclosure, it would also have the jurisdiction to direct an inquiry into the matter wherever it is claimed by the PIO that the information sought by the applicant is not traceable/readily traceable/currently traceable. Even in a case where the PIO takes a plea that the information sought by the applicant was never available with the government but, the Commission on the basis of the material available to it forms a prima facie opinion that the said information was in fact available with the government, it would be justified in directing an inquiry by a responsible officer of the department/office concerned, to again look into the matter rather deeply and verify whether such an information was actually available in the records of the government at some point of time or not. after all, it is quite possible that the required information may be located if a thorough search is made in which event, it could be possible to supply it to the applicant. fear of disciplinary action, against the person responsible for loss of the information, will also work as deterrence against the willful suppression of the information, by vested interests. it would also be open to the Commission, to make an inquiry itself instead of directing an inquiry by the department/office concerned. Whether in a particular case, an inquiry ought to be made by the Commission or by the officer of the department/office concerned is a matter to be decided by the Commission in the facts and circumstances of each such case.

In the case before the High Court of Delhi, the PIO, who appeared before the Commission admitted that the photo copy of the report made available to the Commission was signed by the concerned Joint Secretary and director at the relevant time. Prima facie, they would have signed the documents only if they had received either the original report or its copy. the endorsement made on the cover of the documents would show that the report /copy on which endorsement was made was signed by the Secretary, Tourism, Government of Kerala. Had a thorough inquiry been made by inquiring from the concerned officer to find out as to where, when and in what circumstances they had signed the documents, it could have been possible to locate the report in the records of the government.”

For the reasons stated hereinabove, the court found no merit in the writ petition and the same was dismissed. it is directed that a thorough and meaningful inquiry in terms of provisions of the directions of the Commission be carried out by an officer not below the rank of a Joint Secretary to the Government within eight weeks from today and a copy each of the said report to be provided to the Commission as well as to the respondent before the Court.

The petitioners were directed to circulate a copy of the order to all the CPIOs /PIOs of the Government of India and other Public Authorities, within four weeks for information and guidance.

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Part C Information on & Around

CDR Cell:
Corporate Debt Restructuring Cell has refused to the RTI query about its operations saying RTI , transparency law, does not apply to it.

CDR is a self-empowered body, which provides broad guidelines and policies to be followed by itself and the administrative, operating and other costs of CDR cell is shared by all financial institutions and Banks.

Based on this, Shailesh Gandhi, former Central Information

Commissioner holds the view that RTI Act applies to them. However, CDR Cell holds the view that it is neither owned, controlled or substantially financed directly or indirectly by funds provided by the appropriate government. Hence, CDR Cell is not a public authority as defined u/s. 2(h) of the RTI Act.

In the first Appeal before FAA, he also ruled that “CDR Cell is not a public authority under the RTI Act, and hence, we are unable to entertain application under the RTI Act”.

Matter would now go to the Central Information Commission.

Information on Netaji Subhash Chandra Bose:

In Jan. 15 issue in Part C this item was carried. Now Mr. S. C. Agrawal, the RTI appellant has reacted on it and has said:

“According to section 8(2), Public interest definitely overweighs the protected as several committees have been formed by the Union government to probe the mystery behind Netaji’s death. The Central Public Information Officer did not even name the country with which relations are likely to be prejudicially affected”.

BCAS RTI Clinic:
Reproducing one letter received by me from one visitor, at BCAS RTI Clinic Aurobindo Das:

I approached your office in January 2014 to seek guidance regarding inflated water bills charged by P/S Ward, Goregaon West, BMC Water Department, for nearly two years to our housing society. The Asst. Engineer, Water Works refused to give us the information about the basis on which and the methods followed by the billing department. Adv. Anilkumar K. Asher has guided me since then till the hearing stage of my 2nd appeal. He accompanied me to the office of the MSIC on 24.09.2014. And I am pleased to inform you that the Order of the appeal was in my favour. Enclosed please find the copy of the Order.

Sir, I am personally grateful and thankful to all of you for the help & guidance that have been accorded to me”.

Note: Copy of the Order received in Marathi is not reproduced here. Many visitors get such positive results by acting on our advice but do not write on their success.

RTI & CPA :
There were conflicting judgements of the National Commission as to whether an applicant seeking information under the RTI Act would be a consumer or not. Certain two member benches had held that an RTI applicant who pays fees for the information would be a consumer, while other benches had held a consumer complaint would not be maintainable since the RTI Act provides its own channel of appeals.

Hence, a three-member bench was constituted to settle the law. The national commission addressed to two issuesfirstly, whether a person seeking information under RTI Act can be said to be a consumer and if it is held that he is a consumer, can a complaint to file under the Consumer Protection Act, or would this remedy be barred by the RTI Act provisions.

The national commission observed that it is a settled legal proposition that when a right is created by a statue which also provides for an adequate and satisfactory remedy to enforce that right, a person must avail of the mechanism available under the relevant act. The Public information officer is actually discharging a statutory function and not rendering any services. Besides, Section 23 of the RTI Act bars the jurisdiction of courts.

By its order of January 8, the national commission concluded that it is not permissible to have two parallel machineries for enforcement of the same rights created by the RTI Act, which a special statute. If a consumer complaint is permitted, it would defeat the purpose of providing a special mechanism under the RTI Act.

An RTI applicant is not entitled to file a consumer complaint for deficiency in service. He must follow the appeal procedure prescribed under the RTI Act.

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Part B RTI act, 2005

In the last two issues of BCAJ, I had briefly summarised chapters 1 & 2 of “PEOPLES’ MONITORIN G OF THE RTI REGIME IN INDIA 2011-13”. Same is being serialised. However, I am postponing it to the next issue to continue on the same. This issue covers report on online RTI facility.

Maharashtra’s launch of facility for filing RTI Application online.

Earlier Central Government had prescribed online facility www.centralrtionline.gov.in.

That of Maharashtra is www.rtionline.maharashtra. gov.in .

Facility has started from 01.01.2015.

http://www.rtionline.maharashtra.gov.in/request/ request.php?lan=E is the site that is in Marathi and English, has the facility for filing application and for first appeal. It also has an option to know the status of one’s application. The mode of payment (RTI application fees) is internet banking, ATM cum debit card and credit card (Master/Visa).

Thirty one of the 37 departments in Mantralaya are shown on the site. All the departments within Mantralaya would be covered first. The facility would be expanded to other public authorities later. Once an application is filed, the applicant will be given a registration number through SMS and email.

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Part A DECISION OF H.C. & CIC

Right of appeal Complaint u/s. 18(1) of the RTI Act :

In January 2015, in part A, I had referred to the Delhi High Court’s order and instead of analysing it, had reproduced an Analysis of that order by Mr. Venkatesh Nayak, Programme Co-coordinator of CHRI. Now I summarise the said HC’s order dated 05.12.2014.

The petitioner, R. K. Jain, inter alia, impugned an order dated 14.02.2014 passed by respondent no. 3 – Central Public Information Officer & Administrative Officer, Income Tax Settlement Commission, denying the information, which was earlier directed to be supplied to the petitioner under the provisions of the Right to Information Act, 2005.

The impugned order indicated that the order dated 26.09.2013 passed by PIO pursuant to an application filed by the petitioner under the RTI Act; and the order dated 21.10.2013 passed by FAA in an appeal preferred by the petitioner against the order dated 26.09.2013, were set aside as being void ab-initio by the Chairman, IT settlement Commission as an administrative head of the Income Tax Settlement Commission.

The principal Controversy to be addressed is whether, respondent no. 1 could declare by an administrative order, the orders passed by respondent nos. 2 (PIO) & 4 (FAA ) as being void ab-initio.

The petitioner had filed RTI application seeking information, inter alia, with respect to disposal and pendency of matters before the Income Tax Settlement Commission. In response to this application, CPIO and Joint Commissioner of Income Tax, the Income Tax Settlement Commission passed an order dated 26.9.2013 furnishing certain information to the petitioner. However, by the said order certain other information as sought for was denied. The petitioner preferred an appeal before the First Appellate Authority. The said appeal was partly allowed by an order dated 21.10.2013.

On response to the reminder letters to PIO by Mr. Jain, received the order from PIO in which he referred to an administrative order passed by the respondent no. 1; the extract of which as quoted in the impugned order reads as under:

“As there has been total no-compliance by the JDIT-II and DIT (Inv) of the provisions of the RTI Act, 2005 and notification by the Chairman, ITSC, New Delhi order no. C-26016/1/05/SC-RTI /1178 dated 29/31-07-2013, the orders of even numbers dated 26.09.2013 and 21.10.2013 passed by the JDIT and DIT (Inv) are ab initio void and are annulled. The RTI application will be disposed of in accordance with the provisions of the RTI Act, 2005 and notification by the Chairman, ITSC, New Delhi order no. C-26016/1/05/SC-RTI /1178 dated 29/31-07-2013 by the Administrative Officer, (CPIO), ITSC, Principal Bench, New Delhi at the earliest.”

The Judge, Hon. Vibhu Bakhru then wrote:

“I am unable to accept that such orders passed in exercise of statutory powers could be declared as a nullity or void by an administrative order without recourse to the hierarchy of authorities as specified in the statute – the RTI Act. In the event, the respondent no. 1 was of the view that the orders passed by PIO & FAA were without authority of law, the proper and the only course would be to file an appeal before the Central Information Commission (hereafter the ‘CIC’) or any other competent judicial forum. However, the said orders could not be nullified by an administrative order”.

“The learned counsel appearing for the respondents further submits that the present writ petition ought not to be entertained as the petitioner would have an alternative remedy to approach the CIC by way of a complaint u/s. 18(1) of the RTI Act”.

“Undoubtedly, the CIC would have the power to enquire into any complaint in respect of matters relating to access of information under the RTI Act. However, it is apparent, in the present, case that respondent no. 1 has acted without authority of law in nullifying orders passed under the RTI Act; thus, interference with the impugned order is warranted in these proceedings”.

The court then ruled:

“In view of the above, the impugned order is set aside. However, it will also be open for the respondents to approach the CIC to assail the orders dated 26.09.2013 and 21.10.2013 passed by PIO & FAA . Needless to mention that if an appeal is filed before the CIC by the public authority (the Income Tax Settlement Commission); the same would be considered in accordance with law”.

[R. K. Jain vs. Chairman, Income Tax Settlement Commission & Ors. in W.P. (C) 2939/2014, in HC of Delhi dated 05.12.2014]

Section 18 of the RTI Act :
The Complainant Raghubir Singh through his RTI application dated 25.09.2013 had sought for information on 2 Points, viz i) Which of the Government Secondary Schools in Delhi under the Directorate of Education, have introduced Punjabi teaching as a third language for the first time afresh in class VI in the academic year 2010- 2014; ii) the number of such students enrolled in Class VI, School-wise. The RTI application of the Complainant was returned to him stating that the Indian Postal Order (IPO) was not in order. Claiming non-furnishing of the information sought, the Complainant has approached the Commission u/s. 18 of RTI Act.

Both the parties made their submissions. The Complainant, Shri Raghubir Singh is a senior citizen of 75-years old and a law teacher who is associated with the making of the RTI Act before its enactment by the Government. The Commission heard him on the telephone as desired by him. He complained that the Directorate of Education had harassed him by raising meaningless technical issues. They returned the Indian Postal Order of Rs. 10/- saying that it is not properly drawn, when he claims to have rightly drawn in favour of the Accounts Officer. The Complainant objected to the returning of the Postal Order by PIO by speed post, for which he had to spend more than Rs. 25. He complained that the Directorate has not updated its web-site and appropriate against whom the Postal Order should be drawn or fee to be paid was not given.

The Commission then reproduced Full Bench Decision of CIC in S. C. Aggrawal vs. Ministry of Home Affairs dated 27.08.2013. Said decision is “a landmark”, very well written in the spirit of the RTI Act. I am posting it on BCAS website www.bcasoline.org and PCGT’s web www.rtiforyou.info . You may also go on CIC’s website to read it.

After the above, the Commission ruled:

The Commission directs the PIOs to check up whether every school has properly replied to the RTI application, if not fulfill the deficiencies. The Commission also directs them to contact the Complainant on the telephone number 011-23363510, given by him, and provide the complete information within 15 days from the date of receipt of this order. ? T he Commission directs the respondents, their PIOs and in charge officers to immediately update their official website as desired by the Complainant and compliance report be sent to the Commission, with a copy to the Complainant, within ten days from the date of receipt of this order.

The Commission directs all the PIOs of Directorate of Education, all other officers concerned, to accept the IPO without raising technical objections and follow all the directions issued in the above referred full bench order of CIC. They should not spend any amount instead of encashing the IPO for Rs. 10 as prescribed-fee.

The Commission directs all the PIOs of Public Authority to submit separate reports to this Commission explaining how many IPOs they have rejected so far and what are the grounds of rejection, from January 2014 to December 10, 2014. Within 15 days from the date of receipt of this order.

The Commission issues a show cause notice to PIO who refused and returned the IPO of appellant, why maximum penalty cannot be imposed against the spirit of RTI and harassing the applicant and for not updating the official website.

[Shri Raghubir Singh vs. Director of Education: CIC/ SA/C/2014/000038 dated 12.12.2014]

Notes:

I am happy to note that Mr. Raghubir Singh, senior citizen made this appeal to CIC. He was associated with the making of the RTI Act before its enactment. That put some more pressure on CIC to pass such favourable order. Same would improve the performance on matters related to RTI by Public Authorities. This judgement and the one referred to in this order need to be circulated widely.

Based on above decision, DOPT (www.persmin.gov.in ) has issued a circular dated 14.01.2015 on the subject “introduction of postal stamps as rti fee/cost – seeking comments from public regarding”. Comments were to be sent latest by 07.02.2015 through email only to Shri. R. K. Girdhar, under Secretary (RTI), at usrti-dopt@nic.in. this issue would reach the readers after that date. May be the date gets extended or DOPT may still accept late communication from you.

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PART C: Information on & Around

Govt. to challenge SCIC order against CP Rakesh Maria :
The state government has decided to challenge Chief Information Commissioner Ratnakar Gaikwad’s order to institute a judicial probe against Police Commissioner Rakesh Maria for providing misleading information to the widow of a police officer gunned down by Pakistani terrorists in the November, 2008 attacks.

The CIC’s order against Maria had accepted slain officer Ashok Kamte’s wife, Vinita Kamte’s allegations, that there were discrepancies between two copies of call logs of wireless conversation between the control room and Kamte’s van, in which he was shot down by terrorists along with the then Maharashtra ATS chief Hemant Karkare and encounter specialist Vijay Salaskar.

She had charged that there was a delay in sending help to her injured husband and his colleagues and that the call logs were tampered with to hide this. She had also alleged that information about who directed her husband and his colleagues to follow the terrorists into the Cama Hospital lane, where they were ambushed, was denied to her.

RTI activist Anil Galgali said the CIC had exceeded its brief in ordering the judicial inquiry.”Gaikwad has been appointed by the state government to give information and thereby give justice. But he has no powers to order an inquiry. The job of the State Information Commission is to provide information. They have failed in that,” he said.

No plan to strip Saif of Padma Shri:
The home ministry denied any move to strip actor Saif Ali Khan of his Padma Shri award, conferred on him in 2010, in the wake of a Mumbai court framing charges against him for assaulting an NRI businessman at a city hotel.

“The home ministry’s reply to the RTI filed by SC Agarwal to know the status of his own complaint, stating that the matter is under examination, is a routine response to any query that relates to a pending complaint. The home ministry has to call for necessary records from the state government or the court to validate the charges made in the complaint… this takes time and the merits of the complaints are finally decided on the basis to be under examination,” a senior home ministry official said.

Above was in reply to SC Agarwals RTI application to the home ministry

Gifts to PM Manmohan Singh:
From a fancy Bose music system to a glittering Piaget ladies wrist watch, former PM Manmohan Singh took home some 101 unique pieces of gift items that were given to him by heads of states whose countries he visited in his official capacity, an RTI query has revealed. But the government has refused to share details of Singh’s pay and perks, his parting comments or names of countries that gave the presents. Singh is permitted to retain gifts under the Foreign Contribution (Acceptance or Retention of Gifts or Presentations) Regulations, 1978 and its Rules, 2012.

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PART B: RTI Act, 2005

RTI & Political Parties: On 3rd June 2013 full bench of CIC passed a detailed Order (53 pages) holding that 6 political parties:
1) Indian National Congress/ All IndiaCongress Committee (AICC)
2) Bhartiya Janata Party (BJP)
3) Communist Party of India (Marxist) (CPM)
4) Communist Party of India (CPI)
5) Nationalist Congress Party (NCP) and
6) Bahujan Samaj Party (BSP)

are covered as “public authority” under the RTI Act (Covered in my article of July 2013). Last para of the order reads as under:

93. The Presidents, General/Secretaries of these Political Parties are hereby directed to designate CPIOs and the Appellate Authorities as their headquarters in 06 weeks time. The CPIOs so appointed will respond to the RTI applications extracted in this order in 4 weeks time. Besides, the Presidents, General/Secretaries of the above mentioned Political Parties are also directed to comply with the provision of section 4(1) (b) of the RTI Act by the way of making voluntary disclosures on the subjects mentioned in the said clause.

It appears that none of the said 6 parties acted on the above direction.

The Commission had issued notices on 7th February and 25th March, to these parties seeking their detailed comments on the complaint by Agarwal that they had not complied with the orders of the CIC. The notice had been sent to the chiefs of Congress, BJP, BSP and NCP and to the general secretaries of CPI and CPI-M.

In what could spell trouble for Congress president Sonia Gandhi, the Delhi HC in August, 2014 issued direction on a petition accusing her failure to abide by a Central Information Commission directive.

HC directed the CIC to decide in six months a complaint against Gandhi that she hasn’t implemented the transparency panel’s direction making political parties answerable under the RTI Act. The court acted on a petition filed by RTI activist R. K. Jain who had earlier approached the Commission with his complaint against Gandhi saying that party had returned his RTI application without furnishing details that were asked.

Now in the month of September 2014, The Central Information Commission (CIC) has issued showcause notices to BJP President Amit Shah and Congress chief Sonia Gandhi, along with the heads of four other political parties, asking why an inquiry should not be instituted for non-compliance of its order to implement the RTI Act.

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PART A: Decision Of CIC & High Court

In this article, I cover a few decisions of CIC and one of H.C, basically to inform briefly the views of CIC/H.C on the subjects covered.

Section 2(f) – Information:
The Hon’ble Delhi High Court in WP(C) No. 7265/2007 dated 25th September 2009 has observed as follows:

“Information as defined in section 2(f) means details or material available with the public authority. The later portion of section 2(f) expands the definition to include details or material which can be accessed under any other law from others. The two definitions have to be read harmoniously. The term held by or under the control of any public authority in section 2(j) of the RTI Act has to be read in a manner that it effectuates and is in harmony with the definition of the term information in section 2(f) of the RTI Act. It is well settled that an interpretation which renders another provision or part thereof redundant or superfluous should be avoided. Information as defined in section 2 (f) of the RTI Act includes in its ambit, the information relating to any private body which can be accessed by any public authority under any law for the time being in force. Therefore, if a public authority has a right and is entitled to access information from a private body, under any other law, it is information as defined in section 2(f) of the RTI Act.”

[WP (C) No. 7265/2007 dated 25th September 2009]

Section 2(f) – Information:
After hearing both the parties and on perusal of documents, the Commission observes that as deserving as the appellant might be for the post of Social Worker, he cannot ask interrogative questions from a public authority under the Act. The public authority is not bound to answer queries like whether he would be considered for the post since he has crossed the age limit or whether he will be granted any age relaxation and whether his merit will be considered or not. Interrogative queries viz. “How/Why/ When” do not come under the ambit of the RTI Act.

In Dr. Celsa Pinto vs. Goa State Information Commission (W.P.No. 419 of 2007), the High Court of Bombay, in its order dated 03.04.2008, held:

“The definition (of information) cannot include within its fold answers to the question “why” which would be the same thing as asking the reason for a justification for a particular thing. The Public Information Authorities cannot expect to communicate to the citizen the reason why a certain things was done or not done in the sense of a justification because the citizen makes a requisition about information. Justifications are matter within the domain of adjudicating authorities and cannot properly be classified as information.”

[G. Senthil Kumar vs. Dr. Raman, DoH, Directorate of Health & Family Welfare Services, Puducherry – File No. CIC/SS/A/2013/000838-YA: Decided: 28.05.2014]

Section 6(1) &7(1) of the RTI Act:
This matter pertains to an RTI application dated 03-05- 2012 filed by the Appellant, seeking information on twelve points. The CPIO responded on 04-06-2012 and asked the Appellant to deposit photocopying charges, amounting to Rs. 48, to obtain the information running into 24 pages. The CPIO also asked the Appellant to deposit postal charges of Rs. 25.

We note that no further action pending on this RTI application on the part of the Respondents. We also note that the CPIO erred in asking for postal charge of Rs. 25. Accordingly, we direct the CPIO that in case the Appellant deposits the amount of Rs. 48, the information running into 24 pages should be provided to him, within 15 days of deposit of the above amount by him.

[Navneet Singhania vs. CPIO, Oriental Bank of Commerce, Regional Office: Ranjeet Avenue, Amritsar – File No. CIC/VS/A/2012/000711/SH: Decided 05-05-2014]

Section 7(1) of the RTI Act:
The Appellant stated that the FAA had not given him a personal hearing despite his request to that effect. In this context, we advice the FAA that in the interest of natural justice, he should give a personal hearing, in case requested by a person filing an appeal to him on an RTI matter.

The Appellant has drawn our attention to the fact that the CPIO has not been mentioning his name in his replies to RTI applications. In this context, we inform the Respondents the decision of the Commission that the CPIOs and FAAs should mention their name, address, telephone and fax number in all correspondence on RTI matters. The CPIO is directed to ensure compliance with the above decision of the Commission.

[Chayan Ghosh Chowdhury vs. CPIO, Union Bank of India, Lucknow – File No. CIC/VS/A/2013/001508/SH: decided on 23-05-2014]

If readers appreciate this kind of my write ups, I shall continue whenever any landmark decision is not available.

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PART C: Information on & Around

PM’s wife files an RTI application:
Jashodaben, wife of Prime Minister Narendra Modi, kicked up a storm by filing an RTI application seeking information about her security protocol and on whose order she was being provided armed guards.

She filed the application before the Mehsana Superintendent of Police, complaining that her guards have refused to share with her the official order directing them to protect her.

Her application seeks information about “all protocol and facilities, especially security details that is the right of a prime minister’s wife”.

Apart from the fact that the guards do not carry any official orders with them, there are two other points which the RTI application reveals that Jashodaben is miffed about:

While she travels by public transport, her guards tail her in air-conditioned cars.

The guards demand to be treated like family’s guests. Jashodaben has also sought to know what other privileges she is entitled to as the wife of the Prime Minister of India. “I am the wife of the Prime Minister of India and have been extended security as per protocol. What other service can be extended to me under the protocol? Please give me detailed description of the protocol,” her application reads.

Information on Netaji Subhash Chandra Bose:
The Prime Minister’s Office in a recent RTI reply accepted that there were 41 files related to Bose, of which two had been declassified, but refused to disclose them, taking a position similar to that of the erstwhile Congress-led UPA government.

“Disclosure of documents contained in these files would prejudicially affect relations with foreign countries. As such, these files are exempted from disclosure u/s. 8(1) (a) read with Section 8(2) of the Right to Information Act,” the PMO said in this reply to RTI activist Subhash Agrawal.

Vasectomy & Tubectomy:
Tubectomy is a permanent birth control surgical procedure. Fallopian tubes are blocked to prevent fertilised eggs from reaching the uterus and embedding there; it also prevents sperms from reaching the egg.

Vasectomy is a minimal invasive procedure from permanent birth control. The two tubes that carry sperms from testicles to urinary tract are surgically severed and sealed. Post surgery, sperms cannot pass through to fertilise a woman’s egg.

The RTI data accessed by activist Chetan Kothari bares the trend of teenage girls going for Tubectomy till five years ago. In 2002-03, 119 girls aged 15 to 19 underwent the procedure, with the instances dipping to 10 or 15 a year. In 2007, the minimum age for Tubectomy was raised to 22 years. A near double incentive for those opting for vasectomy has also failed to lure many men. The number temporarily rose to 4,661 in 2008-09 and 3,927 between 2008 and 2010, only to dip drives dwindled. Since then, it has been a steady downfall with Tubectomy again dominating family planning centers.

Black Money:
The government has denied disclosure of information under RTI on how many requests it has made to other countries with which India has Double Tax Avoidance Agreement (DTAA ) or a Tax Information Exchange Agreement, citing national interest and confidentiality.

CHRI’s Venkatesh Nayak had sought information on the subject from 2011 to October 2014.

However, in response to RTIs, the finance ministry said that it could not disclose the information citing section 8(1) (a) and 8(1) (f) of the Act.

The sections forbid disclosure if the information is against national interest or if the information has been given b a foreign government on condition of confidentiality.

Pointing out this anomaly, Nayak said the bar in the confidentiality clause in DTAAs was only about person-specific information and not for numbers, adding that the government had already made this information public in an international forum.
But when a citizen asks for the number of requests it has made to other countries and shows what is the public interest in disclosing such information, they invoke section 8(1)(a) and (f). So just like in the Ram Jethmalani case, the government thinks it is more loyally bound to foreign countries under its DTAA s and not to even the court or its own citizens in terms of transparency. These DTAA s are not ratified or even placed before Parliament,” Nayak said. Recently the SC ordered the government to hand over the names of accountholders who have stashed black money abroad.

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